In Wetzel v. State, the Georgia Supreme Court reversed a computer pornography conviction because the indictment neither alleged nor identified an "unlawful sexual offense" as required by statute. The Court, however, affirmed the defendant's conviction for electronically furnishing obscene material to a minor.
The defendant in this case was a high school employee who became Facebook friends with a 15 year-old student at the school. The two exchanged text messages as well as messages on Facebook. The defendant sent nude photographs of himself to the girl who, in return, sent nude pictures of herself to the defendant.
After the school was informed of the messages, the defendant was fired and arrested. He was indicted for computer pornography, child molestation, and electronically furnishing obscene material to a minor. At trial, he was acquitted of the molestation offense but was convicted on the other two charges.
With regards to the computer pornography charge, the relevant statute provides, in part, that it is unlawful to use a computer to seduce, solicit, lure, or entice any child to engage in one of four enumerated sexual offenses, or “any conduct that by its nature is an unlawful sexual offense against a child.”
On appeal, the State contended that it was not required to allege or identify a specific sexual offense in the indictment. Instead, the State interpreted the statute to mean that a jury could decide, as “the voice of the community” that the defendant’s conduct was offensive and unlawful. Instructions to the jury prior to deliberations did nothing to correct or clarify this interpretation.
The Court was unconvinced by the State’s argument and held that the indictment must allege a particular underlying sexual offense. As a result, the Court concluded that the indictment was defective with respect to this count and reversed the computer pornography conviction.
The Court next looked at the defendant’s conviction for electronically furnishing obscene material to a minor. The statute’s definition of electronically furnishes is “to make available by allowing access to information stored in a computer, including making material available by operating a computer bulletin board.”
The defendant’s rather creative argument was that the word “including”, as used in this context, operated as a limitation, meaning that a computer bulletin board is the only way to electronically furnish material under the statute. The defendant argued that since he emailed and texted the pictures, his actions did not violate the statute.
Looking at the construction of the statute, the Court found that the word “including” was used to expand rather than limit the scope of the statute. Of particular importance to the Court was the fact that only one option followed “including”. The Court reasoned that if this was truly the only manner in which electronically furnishing could be accomplished, the legislature would not have needed to use the word “including” at all.
As a result, the Court upheld the defendant’s conviction for electronically furnishing obscene material to a minor.
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