CopyCited 23 times | Published | Supreme Court of Georgia | Nov 2, 2015 | 779 S.E.2d 263
...At trial, the jury acquitted Wetzel of child
molestation in violation of OCGA §
16-6-4 (a) (2) (Count 2), but it convicted
him of computer pornography and child exploitation in violation of OCGA § 16-
12-100.2 (d) (1) (Count 1) and of electronically furnishing obscene material to
a minor in violation of OCGA §
16-12-100.1 (b) (Count 3).
The computer pornography conviction was based on the State’s argument
at trial that the jury gets to decide whether, in its opinion, Wetzel’s conduct
should be deemed “an unlawful sexual offense against a child,” as that phrase
is used in §
16-12-100.2 (d) (1)....
...Wetzel was indicted for computer pornography, tracking the language of
OCGA §
16-12-100.2 (d) (1) (Count 1); child molestation, tracking the language
of OCGA §
16-6-4 (a) (2) (Count 2); and electronically furnishing obscene
material to minors, tracking the language of OCGA §
16-12-100.1 (b) (1) (A)
(Count 3)....
...not be surprised at trial or prosecuted for the same offense twice).
(b) The offense that Wetzel was charged with (and convicted of)
in Count 3 of the indictment – electronically furnishing obscene material to a
minor in violation of OCGA §
16-12-100.1 (b) (1) (A) – is not enumerated in §
16-12-100.2 (d) (1), so in theory it could have been referenced by the “unlawful
sexual offense against a child” allegation in Count 1.8 However, Wetzel did not
8
Count 3...
...of a human body which depicted sexually explicit nudity, to wit: uncovered male
genitals in a discernibly turgid state, said photographs not being an incidental part of
an otherwise nonoffending whole and which was harmful to minors; in violation of
OCGA §
16-12-100.1 (b).
17
also violate §
16-12-100.2 (d) (1) when he committed that offense.9
A violation of §
16-12-100.2 (d) (1) requires that the defendant use an
electronic device “to sedu...
...may
merely solicit or entice the child with the aim of engaging in the relevant criminal
conduct – there must be such a solicitation or enticement that allows, or would
allow, the predicate crime to be committed.
Wetzel’s violation of §
16-12-100.1 (b) (1) (A), as alleged in Count 3, was
complete as soon as he sent the emails with the pictures of his erect penis to
S.B.J., thereby furnishing someone he knew or should have known was a minor
9
OCGA §
16-12-100.1 (b) (1) (A) said in 2011 and still says today:
(b) A person commits the crime of electronically furnishing obscene materials to
minors if:
(1) Knowing or having good reason to know the character of the...
...and further assuming that Wetzel sent them intending to seduce, solicit, or entice
S.B.J. to send sexually explicit photos of herself back to him (since the
allegations of Count 1 speak of “sending and receiving of nude photographs”),
Wetzel – an adult – would not violate §
16-12-100.1 (b) (1) (A) by receiving
sexually explicit pictures from a minor.10 Accordingly, as a matter of law, the
violation of OCGA §
16-12-100.1 (b) (1) (A) alleged in Count 3 could not be the
10
In its supplemental brief and at oral argument, the State suggested that to violate OCGA
§
16-12-100.2 (d) (1), a person must seduce or solicit a minor to commit...
...would.” (citations omitted)). But even if we were to construe the statute as the State suggests, and
even if there was sufficient evidence to find that Wetzel was soliciting S.B.J. to send him sexually
explicit pictures of herself, S.B.J. could not violate §
16-12-100.1 (b) (1) by sending obscene
material to Wetzel, because she knew Wetzel was an adult and the statute makes it a crime to
electronically furnish sexually explicit pictures “to an individual whom the person knows or should
have known is...
...f his remaining challenges
to his conviction on that count, including his constitutional challenge to § 16-12-
100.2 (d) (1).11
4. We turn now to Wetzel’s challenges to his conviction on Count 3 of
the indictment for violating OCGA §
16-12-100.1 (b) (1) (A), which, as noted
above in footnote 9, makes it a crime to “electronically furnish[]” certain
11
Our reversal of Wetzel’s conviction on these non-constitutional grounds does not deprive
this Court...
...violation in 2011, “electronically
furnishes” was defined, in relevant part, as “[t]o make available by allowing
access to information stored in a computer, including making material available
by operating a computer bulletin board.” OCGA §
16-12-100.1 (a) (3) (B)
(2011).13 Wetzel argues that the word “including” as used in this provision is a
12
Wetzel also asserts that OCGA §
16-12-100.1 (a) (3) (B) is void for vagueness and
overbreadth, but he offers no argument to support this contention....
...the sense of addition, as we have seen, and of ‘also’ but, we have also seen,
‘may merely specify particularly that which belongs to the genus.’” (citation
omitted); Black’s Law Dictionary (6th ed. 1990) (“‘Including’ within statute is
§
16-12-100.1 (a) (3) (A), but there is no evidence or argument that this definition applies to
Wetzel’s conduct. The 2011 version of the statute defined “bulletin board system” as “a computer
data and file service that is accessed by telephone line to store and transmit information.” OCGA
§
16-12-100.1 (a) (1) (2011)....
...Subsection (a) (3) (B)
was amended to add the word “system,” so it now reads “computer bulletin board system,” and the
definition of “bulletin board system” is now “a computer data and file service that is accessed
wirelessly or by physical connection to store and transmit information.” OCGA §
16-12-100.1 (a)
(1), (a) (3) (B)....
...legislature used
“including” in a particular statute depends on the exact language, context, and
subject matter of the statute. See Berryhill,
281 Ga. at 440-442. When viewed
in this way, it becomes clear that “including” is used in OCGA §
16-12-100.1 (a)
(3) (B) to expand, rather than to limit, the ways by which obscene materials may
be “ma[de] available [to minors] by allowing access to information stored in a
computer.”
We first examine the immediate context in which “including” appears in
this statute. Unlike in Berryhill, where “includes” was followed by two very
detailed specific phrases, see
281 Ga. at 441, “including” in §
16-12-100.1 (a) (3)
(B) is followed by only one specified method of making stored computer
information available: “by operating a computer bulletin board.” If that single
and straightforward method were meant to be the only prohibited way o...
...on a
computer” was meant to be read expansively, then why was it necessary to
specifically enumerate “operating a computer bulletin board”? To answer this
question, it helps to consider the status of computer-based communications when
OCGA §
16-12-100.1 was enacted in 1993....
...See Jones, supra, at 47.
Given the growing popularity, potentially wide audience, and anonymity
offered by bulletin boards as of 1993, it made sense for the General Assembly to
want to ensure that those systems would be understood as coming within the
scope of OCGA §
16-12-100.1....
...ing that because a cell phone was
not similar to the listed examples, it was not encompassed by the statute).16
16
Wetzel relies heavily on Frix because in that case the Court of Appeals held that
“including” as used in OCGA §
16-12-100.1 (a) (3) (A) – the other subsection defining
“[e]lectronically furnishes” – is a word of limitation, and that sending a text message using a cell
phone does not constitute making obscene material available “by electronic stora...
...case whether the
27
But there is even more reason to conclude that the specific mention of
computer bulletin boards in the statute was meant to expand rather than restrict
the reach of OCGA §
16-12-100.1, and indeed that it was important for the
General Assembly to include this specific example to ensure that this type of
electronic furnishing would be covered under the statute....
...Thus, system administrators could allow
access to obscene information stored in a computer not by making the
information available to minors themselves, but by allowing other users to post
it and minors to view it. The phrase the General Assembly added after
“including” in §
16-12-100.1 (a) (3) (B) made sure that the statute would reach
those linchpin computer bulletin board operators; it did not limit the statute to
holding of Frix was correct or would be correct as applied to all uses of cell phones or to all cur...
...28
their operations.
The final indicator of the statute’s meaning comes from the fact that the
General Assembly chose to retain (with technologically updated languge) the
“operating a computer bulletin board” phrase when OCGA §
16-12-100.1 was
amended in 2013....
...If, however, the legislature wanted to make
sure that all such methods remained covered – even the increasingly unusual
situation of bulletin board operation – then the 2013 amendments served a
meaningful purpose.
For these reasons, OCGA §
16-12-100.1 is properly read to prohibit
providing obscene materials to minors not only through operating a computer
bulletin board but also through any other method of “allowing access to
information stored on a computer.” Sending an email is one of those other
29
methods....
...hen she opened the emails, she
retrieved that information. In this way, Wetzel “electronically furnishe[d]” the
material alleged in Count 3 to S.B.J. by providing her with access to information
stored on a computer, within the meaning of OCGA §
16-12-100.1 (a) (3) (B).
And the jury instruction on this count tracked the language of the statute on this
point.17
17
The trial court instructed the jury on the meaning of “electronically furnishes” using the
definitions in both OCGA §
16-12-100.1 (a) (3) (A) and (B)....
...30
(b) Wetzel next contends that his conviction on Count 3 must be
reversed because the State failed to prove that he knew or should have known
that S.B.J. was under age 18. OCGA §
16-12-100.1 prohibits electronically
furnishing obscene material “to an individual whom the [defendant] knows or
should have known is a minor,” and defines “minor” as “an unmarried person
younger than 18 years of age.” OCGA §
16-12-100.1 (a) (5), (b) (1)....
