Lopez v. State
326 Ga. App. 770
Ga. Ct. App.2014Background
- Defendant Emanuel Lopez responded to a Craigslist ad posted by undercover law enforcement posing as a 14‑year‑old "Sara," exchanged sexually explicit communications, and arranged an in‑person meeting.
- Lopez traveled roughly two hours to the meeting location in Catoosa County; he arrived with condoms and lubricant and was arrested by officers at the rendezvous.
- Post‑arrest, Lopez admitted he believed he was communicating with a 14‑year‑old and that he intended to engage in sexual activity with her.
- Indictment charged: (1) using a computer/Internet service to seduce or entice a person believed to be a child to commit child molestation (OCGA § 16‑12‑100.2(d)), and (2) criminal attempt to commit aggravated child molestation (OCGA §§ 16‑4‑1; 16‑6‑4(c)).
- At trial Lopez claimed he thought the correspondent was an adult role‑player and testified he would have left if the person had actually been underage; he sought to admit an expert to show lack of predisposition to offend.
- The jury convicted on both counts; Lopez appealed raising multiple constitutional and evidentiary challenges.
Issues
| Issue | Lopez's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency when victim is an undercover operative | Indictment/conviction invalid because no actual child victim; "Sara" was fabricated by police | Statute criminalizes soliciting a person believed to be a child; undercover operatives are explicitly covered | Affirmed: conviction valid where defendant believed correspondent was a child and statute bars this defense |
| Criminalizing thought / First Amendment challenge | Statute punishes private sexual communications because it targets defendants who believe they’re talking to a child — i.e., thoughts | Statute requires an intent/purpose to seduce/entice for child molestation, not mere private thoughts | Rejected: statute targets conduct with a prohibited underlying purpose, not mere thoughts |
| Venue in Catoosa County after law‑enforcement arranged the meeting | Officers lured Lopez into county to create venue; prosecution improper | Defendant transmitted e‑mails into Catoosa County and traveled there as part of his plan; venue proper | Affirmed: venue proper because communications and substantial acts occurred in Catoosa County |
| Exclusion of expert opinion on lack of predisposition/entrapment | Proffered expert would show Lopez lacked psychological predisposition and that police enticed him | Predisposition and entrapment are jury questions; expert opinion on ultimate issue invading jury province | Affirmed: trial court did not abuse discretion excluding expert on ultimate issue |
| Sufficiency to rebut entrapment | Argues State failed to disprove entrapment beyond a reasonable doubt | Evidence showed immediate sexual escalation by Lopez, arranging in‑person meeting, travel, and physical preparations | Affirmed: evidence authorized jury to reject entrapment |
| Right to be present at bench conferences | Lopez excluded from some bench conferences; claimed denial of presence at critical stages | Trial judge advised him of right to attend; defendant acquiesced and did not show prejudice from absence | Affirmed: no reversible error absent demonstrated prejudice |
Key Cases Cited
- Bolton v. State, 310 Ga. App. 801 (explains computer‑entice statute punishes solicitation when defendant believes correspondent is a child)
- Brown v. State, 321 Ga. App. 798 (conviction authorized where defendant believed he corresponded with minor and took steps to meet)
- Castaneira v. State, 321 Ga. App. 418 (attempted child‑molestation conviction supported by communications with person believed to be a child)
- Logan v. State, 309 Ga. App. 95 (enticement/attempt convictions supported by online communications and arranged meeting)
- Millsaps v. State, 310 Ga. App. 769 (defendant bears entrapment prima facie burden; predisposition is key element)
- Duncan v. State, 232 Ga. App. 157 (expert testimony that defendant is not a pedophile invades jury province and is inadmissible)
- Zamora v. State, 291 Ga. 512 (defendant not entitled to new trial when he acquiesced to proceedings in his absence)
- Heywood v. State, 292 Ga. 771 (absence from bench conference on procedural matters does not implicate right to be present)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)