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Wetzel v. State

Court of Appeals of Georgia, Fourth Division

November 17, 2014

WETZEL
v.
THE STATE.

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[1] 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).[2] 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, [3] 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.[4]

(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 ...

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