Smith v. the State
340 Ga. App. 457
Ga. Ct. App.2017Background
- Undercover officers posed online as a female under 16 in a motel room; Smith exchanged sexually explicit messages and traveled to the motel, where he was arrested.
- Smith was indicted on three counts: computer pornography (Count 1, OCGA § 16-12-100.2(d)), obscene telephone contact with a child (Count 2), and enticing a child for indecent purposes (Count 3, captioned under OCGA § 16-6-5 but alleging attempt).
- Smith filed general and special demurrers and a motion to quash; the trial court sustained the general demurrer to Count 2 but denied demurrers to Counts 1 and 3.
- Smith obtained interlocutory review of the denials as to Counts 1 and 3; the Court of Appeals granted the appeal.
- The core legal questions: whether Count 3 properly charged attempted enticement when the alleged victim was only believed to be a child, and whether Count 1 sufficiently identified the underlying unlawful sexual offense for a computer-pornography charge.
Issues
| Issue | Smith's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of Count 3 (enticement) to allege a Georgia offense | Count 3 fails because OCGA § 16-6-5 requires an actual child victim; indictment alleges only belief the person was under 16 | Count 3 alleges criminal attempt (substantial step) to violate § 16-6-5; attempt does not require an actual child if defendant believed one existed | Affirmed: indictment sufficiently alleges criminal attempt to entice a child (OCGA § 16-4-1 + § 16-6-5 elements via substantial step) |
| Fatal variance / form specificity for Count 3 | Caption cites § 16-6-5 but indictment alleges attempt; variance is fatal | Substance controls over statutory citation; indictment describes the offense and elements defendant must meet | Affirmed: no fatal variance; description of attempted offense suffices despite citation to § 16-6-5 |
| Sufficiency of Count 1 (computer pornography) to allege predicate unlawful sexual offense | Count 1 fails because it depends on defective Count 3 and otherwise does not allege a specific unlawful sexual offense | Count 1 tracks OCGA § 16-12-100.2(d), alleges attempt to entice under § 16-6-5 and thus sufficiently alleges a § 16-12-100.2(d) violation | General demurrer denied: Count 1 sufficiently alleges an attempt to entice under § 16-6-5 (affirmed) |
| Specificity / special demurrer to Count 1 (identify underlying offense) | Count 1 fails special demurrer because it generically alleges "conduct that by its nature is an unlawful sexual offense" without identifying which offense | The indictment tracks statutory language and names enticement under § 16-6-5 as an underlying offense | Reversed: special demurrer sustained as to Count 1 because indictment must identify the specific underlying unlawful sexual offense (per Wetzel) |
Key Cases Cited
- Dennard v. State, 243 Ga. App. 868 (Ga. Ct. App.) (criminal-attempt substantial-step standard supports attempt charges)
- Harlacher v. State, 336 Ga. App. 9 (Ga. Ct. App. 2016) (review of demurrer de novo; limiting context for attempt liability)
- Corhen v. State, 306 Ga. App. 495 (Ga. Ct. App.) (standards for demurrer review)
- Wetzel v. State, 298 Ga. 20 (Ga. 2015) (computer-pornography conviction requires identification of the underlying unlawful sexual offense)
- Rhodes v. State, 257 Ga. 368 (Ga.) (distinction between pointing a firearm and attempted aggravated assault)
- Brown v. State, 321 Ga. App. 798 (Ga. Ct. App.) (attempted child-sex offenses may be sustained where defendant communicated with an adult he believed to be a minor and took substantial steps)