In Heard v. State, the Georgia Court of Appeals reversed a defendant’s conviction for attempting to entice a child for indecent purposes.
The court held that the State failed to prove the essential element of “asportation,” and thus the evidence was insufficient to support a conviction.
It was alleged that Heard exchanged a number of text messages with a 12 year-old female who lived adjacent to his home. In one of the texts, Heard asked the girl to send him a “naked shot.” The girl refused. At trial, the girl testified that she had never had any problems with Heard but that her mother learned about the texts and confronted him. When questioned by a sheriff’s department investigator, Heard admitted he sent a text message to the girl. A phone company representative confirmed at trial that approximately 40 text messages were exchanged during a 90 minute period.
Under O.C.G.A. § 16-6-5(a), “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” According to Cimildoro v. State, 259 Ga. 788, 387 S.E.2d 335 (1990), the element of asportation is satisfied “whether the ‘taking’ involves physical force, enticement, or persuasion.” According to Bragg v. State, 217 Ga.App. 343, 457 S.E.2d 262 (1995), “a conviction for enticing a child cannot be sustained without evidence of movement.”
As the State only charged Heard with attempted enticement, it was not required to prove completed asportation. Under the criminal attempt statute, O.C.G.A. § 16-4-1, “[a] person commits the offense of 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.” In Dennard v. State, 243 Ga.App. 868, 534 S.E.2d 182 (2000), the court found asportation when the defendant arranged to meet the victim at a mall. This arrangement was a “substantial step” toward the commission of enticement because if the victim had actually met the defendant as planned, the element of asportation would have been satisfied under O.C.G.A. § 16-6-5(a).
In Heard’s case, unlike in Dennard, the element of asportation could not have been satisfied as the girl was never asked to go to another location. By failing to present any evidence that Heard intended to solicit or encourage the girl to go anywhere, the State failed to prove that Heard possessed the requisite intent to commit the crime of enticing a child for indecent purposes.
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