CopyCited 37 times | Published | Supreme Court of Georgia | Jul 5, 2016 | 788 S.E.2d 468
...S16A0323. SCOTT v. THE STATE.
HUNSTEIN, Justice.
This interlocutory appeal presents a facial constitutional challenge to
subsection (e) of the Computer or Electronic Pornography and Child
Exploitation Prevention Act, OCGA §
16-12-100.2, which criminalizes the
offense of “obscene Internet contact with a child.” Appellant Jack Scott was
indicted in January 2015 on two counts of that offense, arising from alleged
sexually explicit online communications in which he took part in late 2013 with
a minor under the age of 16. Scott thereafter filed a general demurrer,
contending that OCGA §
16-12-100.2 (e) is unconstitutionally overbroad in
violation of the right to free speech guaranteed under the First Amendment to
the United States Constitution.1 The trial court denied the demurrer but granted
Scott a certificate of immediate review....
...460, 474 (130 SCt 1577,
176 LE2d 435) (2010). We now undertake that step, reviewing the trial court’s
order de novo. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt,
286 Ga. 731
4
(2) (691 SE2d 218) (2010).
2. OCGA §
16-12-100.2 (e) (1) provides that an individual
commits the offense of obscene Internet contact with a child if he
or she has contact with someone he or she knows to be a child or
with someone he or she believes to be a child vi...
...sadomasochistic abuse that is intended to arouse or satisfy the
sexual desire of either the child or the person, provided that no
conviction shall be had for a violation of this subsection on the
unsupported testimony of a child.
OCGA §
16-12-100.2 (e) (1)....
...an act of apparent sexual stimulation or gratification.” OCGA § 16-12-
100.1 (a) (7).
• “Sexual excitement” is defined as “the condition of human male or female
genitals or the breasts of the female when in a state of sexual stimulation.”
OCGA §
16-12-100.1 (a) (8).
• “Sadomasochistic abuse” is defined as “flagellation or torture by or upon
a person who is nude or clad in undergarments or in revealing or bizarre
costume or the condition of being fettered, bound, or otherwise physically
restrained on the part of one so clothed.” OCGA §
16-12-100.1 (a) (6).
Following this list of offending content categories is the phrase, “that is
intended to arouse or satisfy the sexual desire of either the child or the person.”
The pivotal question is what term or phrase within subsection (e) this qualifying
phrase is intended to modify....
...State,
293 Ga. 817, 820 (1) (750 SE2d 143) (2013) (“even statutes
that impose content-based restrictions on free speech will not be deemed facially
invalid if they are readily subject to a limiting construction”).
In summary, we read OCGA §
16-12-100.2 (e) (1) to prohibit only that
online contact involving verbal descriptions or narrative accounts of any of the
11
four defined categories of offending content and made with the specific intent
to arouse or satisfy the sexual desires of the accused or the child victim....
...accused that his contact will arouse or satisfy the sexual desire of the child or the
accused. Having thus construed the statute, we now turn to the question of
whether the statute, so construed, can on its face survive First Amendment
overbreadth scrutiny.
3. OCGA §
16-12-100.2 (e) is one among several substantive provisions
of a larger statutory enactment whose very title makes clear that its purpose is
preventing the exploitation of children via electronic means....
...444, 447 (629 SE2d 252) (2006) (absence of specific intent requirement
cited as factor in invalidating statute in question).
17
Assessing the statute here against this backdrop, we conclude that, under
the narrow construction we have adopted above, OCGA §
16-12-100.2 (e) (1)
does not prohibit a real and substantial amount of constitutionally protected
expression....
...wholesale invalidation. See id. at 303 (“[t]he ‘mere fact that one can conceive
of some impermissible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge.’”). We therefore agree with the trial
court that OCGA §
16-12-100.2 (e) (1) is not unconstitutionally overbroad
under the First Amendment....
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)....
...in the early morning hours of
December 1 were recovered by taking pictures of the iPod screen showing the
texts. At trial, S.B.J. testified that she and Wetzel never had any inappropriate
physical contact.
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)....
...Wetzel filed a motion for
reconsideration, which was granted on the ground that he had in fact raised and obtained rulings on
5
2. We first consider Wetzel’s challenges to his conviction for violating
OCGA §
16-12-100.2 (d) (1)....
...phone, to seduce, solicit, and entice [S.B.J.], a child under 16 years
of age, to engage in the sending and receiving of nude photographs,
conduct that is, by its nature, an unlawful sexual offense against a
child; in violation of OCGA §
16-12-100.2 (d)[.]
This charge tracks the language of the 2011 version of the statute, which made
it unlawful for any person
to utilize a computer on-line service or Internet service, including
but not limited to a local bulletin bo...
...to the offense of
enticing a child for indecent purposes; or Code Section
16-6-8,
relating to the offense of public indecency or to engage in any
conduct that by its nature is an unlawful sexual offense against a
child.
OCGA §
16-12-100.2 (d) (1)....
...The Court of Appeals therefore vacated its opinion and transferred the case
to this Court as coming within our exclusive appellate jurisdiction over constitutional questions. See
Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).
6
of 16 years.” OCGA §
16-12-100.2 (b) (1).3
(a) Most of Wetzel’s challenges to his conviction under § 16-12-
100.2 (d) (1) focus on his disagreement with the State over the meaning of the
final clause in the statute – “or to engage in any co...
...law crimes, since 1833). When it comes to deciding what conduct qualifies as
a crime in Georgia, the community must speak through our legislature in advance
of the conduct, not through a jury after the conduct has occurred.
Indeed, the construction of §
16-12-100.2 (d) (1)’s final clause that the
State advanced at trial would render the statute unconstitutional as applied here:
6
During argument on Wetzel’s motion for directed verdict, for example, the trial court asked...
...ainted himself with basic principles of
our language, and the State apparently reacquainted itself with basic principles
of our law. Both parties filed supplemental briefs repudiating their prior flawed
interpretations of the final clause in OCGA §
16-12-100.2 (d) (1). They now
agree, and we now hold, that in saying that a person violates §
16-12-100.2 (d)
(1) by using an electronic device to seduce, etc....
...his conclusion, however, resulted in
the jury convicting Wetzel on Count 1 of the indictment after being misled about
what it needed to decide to find him guilty of that charge.
(b) Although Wetzel incorrectly interpreted OCGA §
16-12-100.2
(d) (1) until he submitted his supplemental brief to this Court, he did correctly
point out to the trial court that the State was required to identify at least some
underlying crime, and he argued that the jury instruction on Count 1 was
incomplete. We agree.
The trial court accepted, or at least acquiesced in, the State’s obdurate
refusal to identify any offense outside §
16-12-100.2 (d) (1) as the relevant
“unlawful sexual offense against a child.” Accordingly, with respect to Count
1, the court gave only the following jury instruction:
A person commits the offense of computer pornography when he...
...would come from the court and then fully and correctly instructed the jury on the
legal issue, without objection by the defendant).
We conclude that the minimal instruction given by the trial court on the
“unlawful sexual offense” element of OCGA §
16-12-100.2 (d) (1) as charged
13
in Count 1 of the indictment, in conjunction with the blatantly incorrect
explanation of the law offered by the State, left the jury without proper guidance
on the relevant law....
...Accordingly, we reverse
Wetzel’s conviction on Count 1.
3. Seeking to salvage Count 1, at least for a possible retrial, the State
argues that, even if the jury in Wetzel’s original trial was improperly instructed
on that count, a violation of OCGA §
16-12-100.2 (d) (1) was adequately alleged
in the indictment, when read as a whole, and that violation was then adequately
proved at trial....
...e child molestation offense alleged in
Count 2 or the electronically furnishing obscene material to minors offense
alleged in Count 3. We disagree.
(a) Child molestation can certainly be a predicate offense for a
violation of OCGA §
16-12-100.2 (d) (1)....
...In the indictment, however, the State
did not allege that Wetzel used an electronic device to seduce, solicit, or entice
S.B.J. in order “to commit an[] illegal act described in . . . Code Section
16-6-4,
relating to the offense of child molestation.” Instead, the State alleged a violation
of §
16-12-100.2 (d) (1) using only the language of the final clause of that
statute, accusing Wetzel of seducing, soliciting, and enticing S.B.J., a child under
16 years of age, in order “to engage in the sending and receiving of nude
photographs...
...any part of the statute meaningless.” (citation and punctuation omitted)).
Moreover, the enumeration of specific offenses and the final catch-all
clause are separated by an “or” and introduced with similar but not identical
language. Thus, a person violates OCGA §
16-12-100.2 (d) (1) by using an
electronic device to seduce, solicit, lure, or entice a child in order either “to
commit any illegal act described in [the following four separate code sections]
or to engage in any conduct that by its nature i...
...our types enumerated
that may involve conduct that by its nature is an unlawful sexual offense against
a minor, see, e.g., OCGA §
16-6-3 (statutory rape), and the General Assembly
16
also may have drafted §
16-12-100.2 (d) (1) so that it would not need to be
amended any time a new sexual offense is enacted.
The State did not charge Wetzel with violating OCGA §
16-12-100.2 (d)
(1) in relation to child molestation, and he cannot be retried based on the same
conduct for a crime for which he was not originally indicted....
...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 alleged that Wetzel,
knowing the character o...
...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 seduce, solicit, lure, or entice, or attempt to seduce, solicit,
lure, or entice a child” in order “to engage in any conduct that by its nature is an
unlawful se...
...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 a sexual offense herself,
and so we should consider whether Wetzel tried to lead S.B.J....
...Two of the enumerated offenses – child molestation and enticing a child for indecent
purposes – are crimes that require a child victim, and the “unlawful sexual offense” in the final
clause must be “against a child.” Thus, the most natural reading is that §
16-12-100.2 (d) (1) is
concerned about crimes the seducer plans to commit against the child....
...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...
...19
“unlawful sexual offense” alleged in Count 1.
(c) Despite our express invitation to do so, the State has not
identified any other “unlawful sexual offense” within the meaning of OCGA §
16-12-100.2 (d) (1) that it contends was properly alleged by the indictment
against Wetzel and was then proved by the evidence presented at trial....
...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)....
CopyCited 14 times | Published | Supreme Court of Georgia | Sep 28, 2020
310 Ga. 7
FINAL COPY
S19G1516. EDVALSON v. THE STATE.
BOGGS, Justice.
A jury found Thomas Edvalson guilty of 22 counts of sexual
exploitation of children, OCGA §
16-12-100 (2003),1 for possession of
11 digital images depicting a minor engaged in sexually explicit
conduct.2 With respect to each digital image, he was found guilty of
both possession under OCGA §
16-12-100 (b) (8)3 and possession
with intent to distribute under OCGA §
16-12-100 (b) (5).4 At
sentencing, the trial court merged the “simple” possession counts
1 Because the crimes occurred in 2012, the 2003 version of this statute
applies, but later amendments did not change the language at issue her...
...served in
prison. Edvalson appealed, asserting, among other enumerations of
error, that the trial court erred in failing to merge his convictions
into a single count. The Court of Appeals affirmed in an unpublished
opinion, concluding that OCGA §
16-12-100 (b) (5) permits a
defendant to be separately convicted and sentenced for each of the
images in his possession. See Edvalson v. State (Case No.
A19A0442), 351 Ga. App. XXIV (June 28, 2019) (unpublished).
We granted certiorari to consider whether the Court of Appeals
erred in failing to merge the remaining 11 convictions under OCGA
§
16-12-100 (b) (5) into a single conviction. In accordance with our
reasoning in Coates v. State,
304 Ga. 329, 331 (818 SE2d 622) (2018),
we conclude that the plain language of OCGA §
16-12-100 (b) (5),
interpreted in the context of the entire statute, is unambiguous and
permits only one prosecution and conviction for a single act of
possession of child pornography, regardless of the number of images
depicted therein.5 We t...
...statute unambiguously permits only one conviction for simultaneous
possession of any number of firearms. Id. at 331-332. Coates’
multiple convictions were vacated and the case remanded for
resentencing. Id. at 332.
Here, the analysis of OCGA §
16-12-100 (b) (5), in its statutory
context, yields a similar result....
...at 10-11.6
This reading was incorrect, as it did not take into account the
multiple meanings of the word “any” in the statute construed as a
whole. A proper analysis produces a result similar to that reached
in Coates. Here, the term “any visual medium” in OCGA §
16-12-100
(b) (5) must be read in light of the definition provided by the General
Assembly in OCGA §
16-12-100 (a) (5): “‘Visual medium’ means any
film, photograph, negative, slide, magazine, or other visual
6 In its unpublished opinion, the Court of Appeals rejected the
application of this Court’s decision in Coates and instead relied heavily on its
own decision in State v. Williams,
347 Ga. App. 183, 186 (818 SE2d 256) (2018).
That reliance was not well-founded. While the Court of Appeals in Williams
addressed a unit-of-prosecution issue, it was with reference to another
paragraph of the statute, OCGA §
16-12-100 (b) (8), containing different
language from that found in paragraph (b) (5)....
...t be
interpreted as a quantitative term, implying no specific quantity
and having no limit. As in Coates, the offense is the possession of
any prohibited “visual medium” at all, whether one or one hundred.7
Accordingly, we conclude that OCGA §
16-12-100 (b) (5) is
unambiguous and permits only one prosecution and conviction for
the simultaneous possession of multiple items of “visual media.”8
For these reasons, the Court of Appeals erred....
...Accordingly, we
7 This conclusion is bolstered by the fact that a single film, magazine, or
“other visual medium” such as a book or website could contain hundreds or
even thousands of “photographs” or images, also included within the definition
of “visual medium” in OCGA §
16-12-100 (a) (5)....
...be applied retroactively to other cases. We need not address that question to
decide this case.
reverse the Court of Appeals’ decision and remand this case for the
Court of Appeals to vacate Edvalson’s convictions and sentences for
the 11 counts under OCGA §
16-12-100 (b) (5) and to return the case
to the trial court for resentencing consistent with our opinion.
Judgment reversed and case remanded with direction....
CopyCited 6 times | Published | Supreme Court of Georgia | Apr 22, 2014 | 757 S.E.2d 819, 2014 Fulton County D. Rep. 1065
...THE STATE v. COSMO.
BENHAM, Justice.
Dennis Cosmo was convicted of, among other things, a violation of
section (d) (1) of the former version of the “Computer or Electronic
Pornography and Child Exploitation Prevention Act,” OCGA §
16-12-100.2,
prior to the statute’s amendment in 2013....
...fictitious
child. Id. It is undisputed, however, that Cosmo never communicated directly
with a person he believed to be a child and that he communicated only with a
person he believed to be Amber, the child’s parent.
The wording of OCGA §
16-12-100.2 (d) (1) in effect at the time Cosmo
was indicted provided:
It shall be unlawful for any person intentionally or willfully
to utilize a computer on-line service or Internet service, including
but not limited t...
...to be a child . . . .” See Ga. L. 2013, p. 663 § 3/HB 156.
3
“attempt to solicit” a person he believed to be a child to commit child
molestation and aggravated child molestation.
OCGA §
16-12-100.2 (d) (1) makes the attempt to do certain prohibited
acts one of the ways in which the statute may be violated....
...that defines criminal attempt as a separate offense: “A person commits the
offense of criminal attempt when, with intent to commit a specific crime, he
performs any act which constitutes a substantial step toward the commission of
that crime.” Thus, attempt within OCGA §
16-12-100.2 (d) (1) involves two
elements: intent to commit a crime (in this case, intent to solicit a child for an
unlawful sexual offense), and the taking of a substantial step toward the
commission of that crime (in this case, a substantial step toward soliciting a
child for that unlawful offense)....
...Communication with a person the defendant
believes to be the parent of a child who is the object of the defendant’s attempt
to solicit satisfies the intent element of the offense.
A similar conclusion has been reached by federal courts in construing a
federal statute that is substantially similar to OCGA §
16-12-100.2 (d) (1).
Pursuant to 18 U.S.C....
...knowing attempt to persuade, induce, or entice the minors); United States v. Berk, 652 F3d 132, 140
6
Cosmo urges that attempting to solicit a minor to engage in illegal
conduct, pursuant to OCGA §
16-12-100.2 (d) (1), is materially distinguishable
from attempting to induce a minor to engage in illegal conduct pursuant to 18
U.S.C....
... agents.” 574 F3d 159, 162, n. 4. Likewise, a solicitation of another may be
made by communication with a third party. Just as solicitation of prostitution
can be made through a third party pimp, solicitation of a child to commit the acts
prohibited by OCGA §
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....
...tive.”
Murrell, supra, 368 F3d at 1287. Certainly, the intent to solicit a child for
illegal sexual activity may be established by communication with such an adult
intermediary. The intent element of attempt to solicit a child pursuant to OCGA
§
16-12-100.2 (d) is established by the evidence in this case.
The second element of criminal attempt with respect to the crime charged
— the taking of a substantial step toward the commission of soliciting a child
— is also established in this case....
...In
fact, the jury, which was instructed on criminal attempt, found Cosmo guilty.
Accordingly, that portion of the Court of Appeals opinion finding Cosmo
may not be convicted of that count of the indictment charging him with violating
OCGA §
16-12-100.2 (d) (1) by attempting to solicit a child, because the
evidence shows he did not interact directly with a person he believed to be a
child, is reversed....
Published | Supreme Court of Georgia | Nov 2, 2022 | 783 S.E.2d 603
...enforcement.
On appeal, Winslow raises three enumerations of error: (1) the trial
court erred by denying his motion to suppress evidence obtained
from a search of his laptop; (2) facial and as-applied challenges to
the sentencing scheme of OCGA §
16-12-100 (f) (1); and (3) the trial
court erred by failing to merge all counts of the indictment together
for sentencing under Edvalson v....
...years on probation) on Count
2 to serve consecutively to Count 1. The trial court merged Count 3 with Count
1 and Count 4 with Count 2.
Winslow filed a timely notice of appeal directed to this Court, raising
constitutional challenges to OCGA §
16-12-100....
...rch
warrant. See Brooks,
285 Ga. at 425. Accordingly, there is no need
to review Winslow’s remaining arguments on this enumeration.
3. Winslow next argues that the statutory sentencing scheme
for possession of child pornography under OCGA §
16-12-100 (f) (1)
is facially unconstitutional. 6 Winslow argues that the mandatory
minimum and the maximum sentence provided for possession of
child pornography under OCGA §
16-12-100 (f) (1) violate the
prohibition against cruel and unusual punishment in both the
Eighth Amendment to the United States Constitution and Article I,
Section 1, Paragraph XVII of the Georgia Constitution (“Paragraph
XVII”)....
...cting cruel and unusual
punishments[,]” which encompasses “sentences that are grossly
disproportionate to the crime committed.” (Citations and
6 Winslow also challenges the constitutionality of OCGA §
16-12-100 (f)
(1) as applied to him based on his total sentence of 35 years, with the first 20
years to be served in confinement and the remaining 15 years to be served on
probation....
...overly severe or excessive in proportion to the offense as to shock the
conscience.” (Citation omitted.) Gordon v. State,
257 Ga. 439, 440 (2)
(360 SE2d 253) (1987).
Winslow complains that the punishment for possession of child
pornography imposed under OCGA §
16-12-100 (f) (1) is grossly
disproportionate because the statute does not make distinctions for
sentencing purposes between possession offenses and those
involving the sale, distribution, or manufacturing of child
pornography....
...violent crimes and because other criminal statutes, such as OCGA §
16-13-30, provide for lesser sentencing parameters for possession
crimes than crimes involving distribution and manufacturing.
However, even though there is no such distinction in OCGA §
16-12-100 (f) (1), the sentencing parameters are not grossly
disproportionate to the crime of possession of child pornography, an
offense we have long recognized a strong state interest in
discouraging....
...And
Winslow has done nothing to demonstrate that the General
Assembly’s choice to protect the State’s significant interest in
combatting the production, distribution, and possession of such
materials with the range of sentences that can be imposed under
OCGA §
16-12-100 (f) (1) or its decision not to distinguish between
possession, production, and distribution offenses in any way “shocks
the conscience.”7 See Aman v....
...meet. And we see
no basis for such an argument. Thus, for purposes of our analysis, we presume
that at most Paragraph XVII’s protections are co-extensive with those afforded
by the Eighth Amendment. Therefore, because Winslow cannot show that
OCGA §
16-12-100 is unconstitutional under the Eighth Amendment, it follows
that he could not make a showing of unconstitutionality under Paragraph
XVII....
...57, 62 (5) (573
SE2d 362) (2002). Therefore, given “the requisite deference to the
legislative branch’s authority to impose punishment based on the
mores of society at the time of the crime,” we hold that the
sentencing parameters in OCGA §
16-12-100 (f) (1) are not grossly
disproportionate.8 Widner v....
...imposing a similar sentencing scheme for the crime of possession of child
pornography, because Winslow failed to establish the threshold comparison
between the gravity of the offense and the severity of the sentence, there is no
need to compare the sentencing parameters of OCGA §
16-12-100 (f) (1) with
sentences imposed for the same crime in other jurisdictions....
...However, the trial court declined to merge Count 1
and Count 2, and sentenced Winslow to 15 years in confinement on
Count 1 and five years in confinement with 15 years of probation on
Count 2 to run consecutively with Count 1. This was error.
In Edvalson, this Court held that OCGA §
16-12-100 (b) (5) 9
only allows for “one prosecution and conviction for the simultaneous
possession of multiple items of ‘visual media’” and clarified that
possession can be simultaneous “regardless of the number of images
9 We note that in July 2022, after Edvalson was decided, the General
Assembly amended OCGA §
16-12-100. Pursuant to that amendment, OCGA §
16-12-100 (b) (5) now provides that “[i]t is unlawful for any person knowingly
to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess
with intent to sell or distribute a visual medium which depicts a minor or a
portion of a minor’s body engaged in any sexually explicit conduct.”
Additionally, the General Assembly enacted OCGA §
16-12-100 (b.1), which
provides that “[f]or any violation of paragraph (5) ....
...r materials, each
visual medium, medium, or material connected to such violation shall
constitute a separate offense.” Because the conduct at issue in this case
occurred prior the effective date of these changes to the statute, the version of
OCGA §
16-12-100 in force at the time Edvalson was decided applies.
depicted therein.”
310 Ga. at 8, 10. See also OCGA §
16-12-100 (a)
(5) (defining “visual medium” as “any film, photograph, negative,
slide, magazine, or other visual medium”)....
