Skelhorn v. the State
332 Ga. App. 782
Ga. Ct. App.2015Background
- Defendant Andrew Skelhorn was convicted by a jury of three counts under OCGA § 16-12-100.2 (computer/electronic pornography and child exploitation statutes) based on online communications he had with an undercover investigator posing as a 13-year-old in a Yahoo! chat room and later via Yahoo! Messenger/webcam.
- Chats and webcam screenshots showed Skelhorn masturbating, asking explicit sexual questions, describing sexual acts in detail, offering his phone number, and proposing a face-to-face meeting to engage in sexual acts.
- Investigators matched the webcam subject to Skelhorn by DMV photo and executed a search warrant at his residence, obtaining physical evidence and a recorded statement played at trial.
- Skelhorn challenged (1) sufficiency of proof that he used a “computer on-line service” as alleged; (2) the indictment/count 1 for failing to allege the phrase “computer on-line service” and failure to instruct the jury accordingly; (3) insufficiency of proof of a substantial step for the attempt charge in count 1; and (4) denial of his motion to suppress evidence seized under the warrant.
- The trial court admitted the search-warrant evidence and his statement at trial after defense counsel explicitly stated no objection; on appeal the Court of Appeals found that statement amounted to waiver of suppression arguments.
Issues
| Issue | Skelhorn's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the State proved use of a “computer on-line service” for obscene Internet contact counts | State failed to prove use of a computer on-line service as charged | The statute lists on-line messaging as an example of computer on-line service; evidence showed use of on-line messaging/webcam | Evidence sufficient; on-line messaging is a listed type of computer on-line service and was proven |
| Whether the indictment/count 1 was defective for not alleging the term “computer on-line service” when it alleged use of an Internet chat room | Count 1 defective for omitting the phrase "computer on-line service" | Internet chat room is expressly listed as a kind of computer on-line service, so allegation was adequate | Indictment was not defective; no instruction including the phrase was required |
| Whether the State proved a substantial step for the attempt (lure/solicit/entice) charge in count 1 | State failed to show a substantial step toward committing the underlying sexual offense | Chat communications, webcam, phone number, and meeting arrangements constituted substantial steps | Court agreed substantial-step proof required and held the evidence was sufficient to support attempt conviction |
| Whether denial of the motion to suppress was reviewable | Suppression ruling was erroneous | Defense counsel waived suppression objection at trial by stating no objection; evidence was admitted with stipulation | Issue waived; appellate review of suppression denied |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- State v. Cosmo, 295 Ga. 76 (attempt under § 16-12-100.2 requires intent and a substantial step)
- Ganaway v. State, 282 Ga. 297 (no need to charge non-elemental facts when not required by statute)
- Williams v. State, 314 Ga. App. 840 (trial counsel’s affirmative no-objection waives suppression grounds)
- Dyer v. State, 233 Ga. App. 770 (stating that affirmatively conceding admissibility concedes suppression points)
- Berryhill v. Georgia Community Support & Solutions, Inc., 281 Ga. 439 (interpretation of “includes but is not limited to” as illustrative)
- United States v. Rothenberg, 610 F.3d 621 (11th Cir.) (communications as principal means of attempt/enticement offenses)
- Morris v. State, 322 Ga. App. 682 (standards for viewing evidence on appeal)