Court upholds sentence of ex-deputy guilty of sodomy and sexual exploitation of children

Court upholds sentence of ex-deputy guilty of sodomy and sexual exploitation of children

July 24th, 2014 by Tyler Jett in Local Regional News

Stephen Crossen is led to the Catoosa County Sheriff's office in this file photo.

Photo by Joy Lukachick Smith/Times Free Press.

When is a "mandatory minimum" sentence not mandatory?

Last year, former Catoosa County Sheriff's Deputy Stephen Crossen pleaded guilty to charges of sodomy and sexual exploitation of children stemming from his relationship with a 16-year-old girl. Usually, those charges in Georgia lead to a "mandatory minimum" of five years in prison.

But in certain circumstances -- when first-time offenders don't use force during the crime, for example -- a judge in Georgia can ignore the mandatory minimum. That's what Judge Ralph Van Pelt Jr. did when he sentenced Crossen to two years behind bars last year.

Van Pelt argued that Lookout Mountain Judicial Circuit District Attorney Herbert "Buzz" Franklin failed to prove that Crossen deserved the mandatory minimum sentence. Franklin appealed.

Franklin said he didn't have to prove that Crossen deserved the mandatory minimum sentence. On the contrary, Franklin said, Crossen's defense attorney, McCracken Poston, had to prove that the former deputy didn't deserve the mandatory minimum.

On July 11, the Georgia Court of Appeals ruled against Franklin, upholding Crossen's two-year sentence. In her opinion, Judge Anne Elizabeth Barnes pointed out that the mandatory minimum law in this case does not specifically say who must prove whether the law applies: Franklin or Poston.

"This silence creates an ambiguity," Barnes wrote. "Where the language in a criminal statute is ambiguous, it must be construed in favor of the defendant. ... The state presented absolutely no evidence about the existence of any statutory factors that would prohibit the court from deviating [away from the mandatory minimum] on Crossen's sentence."

On Wednesday, Franklin said his office has declined to appeal the decision further to the Georgia Supreme Court.

"There's a lot of discretion they give the judges," he said. "Basically, they said given the facts presented to the court, they couldn't say that was outside the judge's discretion."

According to Georgia law, Crossen is allowed to have sex with a consenting 16-year-old girl. But he can't own naked photos of her or engage in oral sex with her. He did both of those things in February 2012, according to an indictment.

On Wednesday, Poston said the Court of Appeals was correct to uphold Crossen's sentence.

"Issues in the law, if not made clear by the Legislature that wrote the law, must be decided in the favor of the individual and not the government," Poston said in a statement. "The legislature can either clear it up, or leave this case as precedent for future courts to consider."

Contact staff writer Tyler Jett at 423-757-6476 or tjett@timesfreepress.com.