Chalifoux v. State

Bernes, Judge. Following a jury trial, Louis Chalifoux was convicted of two counts of child molestation. The trial court sentenced Chalifoux to fifteen years to serve on the first count, and fifteen years on the second count, five years to serve and ten years on probation. The sentences were ordered to run consecutively. Chalifoux argues on appeal that his convictions should have merged, thus rendering his sentence void. We disagree and affirm. A person commits the crime of child molestation when he “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). Count 1 of the indictment alleged that Chalifoux molested the child victim “by touching said child’s genitals with his fingers.” Count 2 of the indictment alleged that Chalifoux molested the child victim “by exposing his sex organ to said child.” Under Georgia law, certain convictions merge and multiple punishment may be precluded when the same conduct establishes the commission of more than one crime. See OCGA § 16-1-7 (a); Drinkard v. Walker, 281 Ga. 211, 212-213 (636 SE2d 530) (2006). But, the rule prohibiting multiple convictions does not apply unless the same conduct of the accused establishes the commission of multiple crimes. See Waits v. State, 282 Ga. 1, 4 (2) (644 SE2d 127) (2007); Drinkard, 281 Ga. at 212-213; Goss v. State, 289 Ga. App. 734, 738-739 (3) (b) (658 SE2d 168) (2008). Here, Chalifoux’s conviction on Count 1 was based upon his touching of the victim’s genitals, whereas his conviction on Count 2 was based upon the exposure of his sex organ to the victim. Because Chalifoux’s separate convictions were not premised upon the same conduct, no merger was required. See Goss, 289 Ga. App. at 738-739 (3) (b); Parker v. *120 State, 283 Ga. App. 714, 722 (5) (642 SE2d 111) (2007); Lunsford v. State, 260 Ga. App. 818, 820-821 (1) (581 SE2d 638) (2003). Decided January 26, 2010. Louis Chalifoux, pro se. J. David Miller, District Attorney, Laura A. Wood, Assistant District Attorney, for appellee. Judgment affirmed. Smith, P. J., and Phipps, J., concur.