A Catoosa County jury found Emanuel Lopez guilty of using a computer internet service to seduce or entice another person believed by him to be a child for the purpose of committing child molestation and aggravated child molestation, in violation of Georgia’s Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, OCGA § 16-12-100.2 (d); and attempting to commit a felony, OCGA §§ 16-4-1; 16-6-4 (c) (aggravated child molestation). Following the denial of his motion for a new trial,
Viewed in the light most favorable to the jury’s verdict,
Over the next week, they continued to exchange e-mails, and Lopez asked if they could meet in person. In one e-mail, Lopez said, “I want to meet you and talk to you and know about you. Sweety, I believe you are the sweetest person I know and you are real. But, you know, because of your age I have to be careful.” He suggested that they get ice cream, take a walk and talk to get acquainted and said that he “would like to caress [her] a little, a hug, perhaps hold [her] hand, and just be with [her].” “Sara” responded that she thought he wanted to treat her like a woman, not like “a kid.” She insisted that she did not want just “cyber” interaction and that “Emanuel” should just “move on” if he only wanted to talk. Lopez then suggested that
They arranged to speak by telephone, and a female officer pretended to be the 14-year-old “Sara.” In a following e-mail, “Sara” suggested that they meet at her aunt’s house, when no one would be home, and asked “Emanuel” to bring wine coolers for them to drink and contraceptive protection. Lopez arrived at the time and place designated for his rendezvous with “Sara.” Officers arrested Lopez and searched him and his vehicle; he had four condoms and personal lubricant in his possession.
After his arrest, Lopez gave task force officers a statement in which he admitted that he really thought he was communicating with a 14-year-old girl. Lopez admitted that he drove two hours to meet with “Sara” and that he went prepared to have sexual relations with her. He admitted that, “right this minute” (at the time officers were interviewing him), if “Sara” were real he “would be molesting a 14-year-old girl.”
The indictment charged Lopez with violating OCGA § 16-12-100.2 (d), by “intentionally utiliz[ing] a computer Internet service to attempt to seduce and entice ‘Sara,’ a person believed by [him] to be a child, to commit child molestation or aggravated child molestation[,]” (Count l)
At trial, Lopez testified in his own defense and claimed that he thought he was communicating with an adult woman who was interested in role playing. He claimed that his intention was to go and “meet the real person that [he] thought [he] was talking to.” He testified that, when he met “Sara” in person, if she had actually turned out to be underaged, he would have walked away from the situation and that he would not have had sex with her. When con
1. Lopez contends that the indictment and verdict are contrary to law because there was no actual victim and the victim described in the complaint, a 14-year-old female named “Sara,” was a fiction created by law enforcement agents.
(a) Although OCGA § 16-12-100.2 (d) references an underlying purpose of the prohibited conduct, including, as in this case, child molestation, the principal act proscribed is an act of communication, that is, the solicitation or enticement of another for the underlying purpose. Bolton v. State,
(b) To convict Lopez of criminal attempt to commit aggravated child molestation as indicted, the State was required to prove that he took a substantial step toward doing any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or himself and that the act involved sodomy. Castaneira v. State, 321 Ga.
2. Lopez contends that, as applied, OCGA § 16-12-100.2 (d) (1) unconstitutionally restricts speech between consenting adults which is sexual in nature, but not necessarily obscene, “upon the sole justification that one of the adults is pretending to be a child.” He contends that, because the statute requires that a defendant have believed that he was communicating with a child, the law seeks to regulate and criminalize the thoughts of a human being.
3. Lopez contends that law enforcement agents induced him to enter Catoosa County by subterfuge for the purpose of obtaining venue and, therefore, that venue was not proper in Catoosa County, citing McCarty v. State,
4. Lopez contends that his psychological state, specifically, whether he was predisposed to seek sexual relations with minors, was relevant to his defense of entrapment. Lopez contends that the trial court therefore erred in excluding expert opinion evidence that the State improperly enticed him and that he lacks any predisposition to engage in sexual relations with underaged persons.
Lopez proffered the testimony of Dave Davis, M.D., a forensic psychiatrist who interviewed Lopez and conducted a forensic psychological and psychiatric examination. Lopez intended to call Dr. Davis to testify that, in his opinion, Lopez did not have any psychological tendencies to have sex with minor children and that the police e-mails had the psychological effect of enticing him to commit such crimes.
“If [a] defendant establishes a prima facie case of entrapment, the burden is then upon the State to disprove entrapment beyond a reasonable doubt.” (Punctuation and footnote omitted.) Millsaps v. State,
5. Lopez contends that the State failed to rebut his defense of entrapment. “The determination of whether the defendant was entrapped is for the jury unless the uncontroverted evidence demands a finding
6. Lopez contends that, on several occasions during voir dire and trial, he was excluded from discussions at the bench between the judge, the prosecutor, and his defense counsel, in violation of his constitutional right to be present during all critical stages of the proceedings. The trial transcript suggests that Lopez did not participate in some bench conferences, and, at the hearing on his motion for a new trial, he affirmatively testified that he did not do so. Therefore, there is some support in the record for Lopez’s argument that he was not “present” during all stages of the trial. The judge who presided over Lopez’s trial found, however, that he had advised Lopez of his right to participate in any bench conference. A defendant is not entitled to a new trial if he acquiesced in limited trial proceedings that occurred in his absence. See Zamora v. State,
Judgment affirmed.
Notes
Although Lopez filed his motion for a new trial a few days before the trial court entered a written judgment of conviction, a Georgia appellate court will review on the merits an appeal from the denial of a prematurely filed motion for a new trial in a criminal case; the motion is deemed to ripen upon the entry of the judgment of conviction. Rockholt v. State,
Jackson v. Virginia,
OCGA § 16-12-100.2 (d) (1) provides, as pertinent to the indictment:
It shall be unlawful for any person intentionally... to utilize a computer ... Internet service... to seduce... or entice... another person believed by such person to be a child ... to commit any illegal act by, with, or against a child as described in . . . [OCGA §] 16-6-4, relating to the offense of child molestation or aggravated child molestation [.]
See also OCGA § 16-12-100.2 (b) (1) (As used in the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, a “child” is “any person under the age of 16 years.”).
In Bolton v. State, we explained the similarities between the computer child exploitation offense set out in OCGA § 16-12-100.2 (d) and the offense of enticement of a child under OCGA § 16-6-5 (a), which provides that “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.”
The statutory language in both OCGA §§ 16-6-5 (a) and 16-12-100.2 (d) (1) similarly proscribe the solicitation or enticement of a child for the underlying purpose of child molestation. In the context of OCGA § 16-6-5 (a), we have held that a conviction of the offense need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted. Rather, the evidence need only show that an act of indecency or child molestation was the intended motivation for the enticement.
(Citations and punctuation omitted.)
See Bolton v. State,
See Stanley v. Georgia,
In McCarty v. State, we held that, where undercover officers from Muscogee County negotiated a drug purchase in a suspect’s home county, Sumter County, took possession of the drugs there, told the suspect that they would pay him in Muscogee County, and then drove the suspect in their car to Muscogee County solely in order to effect an arrest in their own jurisdiction, the officers’ activities in “maneuvering” the suspect there via “a subterfuge” was
OCGA § 16-3-25 provides:
A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime*776 originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.
(Emphasis supplied.) See also Keaton v. State,
Where a defendant accused of molestation planned to call an expert to testify, based on psychological tests, that the defendant did not have the characteristics of a pedophile, we concluded that
there is no authority for the admission of an expert opinion that the defendant who is on trial for sex crimes against a child is or is not a pedophile. The profile testimony sought to be introduced by the defendant goes to the credibility and believability of his own testimony that he did not commit the acts charged and further speaks to the ultimate fact of whether he committed those acts. From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victim’s truthfulness and the defendant’s capability of performing the acts he was accused of. These determinations did not involve unique and mysterious areas of human response necessitating expert testimony. There was no error in excluding this testimony, because such testimony invades the province of the jury as to the ultimate issue, i.e., the defendant’s guilt or innocence.
(Citation and punctuation omitted; emphasis in original.) Duncan v. State,