O.C.G.A. § 16-12-100.2 (2019)

Annotations

Law reviews. For note on the 2003 amendment to this

Code section, see 20 Georgia St. U. L. Rev. 84 (2003). For article, “Revenge Pornography and First Amendment Exceptions,” see 65 Emory L.J. 661 (2016). For article, “Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution the Problems with Pornography Regulation: Lessons from History,” see 68 Emory L.J. 867 (2019). For article, “Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution Changing Faces: Morphed Child Pornography Images and the First Amendment,” see 68 Emory L.J. 909 (2019). For annual survey of criminal law, see 71 Mercer L. Rev. 967 (2020).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATIONS APPLICATION General Considerations Statute was not unconstitutionally overbroad. - O.C.G.A. § 16-12-100.2(e)(1), obscene Internet contact with a child, did not effect a real and substantial constraint upon constitutionally protected expression and therefore did not violate the First Amendment’s free speech guarantee; the word “contact” was modified by the phrase “that is intended to arouse or satisfy the sexual desire of either the child or the person,” rendering it unlikely that innocuous communications would violate the statute. Scott v. State, 299 Ga. 568, 788 S.E.2d 468, 2016 Ga. LEXIS 460 (2016), cert. denied, 580 U.S. 1197, 137 S. Ct. 1328, 197 L. Ed. 2d 517, 2017 U.S. LEXIS 1961 (2017). Offenses prior to effective date. - To the extent that a defendant’s conduct

before the effective date of O.C.G.A. § 16-12-100.2 violated criminal statutes already in existence, there is no indication that the legislature intended to prevent prosecution under such statutes simply because the defendant utilized a computer in the commission of the crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182, 2000 Ga. App. LEXIS 547 (2000), cert. denied, No. S00C1515, 2000 Ga. LEXIS 839 (Ga. Oct. 27, 2000). Venue. - Use of computer online services in one county in the State of Georgia, even though the user is in another county, is sufficient to prove venue under O.C.G.A. § 16-12-100.2. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727, 2008 Ga. App. LEXIS 98 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. June 2, 2008), overruled in part, Gordon v. State, 334 Ga.

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App. 633, 780 S.E.2d 376, 2015 Ga. App. LEXIS 700 (2015). State not required to prove violation of statutes identified. - Contrary to the defendant’s claim, a violation of one of the other statutes named in O.C.G.A. § 16-12-100.2(d)(1) was not required to effectively charge a crime under the statute. Wetzel v. State, 298 Ga. 20, 779 S.E.2d 263, 2015 Ga. LEXIS 790 (2015). Direct communication is not requirement. - Georgia Supreme Court holds that direct communication is not required for a conviction under O.C.G.A. § 16-12-100.2(d)(1) as solicitation of a child to commit the acts prohibited may be conducted through an adult intermediary who is believed to be in a position of trust or authority with respect to the child. State v. Cosmo, 295 Ga. 76, 757 S.E.2d 819, 2014 Ga. LEXIS 290 (2014). Proof defendant knew victim’s age not required. - For purposes of O.C.G.A. § 16-12-100.2, the state was not required to present proof that the defendant knew the victim was under 16 at the time of the act and the trial court correctly denied the defendant a directed verdict on that basis. Wetzel v. State, 298 Ga. 20, 779 S.E.2d 263, 2015 Ga. LEXIS 790 (2015). Jurisdiction established for computer child exploitation offense. - State had jurisdiction to prosecute the defendant for computer child exploitation because the evidence showed that after being told that the person the defendant thought was a 14-year-old girl lived in Georgia, the defendant violated O.C.G.A. § 16-12-100.2 by utilizing computer on-line services to communicate with the purported child and entice the child to meet the defendant to engage in sexual activity. Brown v. State, 321 Ga. App. 798, 743 S.E.2d 474, 2013 Ga. App. LEXIS 412 (2013). Sex offender registration required. - Defendant’s convictions under the computer pornography and child exploitation act, O.C.G.A. § 16-12-100.2, required defendant to register as a sex offender pursuant to O.C.G.A. § 42-1-12, as defendant’s conviction for pornography and child exploitation under

§ 16-12-100.2(d) for the use of an on-line Internet service in the attempt to commit child molestation was within the definition of a “criminal offense against a victim who was a minor,” pursuant to O.C.G.A. § 42-1-12; defendant had communicated with a police officer who posed as a 14-year-old girl, sent her sexually explicit messages, and arranged a meeting with her. Spivey v. State, 274 Ga. App. 834, 619 S.E.2d 346, 2005 Ga. App. LEXIS 837 (2005), cert. denied, No. S05C2012, 2005 Ga. LEXIS 895 (Ga. Dec. 1, 2005). Crime of child molestation requires victim and accused to be in presence of each other. - Victim and accused must be together in order for the crime of child molestation to be committed pursuant to O.C.G.A. § 16-12-100.2. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727, 2008 Ga. App. LEXIS 98 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. June 2, 2008), overruled in part, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376, 2015 Ga. App. LEXIS 700 (2015). Trial court erred by convicting defendant of child molestation, pursuant to O.C.G.A. § 16-12-100.2, with regard to defendant’s actions of engaging in internet communications with an undercover police officer whom defendant thought was a 15-year-old child; the state only set forth that defendant was in one county and the victim was in another, which was insufficient to show that the victim and defendant were in the presence of each other as required by the statute. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727, 2008 Ga. App. LEXIS 98 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. June 2, 2008), overruled in part, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376, 2015 Ga. App. LEXIS 700 (2015). Statute expressly provides that use of operative or officer is not a defense. - Indictment and verdict against the defendant were not contrary to law because there was no actual victim and the victim described in the complaint, a fourteen-year-old female named “Sara,” was a fiction created by law enforcement agents was proper because O.C.G.A.

General Considerations (Cont’d) § 16-12-100.2(d) expressly provides that the sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation under § 16-12-100.2 shall not constitute a defense. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436, 2014 Ga. App. LEXIS 275 (2014), cert. denied, No. S14C1137, 2014 Ga. LEXIS 775 (Ga. Sept. 22, 2014). Application Trial court properly refused to apply the rule of lenity with regard to the defendant’s conviction under O.C.G.A. § 16-12-100.2(e)(1), and the defendant was not entitled to be convicted of only the misdemeanor offense of furnishing obscene material to a minor, in violation of § 16-12-100.1(b)(1)(B), because the defendant was charged with using Internet services to contact a person believed to be a 15-year-old child and that the contact contained explicit verbal descriptions of sexual conduct that were intended to arouse and satisfy the sexual desires of the defendant; the intent to arouse was not an element included in the misdemeanor offense. Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727, 2008 Ga. App. LEXIS 98 (2008), cert. denied, No. S08C0956, 2008 Ga. LEXIS 493 (Ga. June 2, 2008), overruled in part, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376, 2015 Ga. App. LEXIS 700 (2015). Solicitation through adult intermediary. - Just as solicitation of prostitution can be made through a third party pimp, solicitation of a child to commit the acts prohibited by O.C.G.A. § 16-12-100.2(d)(1) may be conducted through an adult intermediary who is believed to be in a position of trust or authority with respect to the child. State v. Cosmo, 295 Ga. 76, 757 S.E.2d 819, 2014 Ga. LEXIS 290 (2014). Entrapment not shown by defendant’s electronic communication. - Defendant was not entrapped by law enforcement because: (1) the defendant, via electronic communications, asked an undercover officer who was posing as a teenage girl to engage in sexual intercourse and oral

sodomy with the defendant, even after the “teenage girl” told the defendant that the teenage girl was 14 years old; (2) the defendant initiated the conversation during which a meeting was arranged and the defendant described in detail the sex acts which the defendant wished to perform on the teenage girl at the park where the two discussed meeting for sex; (3) when the defendant arrived at the park, the defendant possessed a condom on the defendant’s person; and (4) when the officers who stopped the defendant at the park explained that the officers were with a task force for Internet crimes against children, the defendant immediately responded that the defendant was at the park to counsel a 14-year-old girl about the dangers of meeting men from the Internet. Logan v. State, 309 Ga. App. 95, 709 S.E.2d 302, 2011 Ga. App. LEXIS 230 (2011), cert. denied, No. S11C1101, 2011 Ga. LEXIS 579 (Ga. July 11, 2011), cert. denied, 565 U.S. 1083, 132 S. Ct. 823, 181 L. Ed. 2d 533, 2011 U.S. LEXIS 8734 (2011). When the defendant was charged with using the Internet to seduce, solicit, lure, or entice a child or a person believed to be a child to commit an illegal sex act, under O.C.G.A. § 16-12-100.2(d)(1), attempted aggravated child molestation, under O.C.G.A. §§ 16-4-1 and 16-6-4(c), and attempted child molestation, under O.C.G.A. §§ 16-4-1 and 16-6-4(a), it was not error to deny the defendant’s motion for a directed verdict of acquittal based on entrapment because the jury’s determination that entrapment did not occur was supported by evidence that: (1) the defendant continued communicating with a person the defendant believed to be 14 years old, including having sexually explicit conversations with the person in which the defendant stated the defendant wanted “a lot of oral,” after the defendant learned that the person was 14 years old; (2) the defendant discussed with the person how the person could meet the defendant if the person could not drive, inquired whether the person had ever snuck away from home before, and stated that the defendant believed the union would be legal if the defendant were 16 years old, instead of the defendant’s

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actual age; (3) the defendant left the defendant’s home of Tennessee to meet a purportedly 14-year-old girl in order to have sex with the person, which the defendant admitted in the defendant’s statements to officers; and (4) the defendant brought condoms with the defendant, which the defendant stated were to prevent any “accidents” in the event the defendant was able to have sex with the person. Millsaps v. State, 310 Ga. App. 769, 714 S.E.2d 661, 2011 Ga. App. LEXIS 654 (2011). Defendant’s belief. - Under O.C.G.A. § 16-12-100.2(d)(1), even if a defendant believes that the defendant is communicating with a child, a communication is prohibited only if the defendant engages in the communication for a prohibited underlying purpose, seducing or enticing a child so that the defendant can commit an act of child molestation. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436, 2014 Ga. App. LEXIS 275 (2014), cert. denied, No. S14C1137, 2014 Ga. LEXIS 775 (Ga. Sept. 22, 2014). No merger with criminal attempt to commit child molestation. - Convictions for computer pornography and criminal attempt to commit child molestation did not merge for sentencing purposes because the substantial step element of the attempt charge was not required to prove the computer pornography charge, while the use of a cellular telephone or internet messaging service element was not required to prove the attempted child molestation charge. Franco-Arroyo v. State, 365 Ga. App. 369, 878 S.E.2d 609, 2022 Ga. App. LEXIS 446 (2022). Evidence sufficient to support conviction. - Evidence was sufficient to establish the defendant’s guilt of computer pornography and child exploitation in violation of the Computer Pornography and Child Exploitation Prevention Act, O.C.G.A. § 16-12-100.2(d)(1), because the evidence established that the defendant committed the offense by using a computer on-line service to solicit sex from a person who the defendant believed was a fifteen-year-old girl, an act which would have constituted child molestation; although the on-line solicitation crime

references child molestation as an underlying purpose, the principal act proscribed by the crime is solicitation and does not require the accomplishment of an act of child molestation. Bolton v. State, 310 Ga. App. 801, 714 S.E.2d 377, 2011 Ga. App. LEXIS 659 (2011). Victim’s testimony that the victim and the defendant exchanged text messages about penis sizes and containing nude photos was sufficient for a jury to find the defendant guilty of using a cell phone to solicit a child under 16 to send and receive nude photos. Wetzel v. State, 298 Ga. 20, 779 S.E.2d 263, 2015 Ga. LEXIS 790 (2015). In support of the defendant’s conviction for computer child exploitation, the jury was authorized to find that, through email, the defendant urged and requested a person the defendant believed to be a child to engage in immoral or indecent acts. Schlesselman v. State, 332 Ga. App. 453, 773 S.E.2d 413, 2015 Ga. App. LEXIS 329 (2015). Since O.C.G.A. § 16-12-100.2 listed on-line messaging service as a specific type of computer on-line service, an essential element of the offense, the evidence authorized a jury to find beyond a reasonable doubt that the defendant used an on-line messaging service to contact a child with explicit verbal and visual depictions of sexual conduct. Skelhorn v. State, 332 Ga. App. 782, 773 S.E.2d 45, 2015 Ga. App. LEXIS 348 (2015), cert. denied, No. S15C1661, 2015 Ga. LEXIS 711 (Ga. Oct. 5, 2015). Evidence was sufficient to convict the defendant of three counts of computer or electronic pornography and child exploitation as the evidence established that the defendant was the perpetrator because an officer created an online profile of a 14year-old girl for use in the officer’s investigations of Internet crimes against children; in pretrial interviews with the officer, the defendant admitted that the defendant’s username was the one that contacted the officer; that the defendant was the person in the pictures that were sent to the officer; and that it was safe to say that the defendant was the person chatting with the officer on the relevant dates and that it was the defendant’s

Application (Cont’d) penis shown on the webcam. Patch v. State, 337 Ga. App. 233, 786 S.E.2d 882, 2016 Ga. App. LEXIS 302 (2016). In a case in which an undercover officer posing as a 14-year-old female, the evidence was sufficient to convict the defendant of computer pornography as the defendant went to a website where individuals could make contact with others in order to engage in sex acts; and, after learning that the female the defendant had supposedly contacted was 14 years old, the defendant continued to chat with the female minor and attempted to get the female minor to meet the defendant to engage in sex acts. Yeamans v. State, 366 Ga. App. 780, 884 S.E.2d 380, 2023 Ga. App. LEXIS 80 (2023). Defendant’s conviction for computer pornography was supported by evidence that the defendant convinced the girl to come to Atlanta to be the defendant’s live in maid with benefits, the defendant’s pet, and the defendant’s slave, who would do domestic chores, give the defendant massages, and do sexual stuff, and in return the defendant would save the girl from all the “crazy people” out there. Boone v. State, 371 Ga. App. 207, 899 S.E.2d 811, 2024 Ga. App. LEXIS 136 (2024). Evidence insufficient when explicit verbal descriptions absent. - There was insufficient evidence to support the defendant’s conviction for obscene internet contact with a child because the messages the defendant exchanged with the person the defendant believed to be a 14-year-old girl did not include any explicit verbal descriptions or narrative accounts of any of the four categories listed in O.C.G.A. § 16-12-100.2(e)(1). Boone v. State, 371 Ga. App. 207, 899 S.E.2d 811, 2024 Ga. App. LEXIS 136 (2024). Prior conviction of offense admissible in trial for other sexual crimes. - Because the defendant’s prior convictions under O.C.G.A. § 16-12-100.2(d)(1) and (e)(1) and defendant’s indictment for aggravated sexual battery, aggravated child molestation, and child molestation alleged crimes that were sexual in nature with

minors and involved a lustful disposition, the independent offenses were admissible under Ga. Unif. Super. Ct. R. 31.3(B). Butler v. State, 311 Ga. App. 873, 717 S.E.2d 649, 2011 Ga. App. LEXIS 869 (2011). Indictment sufficient with regard to Internet sting operation allegations. - With regard to an indictment charging the defendant with computer pornography, attempted aggravated child molestation, and attempted child molestation arising from an Internet sting operation, the appellate court erred by finding that a second indictment was insufficient to withstand a special demurrer because the indictment identified the victim by the only name which the defendant knew the intended victim by and informed the defendant that the intended victim was not an actual child. State v. Grube, 293 Ga. 257, 744 S.E.2d 1, 2013 Ga. LEXIS 487 (2013). Sufficient indictment charging obscene Internet contact. - Trial court erred by granting the defendant’s special demurrer and quashing the indictment charging obscene Internet contact with a child because the indictment identified the victim by the name known to the defendant and informed the defendant that it was someone defendant thought was a 14-year-old girl, which was sufficient, and that the victim may also have been a fictitious persona created by an undercover officer was a fact to be proved at trial and its absence was not a material defect. State v. Cohron, 324 Ga. App. 137, 749 S.E.2d 416, 2013 Ga. App. LEXIS 808 (2013). Expert testimony on psychological characteristics properly excluded. - Trial court did not abuse the court’s discretion in ruling that whether the defendant would have committed the crime charged absent the inducement of law enforcement officers was a question for the jury without the assistance of expert opinion evidence because expert testimony that a defendant does not have the psychological characteristics of a person who is predisposed to having sexual contact with under-aged children invades the province of the jury as to the

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ultimate issue. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436, 2014 Ga. App. LEXIS 275 (2014), cert. denied, No. S14C1137, 2014 Ga. LEXIS 775 (Ga. Sept. 22, 2014). Erroneous jury instruction. - Trial court erred in convicting the defendant of computer pornography because that count was predicated on the child molestation count, but the trial court’s instruction on child molestation was incorrect, and the incorrect jury instruction on the child molestation count likely resulted in the jury improperly convicting the defendant on the computer pornography count.

Yeamans v. State, 366 Ga. App. 780, 884 S.E.2d 380, 2023 Ga. App. LEXIS 80 (2023). Sentence for criminal attempt at child molestation and computer child exploitation. - Because the offenses of criminal attempt to commit child molestation and computer child exploitation each required proof of a fact the other did not, the trial court did not err in sentencing the defendant on both convictions. Brown v. State, 321 Ga. App. 798, 743 S.E.2d 474, 2013 Ga. App. LEXIS 412 (2013).

RESEARCH REFERENCES ALR. Validity of state statutes and administrative regulations regulating internet communications under commerce clause and First Amendment of federal constitution, 98 A.L.R.5th 167. Validity, construction, and application

of state statutes prohibiting child luring as applied to cases involving luring of child by means of verbal or other nonelectronic communications, 35 A.L.R.6th 361. State Law Liability and Relief for “Revenge Porn,” 54 A.L.R.7th 2.