November 17, 2014
DOYLE, P. J., MILLER and DILLARD, JJ.
DOYLE, PRESIDING JUDGE.
Jeremy Michael Wetzel was convicted of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007 for using a cell phone to solicit a child under 16 to send and receive nude photographs (Count 1), and electronically furnishing obscene material to a minor (Count 3). Wetzel appeals, arguing that the trial court erred by (1) overruling his demurrer to Count 1; (2) denying his motion for directed verdict as to Count 1; (3) incorrectly charging the jury as to Count 1; (4) denying his motion for a directed verdict as to Count 3; and (5) incorrectly charging the jury as to Count 3.
Viewed in the light most favorable to the verdict,  the evidence adduced at trial showed that in the fall of 2011, S. B. J. was a 15-year-old sophomore at a high school, where Wetzel was employed as a paraprofessional in the special needs classroom and as a member of the baseball coaching staff. The victim had previously met Wetzel when she was in eighth grade and he was assisting the boys' baseball team for the high school, and during the fall of 2011, the victim starting working with a student organization with which Wetzel assisted. The two made contact outside school via the Facebook social network, where S. B. J. obtained Wetzel's phone number leading to communication between the two via text messages on her cell phone in addition to messages through an application on her sister's iPod Touch to and from his cell phone beginning in mid-November 2011.
Although the victim characterized their interactions as "normal, casual conversations" at first, at some point in November 2011, Wetzel sent a text message to S. B. J. asking about sizes of penises she had seen, and his messages become more sexual in nature. On a later night, Wetzel sent a picture of himself to S. B. J. asking what he would get in return. S. B. J. sent pictures of herself unclothed from the waist up to Wetzel that same evening. On or about the evening of November 16, 2011, Wetzel attempted to send photographs to the victim via his cell phone, however, after encountering difficulty, he sent two emails to her from his own email account — one email contained a photograph of an erect penis, and the other contained a photograph of a nude male with an erect penis standing in front of a bathroom mirror. Although the male's face was cropped from view, the bathroom in which the male was standing had decor matching Wetzel's bathroom.
On approximately December 7, 2011, high school administrators became aware of the nature of the contact and photographs sent between Wetzel and the victim, and an internal investigation ensued, after which school administration contacted the sheriff's department and the Department of Family and Children Services.
1. Wetzel argues that the trial court erred by overruling his general demurrer as to Count 1, violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007.
(a) Wetzel first contends that his demurrer should have been granted because the indictment failed to properly charge the essential elements of OCGA § 16-12- 100.2 (d) (1), which Wetzel claims include an allegation that the solicitation was for violation of one of four underlying prohibited acts defined in OCGA §§ 16-6-2, 16-6-4, 16-6-5, or 16-6-8. We disagree.
Pursuant to former OCGA § 16-12-100.2 (d) (1),
[i]t shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating 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.
Based on the language of the statute, Wetzel contends that there are four underlying crimes that make up the bases of the overarching crime of computer solicitation, one of which must be alleged by the State. In this case, the State indicted Wetzel
with the offense of COMPUTER PORNOGRAPHY for that . . . [Wetzel] on and between [August 1, 2011, ] and [December 7, 2011, ] . . . did intentionally utilize an electronic device, to wit: a cellular 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); contrary to the laws of said State.
Wetzel contends that this indictment failed to charge all the necessary elements of computer solicitation because it failed to allege one of the four necessary underlying crimes and instead charged that the act of solicitation was "conduct by its very nature an unlawful sexual offense against a child." Wetzel contends this is a fatal error in the indictment.
In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute's text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. . . . because [OCGA § 16-12-100.1] is a criminal statute, it must be strictly construed against the State.
First, we disagree with Wetzel's reading of the statute that a violation of one of the four other statutes named in OCGA § 16-12-100.2 (d) (1) is required in order to effectively charge a crime under the statute. We agree with the State that the phrase "or to engage in any conduct that by its nature is an unlawful sexual offense against a child" is not a modifier of the phrase "relating to the offense of public indecency" — OCGA § 16-6-8. In addition to the fact that the plain meaning of the language "or engage in any conduct" establishes that the legislature meant to include the final phase as separate avenue to establish a predicate offense, Wetzel's preferred reading would render the statute nonsensical because public indecency is not a crime reserved for sexual violations against children and instead can be committed against any individual.
The fact that the legislature failed to include punctuation before the final phrase, rather than the comma that was added during the statutory revision effective on July 1, 2013 — or even better, a semicolon — does not convince us otherwise because in observing the previous punctuation usage, the legislature used punctuation to offset the code sections, which was not necessary for this phrase. Although it may have been clearer to put the phrase "to engage in any conduct that by its nature is an unlawful sexual offense against a child" prior to the phrase "to commit any illegal act by, with, or against a child as described in [the four enumerated code sections], " the legislature's decision not to do so does not render the final phrase into a dependent modifier of the predicate offense of public indecency.
(b) Wetzel also asserts that his demurrer should have been granted because the trial court's reading of the statute — that the fifth method by which a defendant may be convicted under the statute is by utilizing an electronic service to solicit a minor "to engage in any conduct that by its nature is an unlawful sexual offense against a child" — renders the statute void for vagueness.
Nevertheless, in order to preserve a constitutional challenge to a statute for review, Wetzel should have sought a distinct ruling on the issue by the trial court.He failed to do so. Accordingly, this issue was not preserved, and this Court cannot review this argument.
2. Wetzel also argues that the trial court erred by denying his motion for a directed verdict as to Count 1.
(a) Wetzel first argues that the State failed to establish that he solicited the victim to violate any of the underlying prohibited acts described in the statute.
Although Wetzel strenuously argues that there is no evidence that he and S. B. J. had text message conversations about penis sizes or about exchanging nude photographs, S. B. J. testified to these facts, which is sufficient for a jury to find Wetzel guilty of Count 1. Moreover, her testimony is supported by emails in her email account bearing Wetzel's email address; topless pictures of herself in her iPod device; text messages between the two on her iPod in a messaging application referencing: (1) Wetzel's nude photographs, (2) his deletion of photographs of her done at her insistence, and (3) her wanting to have sexual intercourse with him as a result of having viewed the photograph of the erect penis sent from his email account to hers and taken in a bathroom containing decor matching that of his bathroom.
(b) Wetzel also argues that the State failed to prove that Wetzel knew that the victim was under 16 years old, which Wetzel argues is a requirement under the statute. We disagree.
OCGA § 16-12-100.2 (d) makes it illegal
for any person intentionally or willfully to utilize a computer wireless service . . . to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child,  another person believed by such person to be a child, any person having custody or control of a child, or another person believed by such person to have custody or control of a child to commit any illegal act [delineated in the statute.]
As with OCGA §§ 16-6-3 and 16-6-4, which prohibit statutory rape and child molestation respectively, "[t]he legislature has carefully worded [OCGA § 16-12-100.2] so that the defendant's knowledge of the age of the victim is not an element of the crime."
Wetzel cites Phagan v. State,  for the proposition that OCGA § 16-12-100.2 contains a requirement for the State to prove knowledge of the child's status as such. In that case, the Georgia Supreme Court determined that OCGA § 16-12-100, which is not at issue here, contained such a requirement because the legislature used the word "knowingly" to describe the prohibited conduct. For instance, OCGA § 16-12-100 (b) (1) states that "[i]t is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct." In the present case, the legislature did not include the word "knowingly." Indeed, the Supreme Court compared the use of the word knowingly in OCGA § 16-12-100 to the child molestation statute and the statutory rape statute as an illustration of when the State is required to prove the defendant knew the victim's status verses those statutes in which no such proof is required. Accordingly, the State was not required to present proof that Wetzel knew the victim was a child at the time of the act, and the trial court correctly denied his motion for directed verdict on this basis.
3. Wetzel argues that the trial court erred by failing to charge the jury as to the essential elements of Count 1. Nevertheless, based on our conclusions in the foregoing divisions — that the defendant's knowledge of the victim's age was not a material element of Count 1, and that the State was not required to allege and prove that the defendant violated one of the four enumerated statutes contained in OCGA § 16-12-100.2 (d) (1) — this enumeration is without merit. The trial court instructed the jury that "[a] person commits the offense of computer pornography, when he intentionally utilizes an electronic device to seduce, solicit, or entice a child . . . to engage in any conduct that by its nature is an unlawful sexual offense against a child." Accordingly, the jury charge was correct according to the law and the indictment, and there was no error.
4. Next, Wetzel contends that the trial court erred by denying his motion for a directed verdict as to Count 3, violating OCGA § 16-12-100.1 (b).
Under OCGA § 16-12-100.1 (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 material furnished, the person electronically furnishes to an individual whom the person knows or should have known is a minor: (A) Any picture, photograph, drawing, or similar visual representation or image of a person or portion of a human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors . . . .
(a) Wetzel first argues that the State failed to establish that he "electronically furnished" the images to the victim.
Pursuant to OCGA § 16-12-100.1 (a) (3), "'[e]lectronically furnishes' means: (A) [t]o make available by electronic storage device, including floppy disks and other magnetic storage devices, or by CD-ROM; or (B) [t]o make available by allowing access to information stored in a computer, including making material available by operating a computer bulletin board system."
Wetzel contends that the phrase "including making material available by operating a computer bulletin board system [("BBS")]" is a limiting phrase that requires the State to prove he operated a BBS. We disagree. The phrase at issue adds an additional avenue through which the State may establish that a defendant allowed access to information, and it does not add a limiting requirement that the State must prove in every circumstance. Wetzel's reliance on Frix v. State is misplaced. The word "including" in that case is followed by a list of specific examples, one of which is the very broad category of "other magnetic storage devices, " which led this Court to conclude that the legislature did not intend to include cell phones in the definition of "electronic storage device" because cell phone did not appear in that list. Here, the plain language of the subsection shows that the legislature intended to add the limited category of BBSs within the definition of "information stored in a computer" rather than limiting the definition thereto in all circumstances.
(b)Wetzel also argues that the State failed to establish that he knew the victim was under 18 years old. In support of this argument, Wetzel points to the fact that students are allowed to attend high school until they are 21 years old if necessary to complete their degree, and at the time of the incident, students up to 19 years old were enrolled in the victim's school. But this question was for the jury, and the jury's verdict that Wetzel knew or should have known the victim was under 18 is supported by the victim's testimony that she worked with Wetzel in an extracurricular student organization when she was a 15-year-old sophomore and he was a paraprofessional and that she had met him while she was in eighth grade two years earlier and not yet attending the high school.
(c) Wetzel contends that OCGA § 16-12-100.1 (a) (3) (B) is void for vagueness. As we concluded in Division (1) (a), however, Wetzel failed to secure a ruling by the trial court on this issue and has therefore failed to preserve the issue for review.
5. Finally, Wetzel argues that the trial court erred by incorrectly charging the jury on Count 3 because the court failed to require the jury to find that he operated a BBS as a material element of the crime. Based on our determination in Division (4) (a) that the phrase to which Wetzel refers is not a material element of the crime in every circumstance, this enumeration is without merit.
Miller and Dillard, JJ, concur.