Weyer v. StateWeyer v. State
A jury found Jamie Lee Weyer guilty of two counts of sexual exploitation of children, and the trial court denied his amended motion for new trial. On appeal, Weyer contends
1. We first address the sufficiency of the evidence.
When we consider whether the evidence is sufficient to sustаin a conviction, we ask whether any rational jury could have found proof beyond a reasonable doubt of the guilt of the defendant in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to weigh the evidence, pass upon the credibility of witnesses, and resolve conflicts in the evidence. So, if the record сontains some competent evidence sufficient to prove beyond a reasonable doubt each element of the crime of which the defendant was convicted, we must uphold the conviction, even if the evidence is contradicted.
(Citations omitted.) Copeny v. State,
Viewed in the light most favorable to the verdict, the evidence showed that on August 9, 2012, the teenage child A. M., who lived with her grandmother, was at home in her bedroom with her cousin, H. M., who was spending the night. A. M. and H. M. wеre both 16 years old. The grandmother’s boyfriend, Weyer, also was at the house, but in a different room. Weyer, who was 49 years old, had known A. M. since she was five and H. M. since she was “little.”
Around 10:20 p.m., Weyer began sending text messages to A. M. in which he requested nude photographs of her and H. M. Weyer continued sending text messages until shortly after midnight and then started again the next morning. A. M. and H. M. later testified that Weyer’s text messages scared them. H. M. was afraid Weyer “was going to comе in the room to us” after he made the request for photographs.
With respect to the text messages at issue, Weyer initially texted A. M., “I’ve been really good to yall latley right?”
A. M. indicated to Weyer that she was afraid that her grandmother would see the photographs if she took them on her phone. Weyer wrote in response that he could provide A. M. with his phone. A. M. reрlied, “Not now. Have to get a shower....” Weyer wrote back, “Okay,” and then “Tell me what to do!” followed by “I can wait!! I’ve been watching this long, ok.”
A. M. then sent Weyer a photograph of herself in a bikini. Weyer responded, “PLEASE! more baby!:-)” and “i want more please!” A. M. wrote back that she was busy, to which Weyer replied, “Ok-sorry not tryin to push, we will have ops for more-ihope thats what you want to.” A. M. wrote, “K,” and Weyer responded, “Thank you!:-).”
A few minutes later, Weyer texted A. M. to ask if she was “freaking out” and if she could “send sum from [H. M.’s] phone.” When A. M. did not respond, Weyer wrote, “Please tell me sumthin” and then, “Please!” A. M. replied, “I’m not freakin out. I’m sleepin.” Weyer texted back, “ok-your not afraid of me are ya?,” and A. M. replied, “No.” Weyer then wrote that he loved the photograph A. M. had sent him and asked her if she could “send more from [H. M.’s] phone.” After receiving
The next morning, Weyer was sitting on the front porch when A. M. and H. M. were leaving the house to drive to school. When Weyer saw A. M. and H. M., he said, “Have a good day, girls,” and winked at them. After A. M. and H. M. got in the car, they noticed that a pack of cigarettes and Weyer’s lighter had been placed in the middle console area.
As A. M. and H. M. drove to school, Weyer sent several text messages to them referring to his prior request for photographs and asking if they were upset with him. When Weyer texted H. M. to ask whether she would send him any photographs, H. M. replied, “Hell no.” Weyer then wrote, “aww to bad for me but are we cool?,” and H. M. responded, “Ya.” Weyer texted back, “good! Hate to think we wasnthoрe you change your mind-i can hide em H. M. replied, “Jamie im 16?,” and thereafter noted that A. M. was the same age. Weyer ended the exchange by texting, “Cant blame a guy for tryin! hope we still cool bot everything else.and “good wouldnt want iit any other way!:)”
After A. M. and H. M. arrived at school, they spoke to the high school resource officer about the text messages sent by Weyer. The resource officer contacted a police investigatоr, who interviewed A. M. and H. M. and took possession of their phones. A forensic analysis subsequently was conducted of the phones, resulting in the successful retrieval of the relevant text messages and the photograph that A. M. had sent to Weyer.
The police investigator procured an arrest warrant and arrested Weyer later that same day. Weyer spoke with an investigator after he was advised of his rights under Miranda v. Arizona,
The police investigator obtained Weyer’s phone, and a forensic anаlysis was performed of its contents. While none of the relevant text messages between Weyer and A. M. or H. M. could be found on Weyer’s phone, Weyer admitted that he had deleted some of his messages. But Weyer had not deleted from his phone the photograph of A. M. in a bikini that she had sent him.
Weyer was indicted on two counts of sexual exploitation of children for enticing A. M. and H. M. to take nude photographs of themselves. A jury trial ensued at which A. M. аnd H. M. testified to events as summarized above. In addition to their testimony regarding the incident in question, A. M. and H. M. testified about previous interactions they had with Weyer. A. M. testified that earlier that summer, Weyer had slapped her on the buttocks with his hand, commenting that her shorts were too short. H. M. testified that on a prior occasion, she was sitting alone with Weyer on the back porch, and he began speaking to her with his face close to her face. When H. M. tried to move away, Weyer had replied, “No, baby, come here.” Both A. M. and H. M. further testified that on previous occasions that summer, Weyer had provided them with cigarettes and allowed them to smoke in his presence.
The State also called the police investigator involved in the case and introduced expert testimony regarding the forensic analysis of the phones, as well as printouts of the relevant text messages and the photograph of A. M. in a bikini that she had sent to Weyer. Additionally, the State introduced and played for the jury a video recording of Weyer’s interview with the police investigator. Weyer elected not to testify and did not call any defense witnesses.
After the close of the evidence and the charge of the court, the jury found Weyer guilty of both charged offenses. Weyer filed
Under Georgia’s sexual-exploitation-of-children statute, “[i]t is unlawful for any person knowingly to . . . entice . . . any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.”
Count 1 of the indictment alleged in relevant part that Weyer committed sexual exploitation of children by enticing A. M. “to engage in sexually explicit conduct, to wit: take off her clothing and take a photography of herself naked, for the purpose of producing a digital photograph, a visual medium depicting such conduct.” Count 2 of the indictment alleged that Weyer committed sexual exploitation of children by enticing H. M. in the same manner.
(a) Weyer contends that there was insufficient evidence to support his convictions because the State failed to prove that any photographs showing the lewd exhibition of the genitals or pubic area of A. M. or H. M. were ever taken and transmitted to him. Weyer emphasizes that the only photograph introduced into evidence showed A. M. in a bikini and argues that, as a result, his convictions must be overturned in light of оur decision in Craft v. State, 252 Ga. App. 834, 839-843 (1) (
Weyer’s contention is misplaced. The statutory language of
Furthermore, Craft,
As an initial matter, we agree with Weyer that “genitals” and “pubic area” do not include buttocks or breasts. “Genitals” and “pubic area” are not defined in
Nevertheless, Weyer’s argument regarding the sufficiency of the evidence is without merit. Weyer clearly sought nude photographs of A. M. and H. M. when he wrote to A. M., “NAKED-i want to see your fine asses and tits naked!!” Based upon a narrow interpretation of part of this specific text message, Weyer аrgues that he wanted photographs of the victims’ breasts and buttocks and nothing more, but the jury was not required to leave its common sense at the door in resolving this case. Rather, the jurors were entitled to draw reasonable inferences from the evidence based on their own common-sense understanding of the world. See Lanier v. State,
(c) Lastly, Weyer contends that there is no evidence that he “enticed” A. M. and H. M. through the text messages that he sent to them. In this regard, Weyer argues that he “merely stated he would like the girls to send him some pictures” and “never offered them anything in return.”
“Entice” is not expressly defined in
Here, Weyer solicited nude photographs of A. M. and H. M. in his text messages to them, and he began the text messages by asking, “I’ve been really good to yall latley right?” Moreover, there was circumstantial evidence that the morning after his initial request for the nude photographs, Weyer provided cigarettes along with a lighter to A. M. and H. M. to tempt and attract them into granting his request. Consequently, there was sufficient evidence for the jury to find that Weyer enticed A. M. and H. M.
2. Weyer alsо contends that the trial court erred by failing to specifically define the term “entice” when requested to do so by the jury and instead instructing the jury that it should assign such words their “ordinary meaning.” As a result of this alleged error, Weyer contends that he is entitled to a new trial. We are unpersuaded.
The record reflects that in its initial charge to the jury, the trial court instructed the jury without objection:
A person commits sexual exploitation of children when he knowingly еntices any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct. Sexually explicit conduct is defined as actual or simulated lewd exhibition of the genitals or pubic area of any person. Visual medium is defined as any photograph or other visual medium. Minor means any person under the age of 18 years of age.
Subsequently, during its dеliberations, the jury sent out a note requesting that the trial court “[d]efine entice.” Before responding to the jury’s request, the trial court consulted with the State and Weyer’s trial counsel outside the presence of the jury. The trial court suggested that it instruct the jury that “[w]ords will have their ordinary meaning,” and Weyer’s counsel responded, “It sounds good to me.” The jury then entered the courtroom, and the trial court gave the following supplemental instruction:
Your quеstion is: “Define entice.” In the jury instructions, I defined certain words and certain terms, and when I did you’re required to follow that definition of those words or terms that you find in the jury instructions; otherwise, words that aren’t specifically defined, you use their ordinary meaning. With that instruction, you can go back to the jury room, and continue deliberating.
As the jury was leaving the courtroom to resume deliberating, one juror asked, “Can we get a dictionary?” The trial court declined to provide a dictionary to the jury and reiterated, “The meaning of words come from the ordinary meaning that you use of words from your life experience and the learning that you’ve had in life.” Weyer’s trial counsel did not object to any part of the trial court’s supplemental instruction to the jury.
When a jury does not ask the trial court to recharge its instructions, “but rather to expound on them[,] ... it [is] within the trial court’s sound discretion to determine the need, breadth, and formation of any additional jury instructions.” Holloman v. State,
[There are] four prongs to consider when analyzing a jury charge for plain error: First, there must be an error or defect — some sort of a deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the aрpellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellatecourt has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
(Citation, punctuation and emphasis omitted.) Wilson v. State,
The trial court committed no error by declining to specifically define the word “entice” for the jury as part of its supplemental instructions.
The rule is that when the charge embraces a section of the Code which contains technical words or expressions, the meaning of which is probably not understood by a person unlearned in the law, the court should so define them as to convey to the jury a correct idea of their meaning, but it is unnecessary for the court, even upon request, to explain words and expressions which are of ordinary understanding and self-explanatory.
(Footnote omitted.) Millsaps v. State,
Furthermore, the trial court acted within its discretion in declining the juror’s request for access to a dictionary during deliberations. See Long v. State,
For these combined reasons, we conclude that Weyer hаs failed to prove that the trial court committed any error in its fashioning of a supplemental instruction to the jury regarding the definition of “entice,” and thus the first prong of the test for plain error has not been satisfied. See Wilson,
Judgment affirmed.
Notes
We have preserved the original spelling, abbreviаtions, and punctuation of the text messages in our summary of the evidence adduced at trial.
Weyer and A. M. refer to A. M.’s grandmother as “Mom” or ‘Momma” in the text messages.
Given our conclusion that no error in the jury instruction has been shown, we need not reach the issue whether trial counsel’s response, “It sounds good to me,” constituted an affirmative waiver of Weyer’s right to assert a claim of plain error on appeal. See Kelly,
See, e.g., Mitchell v. State,