CopyCited 31 times | Published | Supreme Court of Georgia | Feb 24, 2014 | 755 S.E.2d 171, 2014 Fulton County D. Rep. 383
FINAL COPY
294 Ga. 589
S13A1904. WARREN v. THE STATE.
THOMPSON, Chief Justice.
Appellant Charles Warren was indicted for violating OCGA §
16-12-81,
with the indictment alleging that he sent an unsolicited text message containing
an image of his genitalia to an adult female without notifying her that the
message contained nudity. Appellant filed a general demurrer, arguing that
OCGA §
16-12-81 does not criminalize his conduct, and three motions to quash
the indictment, raising various constitutional challenges to the statute. The trial
court denied appellant’s demurrer and his motions to quash, and he now appeals.
Appellant is correct that OCGA §
16-12-81 does not criminalize his conduct.
The trial court therefore erred in denying his general demurrer....
...Appellant contends that the trial court erred in denying his general
demurrer to the indictment, because the act alleged in the indictment --- the
sending of a nude image of his genitals from his cell phone to the victim’s cell
phone --- is not prohibited by OCGA §
16-12-81. We agree.
“When analyzing a general demurrer, the question is whether a defendant
can admit to the conduct and still be innocent of the crime.” Dorsey v. State,
279 Ga. 534, 538 (615 SE2d 512) (2005). OCGA §
16-12-81 (a), which was
enacted in 1970, see Ga....
...dity
or sexual conduct. If the viewing of such material
could be offensive to the addressee, this container
should not be opened but returned to the sender.”1
1
Subsection (b) of OCGA §
16-12-81 says:
(b) As used within this Code section, the term:
(1) “Nudity” means the showing of the human male
or female genitals, pubic area, or buttocks with less
than a full opaque...
...intercourse, or physical
contact with a person’s clothed or unclothed genitals,
pubic area, buttocks, or, if the person is female, breast.
2
To start, we note that OCGA §
16-12-81 is not inapplicable to electronic
text messaging merely because that form of communication did not exist when
OCGA §
16-12-81 was enacted in 1970....
...at the time of its adoption,” but that if new products or circumstances that did
not exist at the time the constitutional provision was enacted fall within the
meaning of the provision, the constitutional provision applies to them). Because
the words of OCGA §
16-12-81 at issue here are not “words of art or words
connected with a particular trade or subject matter,” we look to the ordinary
meaning of those words at the time the General Assembly enacted the statute in
deciding whether the sending of an intangible text message comes within the
scope of the statute....
...contemporary, common meaning’” at the time Congress enacted a statute and
reviewing dictionaries from the era of the statute’s enactment to assist in
determining its meaning (citation omitted)). Moreover, under the canon of
noscitur a sociis, the words in OCGA §
16-12-81 (a) should be understood in
relation to each other, since “‘[w]ords, like people, are judged by the company
they keep.’” Hill v....
...the specific and general prohibitions of the statute. Thus, the statute
contemplates that the “material” that is the subject of both prohibitions has an
envelope or container that can have the notice imprinted on it. At the time
OCGA §
16-12-81 was enacted, an “envelope” was defined as “something that
envelopes: wrapper, container, receptacle” and as “a flat flexible usu[ally] paper
2
The canon of ejusdem generis is unhelpful in this case....
...goods, or commodities.” Id. at 491. In addition, “imprint” meant “to mark by
pressure (as a figure on an object or as the object itself with the figure).” Id. at
1137. Given their ordinary meaning, these words indicate that the general
prohibition of OCGA §
16-12-81, like the specific prohibition, addresses
tangible material that has a tangible envelope or container on which the required
notice can be imprinted.3 This conclusion is reinforced by the fact that the
imprinted notice on the envelope o...
...We thus conclude that the general
prohibition of the statute does not apply to the text message that appellant sent
3
We note that the parties stipulated that “[a]n electronic text message does
not have an envelope or an ‘outside container’ within the meaning of OCGA §
16-12-81.”
6
in this case....
...certain circumstances, there can be probable cause to believe that the object of a search can be found
inside a cell phone, as with a traditional container. See id. at 787. Here, however, we are not dealing
with the rationale of searches incident to arrest but with the language of OCGA §
16-12-81, and the
analogy of Hawkins is inapplicable.
7
Decided February 24, 2014.
OCGA §
16-12-81....
