In Smith v. State, the Georgia Court of Appeals held that the trial court erred in denying the defendant’s special demurrer to the charge of computer pornography because the indictment failed to specify how the defendant violated the statute.
The record reflects that local police officers and the FBI placed an ad on the internet describing a lone female in a motel room. The defendant texted the female, an undercover officer, who informed the defendant that she was under the age of 16. After sending texts of a sexual nature, the defendant traveled to the motel room where officers took him into custody.
The defendant was charged with (1) computer pornography, (2) obscene telephone contact with a child, and (3) criminal attempt to entice a child for indecent purposes. The defendant filed both a general and special demurrer to the indictment. The trial court granted only the general demurrer as to Count 2, denying the demurrers as to the remaining charges.
On interlocutory appeal, the defendant asserted that the trial court erred in denying his general demurrer to Count 3 because it failed to allege a violation of Georgia law, specifically that it charged the defendant with enticing someone “he believed to be” under the age of 16. The Court of Appeals disagreed.
The Court noted that the defendant was not charged with the completed offense but instead was charged merely with criminal attempt. An attempt to commit the offense may be established when the defendant communicates with an adult whom he believes to be a child under 16 years old and takes a substantial step to meet that person to engage in child molestation. The Court held that the indictment satisfied this requirement by alleging that the defendant engaged in sexually explicit communication with a person he believed to be under 16 years of age and drove to a motel to meet her.
The Court, however, agreed with the defendant that the trial court erred in denying his special demurrer to Count 1, the computer pornography charge. The indictment charged the defendant with using a computer messaging service to engage in conduct “that by its nature is an unlawful sexual offense against the child.”
The Georgia Supreme Court has previously held that the indictment is required to specify which “unlawful sexual offense” the defendant intends to commit via use of a computer. By not specifying the underlying criminal offense, the indictment failed to adequately apprise the defendant of the charge so that he could prepare a defense.
As a result, the Court held that the computer pornography charge should be quashed and remanded the case back to the trial court on the remaining charges.