Kelley v. StateKelley v. State
Following a jury trial, Mark Brian Kelley was convicted of enticing a child for indecent purposes and solicitation of sodomy.1 On appeal, Kelley raises two enumerations of error. He challenges the sufficiency of the evidence as to his conviction for enticing a child for indecent purposes аnd argues, alternatively, that the conviction should be reversed because the trial court failed to charge the jury on asportation. For the reasons that follow, we affirm.
“On appeal from a criminаl conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.”2 So
On March 1, 2008, while B.B. was visiting another friend‘s home, she received some unusual text messages from H.K.‘s phone.3 The first message said “you‘re hot,” and B.B. replied, “you‘re hot too,” because she thought that H.K. was playing on the phone. B.B. testified that subsequent messages asked her to send naked pictures of herself and that she began to suspect that Kelley was sending the messages because of an inappropriate comment he had made to her in the past.4
Eventually, B.B. sent а text message asking if Kelley was using H.K.‘s phone and he replied, “you caught me.” According to B.B., Kelley then asked that she send a naked picture of herself again, and she responded, “dude, you‘re like 40.” Kelley continued to send text messages, asking B.B. to have sex, offering her money to do so, and indicating his desire to perform oral sex on her. B.B. showed the messages to the friend with whom she was staying and her friend‘s mother, Lou Ann Aylor, who called the police. While waiting for the police to arrive, B.B. emailed the messages to Aylor so that they could print them, and B.B. could erase them from her phone. Officer Carrie Ann Silvers of the Floyd County Policе Department arrived before B.B. erased the text messages and saw them on B.B.‘s phone. On the next day, Kelley continued to send text messages, suggesting that B.B. tell Aylor that she was going to church with H.K. so that he could pick her up and take her to his house to have sex. Aylor printed all of the messages, which were admitted into evidence.
Investigator Gary Conway met with B.B. and Aylor about the incident at the police department on Mаrch 2, 2008. Conway set up a sting operation to apprehend Kelley. Conway told B.B. to call Kelley and not to mention anything about sex, because Kelley needed to initiate that conversation. The reсording of the telephone call between B.B. and Kelley was played for the jury. During the call, Kelley told B.B. that he wanted to make love to her, would pay her $50, agreed to provide marijuana for them to use, reassured her that she could not get pregnant because he had been “clipped,” and arranged a time and place for them to meet. Police officers accompanied B.B. to the appointed place, and as soon as B.B. indicated that Kelley had arrived, he was arrested.
Investigator Mark Corbin arrested and searched Kelley, finding $50 on his person. Corbin testified that he read Kelley his Miranda rights, that Kеlley waived his rights, and that he made a statement. Kelley‘s recorded statement was played for the jury, during which he admitted to sending the text messages to B.B. and to setting up a meeting with her, and stated that he intended to pick her up so that they could have sex.
Kelley testified in his own defense. He stated that the text messaging began seven to ten days prior to his arrest; that he did not know the sender‘s identity; and that he would have stopped hаd he known the sender was a 15-year-old girl. Kelley explained that he thought the sender was older because of the content of the messages. Kelley testified that his statement was coerced after he wаs beaten by the police and that he did not recall signing the waiver of rights form although he admitted that his signature was on the form. On cross-examination, Kelley also admitted that he sent the text messages but repeatedly denied knowing B.B.‘s age. Kelley also admitted that he had made a mistake and apologized to B.B.‘s family and his own.
1. In his first enumerated error, Kelley argues that his conviction must be reversed because the state did not рresent evidence of asportation at trial. Specifically, Kelley argues that the state provided no evidence of a “taking” of B.B.; rather, the
Pursuant to
The fact that B.B. was a willing participant in a sting operation does not demand the reversal of Kelley‘s conviction.9 The record is replete with evidence thаt Kelley solicited and enticed B.B. to meet him to have sex both before and after the police became involved in the case, which sufficiently established the necessary elements of the offense. Kelley did not deny sending the text messages or going to the meeting place for the purpose of picking up B.B. so that they could have sex. Accordingly, Kelley‘s challenge to the sufficiency of the evidence fails.
2. Alternatively, Kelley argues that his conviction must be reversed because the trial court failed to charge the jury on asportation. The record shows that the trial court charged the jury using the languagе of
The pattern jury charges suggested by the Council of Superior Court Judges does not seem to contain a separate instruction аbout asportation. The word is mentioned only in the pattern jury charge for kidnapping, which says in part, “To prove abduction, the [s]tate must prove the element of asportation. Asportation means `carrying away.’ Only the slightest movement of the victim is required to constitute the necessary element
If the defendant had orally specified precisely which words he wished spoken, the trial court‘s “waiver” would have been effective and the error would have been preserved for appeal. But counsel cannot expect a trial court to devise a jury instruction based on a nonspecific request for a charge on a particular principle of law. The trial judge might choose words with which counsel would have been displeased. Then there would be an enumеration of error about the words chosen. The present enumeration of error presents nothing for review.12
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.