The appeals court reversed the defendant's internet sting conviction as a result of an unlawful jury instruction and erroneous admission of defendant's prior no contest plea.
In Yeamans v. State, the Georgia Court of Appeals granted a new trial to a defendant arrested in a Forsyth County internet sting operation. The Court held that the trial court erroneously denied the defendant’s pretrial general demurrer to the indictment and improperly allowed the State to introduce evidence of the defendant’s no contest plea to a prior child pornography charge.
A Forsyth County police officer posted an ad on a prostitution website posing as a purported minor. The ad stated that she was 19 years old and contained pictures of the officer that were modified to make her look younger. When the defendant contacted her, she stated that her name was “Kat” and that she was really only 14 years old.
They discussed the arrangements for sex and payment and the defendant asked, “Can Daddy call you?” He also asked whether she would be willing to move in with him and “be [his] baby girl.”
They made plans to meet and although the defendant agreed to meet at a particular place and time, he did not show up. When “Kat” contacted him to see where he was, the defendant responded with links to the TV show To Catch a Predator and said he wasn’t coming because he believed she was a police officer.
“Kat” then started complaining that the defendant left her stranded without a ride. He then agreed to get her an Uber and sent her a screenshot of it. She noticed that the screenshot appeared to be in a different time zone and the defendant responded that he lived in Wisconsin and had caught a flight home.
The defendant then continued to text with “Kat.” He said that he trusted her now but that he found it implausible that she was really 14 and not a police officer. He told her that he would send her money and have Facetime calls with her. However, he never actually did send her any money.
Nevertheless, the police were able to figure out the defendant’s whereabouts in Wisconsin and subsequently arrested him.
The defense filed both general and special demurrers to the indictment alleging that it failed to properly set out the charges of computer pornography and attempted child molestation. Following a hearing, the trial court denied both demurrers.
On appeal, the Court of Appeals held that the trial court should have granted the defendant’s general demurrer to the attempted child molestation charge. The indictment alleged that the offense was committed by the defendant engaging “in immoral and indecent conversation involving” sex with “a person the accused believed to be a child under the age of 16.”
The Court first pointed out that the child molestation statute requires that the “immoral and indecent” act be “to or in the presence of” the child. It noted that in Vines v. State, the Georgia Supreme Court previously held that sexually explicit conversations with a child do not amount to the offense of child molestation. Since the only alleged crime contained in this count was the conversations between the defendant and “Kat,” the Court found that the conviction for this count should be vacated.
The Court also rejected the State’s argument that the legislature’s addition of subsection (a)(2) to the child molestation statute superseded the Vines decision and that a defendant no longer needs to be in the presence of a child to commit a child molestation offense. The Court stated that subsection (a)(2) is expressly limited to the sending of pornography to the child which the defendant in this case never did.
The defendant argued that the evidence was insufficient to convict him of the computer pornography offenses since he never went through with the offense and expressed doubts that “Kat” was really a 14-year-old.
The Court stated that the defendant continued to communicate “with ‘Kat’ despite knowing her purported age of 14.” He also asked about her availability to meet, engage in sex acts for money, and later asked if they could have video chats together after being told that she was 14. Even though the defendant stated later that he might not have believed she was really 14, the evidence of him being told she was 14 was apparently sufficient for the Court to conclude that he “knew” she was 14.
The defendant also argued on appeal that the trial court failed to properly instruct the jury as to the computer pornography counts. The indictment alleged that this offense was committed when the defendant communicated with a purported minor online for the purpose of committing the crime of either child prostitution or child molestation.
The Court of Appeals agreed that the jury instruction was defective, holding that because the indictment improperly alleged the attempted child molestation charge, the jury instruction defining child molestation was also erroneous. Since it was one of the two underlying crimes for the computer pornography counts, the Court concluded that it is possible the jury convicted the defendant based on the erroneous instruction.
Lastly, the defendant argued that the trial court improperly permitted the State to introduce evidence of his prior no contest plea to a child pornography charge in Wisconsin. O.C.G.A. § 17-7-95 prohibits the admission of a nolo contendere plea as evidence of a prior similar offense. Additionally, there is a similar Wisconsin statute that provides that a person’s no contest plea cannot be used against him in any subsequent “civil or criminal proceeding against the person who made the plea.”
Therefore, the Court of Appeals concluded that the trial court erred in allowing the State to introduce evidence of the defendant’s plea for purposes of proving the prior offense.
As a result, the Court reversed the defendant’s convictions but held that since the evidence was sufficient to convict, he can be retried.
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