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Court Finds Indictment Sufficient in Internet Sex Sting Case

August 13, 2015

In Skelhorn v. State, the Georgia Court of Appeals held that the term computer on-line service did not need to be included in an indictment charging a person for using an internet chat room to attempt to solicit, lure and entice a child in violation of Georgia's Computer or Electronic Pornography and Child Exploitation Act.

The Court further found that a conviction for violating the Act was not void despite the fact that the jury was not instructed on the term computer on-line service.

In 2010, a Newton County Sheriff’s investigator using the screen name “aimee_13cheer” was approached in an online chat room called Georgia Romance by the defendant who asked for pictures of her, or a webcam connection. In the alternative, the defendant offered to send a link to his own webcam so that the investigator could watch him.

The investigator accepted the latter offer and was able to observe the defendant masturbating in the webcam. In the course of their communications, the investigator told the defendant that she was 13 years old after which the defendant asked a series of sexually explicit questions about her physical appearance and sexual experiences.

Based on these online communications, the defendant was charged with having verbal and visual contact with a person he believed to be a minor “by way of an on-line messaging service” and with attempting to solicit, lure and entice a minor, via the internet, to engage in sexual acts.

The defendant argued that using a computer on-line service was an essential element of the offense and that the government failed to allege and prove that element. (It should be noted that the statute has since been amended and the term has been replaced with computer wireless service.) Though the statute did not define computer on-line service, the Court’s reading of it suggested an intent by the legislature to define the term broadly by illustration rather than expressly in words. As such, the Court held that charging the defendant with using an on-line messaging service encompassed the “on-line service” element of the crime. Using the same reasoning, the Court also rejected the defendant’s argument that the jury instruction should have included the phrase computer on-line service.

The defendant’s next argument was that the State failed to prove he took a substantial step toward committing the crime, as required by the statute. Specifically, the Court found that there was ample evidence to justify a rational trier of fact to find that the defendant took a substantial step toward soliciting, luring and enticing a person he believed to be a child for unlawful sexual conduct.

Though the statute in question does not define solicit, lure or entice, the Court relied on ordinary usage of the terms garnered from various everyday dictionaries. Quoting Merriam Webster’s Online Dictionary, the Court found that the terms meant “to ask for”, “to attract by wiles” and “arouse hope, interest or desire”. It was the Court’s opinion that the Defendant’s sexually explicit questions, comments and conduct in the chat room constituted an attempt to ask for and attract the investigator, thus satisfying the substantial step element of the offense.

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