Since the reversal was based upon the sufficiency of the evidence, the rules prohibiting double jeopardy will bar the State from retrying the case.
In Phillips v. State, the Georgia Court of Appeals reversed the defendant’s convictions for criminal attempt to commit enticing a child because the State failed to present any evidence to show that child molestation or any indecent acts involving a minor were the intended motivation behind the defendant’s attempts to lure the alleged victims into his vehicle.
The defendant apparently drove past two girls in a black truck on December 14, 2013, and made a “money” gesture with his fingers towards them. The girls alleged that the defendant did not say anything to them and continued to drive past them at “medium” speed.
When the father of one of the girls arrived at the scene, the girls informed him of what happened and he walked up to the defendant’s truck. The defendant quickly sped off, losing his passenger side view mirror in the process. The father retrieved the mirror and began to chase the defendant, during which he called the police.
When the police arrived, the officers spoke with the defendant about the side view mirror and he claimed that he did not know how the father came into possession of the mirror and that his truck was “falling apart.” The officers matched the mirror to the defendant’s vehicle, and officers were subsequently met with tips from other parents and their children about the defendant’s behavior.
The defendant contended that he did not know any of these parents or children and had not been involved in any incidents with them. He then agreed to go to the police department for an interview.
While investigating the truck, officers discovered reports of other incidents involving the defendant, namely, a report from August 23, 2013, detailing how an underage girl had been walking down the street with her friends when the defendant’s black truck started following them. The defendant pointed at her and gestured for her to enter the truck and sit in the passenger seat. Another report from October 4, 2013 detailed how another underage girl had been riding her bike when a truck began to follow her. The driver was later identified as the defendant. He stopped the truck, rolled his window down, and told the girl that he liked her hair, asking her if she wanted to put her bike in the back of his car and go.
The defendant was indicted on four counts of criminal attempt to commit enticing a child for indecent purposes. The indictment alleged that he attempted to entice each of the three alleged victims into his vehicle for an indecent purpose. On appeal, he argued that the evidence was insufficient to support his convictions.
OCGA § 16-4-1 defines 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.” The key words are ‘substantial step,’ which are defined as “an act [done] in pursuance of the intent, and more or less directly tending to the commission of the crime. OCGA § 16-6-5 provides that a person commits the crime of enticing a child for indecent purposes when he solicits, entices, or takes any child under the age of 16 years for the purpose of child molestation or indecent acts.
The appeals court held that the State failed to present any evidence to show that an act of indecency or child molestation was the intended motivation for the defendant’s attempted enticement of the alleged victims. In order to establish that the defendant intended to entice the girls for an indecent purpose, the State must prove that his advances towards them were in order to engage in indecent acts with them.
This is significant as one of the alleged victims said that the defendant did not say anything to her and that he did not stop moving once he reached her, instead continuing to drive at “medium” speed. Therefore, the appeals court concluded that the evidence presented was insufficient to sustain the defendant’s convictions for these offenses. It was the State’s burden to prove the offenses beyond a reasonable doubt and, in this case, the State did not present any evidence that showed that the defendant intended to commit an indecent act or child molestation while attempting to entice the victims.
As a result, the defendant’s convictions were reversed. Since the reversal was based upon the sufficiency of the evidence, the rules prohibiting double jeopardy will bar the State from retrying the case. Therefore, the defendant, who initially received a sentence of 30 years to serve in prison, will stand acquitted of all charges.
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