☢ test - Í

samples taken under OCGA § 24-4-60 not violative of Fifth Amendment right against self-incrimination because they are ‘not testimonial in nature.’) Because no constitutionally protected privacy interest was implicated, and as we have indicated, had Dingler’s motion been heard and denied, no error would have resulted. Kincade, supra 379 F.3d at 837(III)(B)(1); Padgett, supra, 294 F.Supp.2d at 1345(III)(E).” Widner v. State, 280 Ga. 675, 631 S.E.2d 675 (June 26, 2006). Defendant’s act of sodomy with a minor not protected by a constitutional right of privacy. “Widner … contends that, based on our decision in Powell v. State, 270 Ga. 327 (510 S.E.2d 18) (1998), his sentence of ten years violates his constitutional right of privacy. ‘ Powell [, however,] did not hold that the right to privacy protects sodomy generally. See Howard v. State, 272 Ga. 242, 243(1) (527 S.E.2d 194) (2000). [Widner’s] sexual conduct with a minor is not protected by any privacy right. Phagan v. State, 268 Ga. 272, 273(1) (486 S.E.2d 876) (1997).’ Odett [ v. State , 273 Ga. 353, 354(2), 541 S.E. 2d 29 (2001)].” King v. State, 276 Ga. 126, 577 S.E.2d 764 (January 27, 2003). “[A] defendant’s constitutional right to privacy is not violated when the State obtains private medical records through a search warrant without notice to the defendant or a hearing on the request.” Distinguishes King v. State, 272 Ga. 788, 535 S.E.2d 492 (2000), prohibiting obtaining defendant’s medical records by subpoena. Accord, Ellis v. State , 275 Ga.App. 881, 622 S.E.2d 89 (October 17, 2005); Rylee v. State , 288 Ga.App. 784, 655 S.E.2d 239 (November 13, 2007) (in DUI case, “Rylee’s exercise of his statutory right to refuse a state-administered test is entirely independent of the State’s prerogative, pursuant to a warrant obtained in accordance with the Fourth Amendment, to obtain other evidence of a crime – here, the results of a blood test administered in the course of Rylee’s medical treatment.”); Stubblefield v. State , 302 Ga.App. 499, 690 S.E.2d 892 (February 10, 2010); Bowling, (October 17, 2011), above . State v. Eastwood , 243 Ga.App. 822, 535 S.E.2d 246 (May 4, 2000). Trial court properly vacated defendant’s guilty plea to sodomy in light of Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998). Powell applies to all acts of “private, unforced, noncommercial acts of sodomy between consenting persons,” including here, acts between high school teacher and student of age to consent, which occurred in private. “Despite the State's contentions, nothing in Powell … could be construed to create an exception whereby the acts of sodomy Eastwood engaged in with her student would remain criminal under OCGA § 16-6-2. … This is not to say, however, that the State cannot enact a criminal statute prohibiting the acts Eastwood engaged in with her student. Where the State demonstrates a compelling interest in prohibiting certain types of sexual conduct, it may impose limitations on the right to privacy by enacting criminal statutes narrowly tailored to prohibit such conduct. Powell v. State , 270 Ga. at 333, 510 S.E.2d 18; Howard v. State, 272 Ga. 242, 527 S.E.2d 194 (2000).” Thus, defendant’s plea of guilty under “OCGA § 16-6-5.1, which imposes criminal penalties on a person who has sexual contact with a student enrolled in a school when that person has supervisory or disciplinary authority over the student,” was properly allowed to stand. Morrison v. State, 272 Ga. 129, 526 S.E.2d 336 (February 14, 2000). Convictions for distributing obscene materials affirmed; “OCGA § 16-12-80(c), which defines as obscene ‘[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs....’ is not unconstitutional for any of the reasons cited by defendant. “In prior cases, this Court has ruled on almost all of the constitutional attacks which Morrison raises in this appeal. Devices which are within the definition of OCGA § 16-12-80(c) are not protected expressions under either the First Amendment of the Federal Constitution or the free speech clause of the Georgia Constitution. Chamblee Visuals v. City of Chamblee, 270 Ga. 33, 34(2), 506 S.E.2d 113 (1998). See also Sewell v. State, 238 Ga. 495, 496(5), 233 S.E.2d 187 (1977). We have upheld the statute as against assertions that it violates the federal constitutional right of privacy, that it ‘is unconstitutionally vague and overbroad, that it invades free speech rights, constitutes a prior restraint, and violates due process.’ Pierce v. State, 239 Ga. 844, 845, 239 S.E.2d 28 (1977).” Statute also doesn’t violate right of privacy under Georgia Constitution, distinguishing Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998): “ Powell involved non- commercial sexual activity and expressly recognized that ‘a defendant may not successfully assert a privacy right when the acts are committed ... in exchange for money ([cit.])....’ Powell v. State, supra at 332(3), 510 S.E.2d 18. Therefore, the right of privacy conferred by our state constitution, like that in the federal constitution, does not extend to commercial sexual activity. … [P]ublic commerce in sex, even though consummated in private, is not afforded constitutional protection. The statute ‘forbids not use but distribution of certain materials.... [T]he privacy concept ... does not forbid prohibition of commerce in sex such as that involved in the instant cases. [Cit.]’ (Emphasis in original.) Pierce v. State, supra at 845, 239 S.E.2d 28. Devices within the definition of OCGA § 16-12-80(c) ‘are obscene as a matter of law.’ Sewell v. State, supra at 496(5), 233 S.E.2d 187. In United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 128, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), the Supreme Court of the United States specifically stated ‘that the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell

Made with FlippingBook Ebook Creator