Abney v. State

759 S.E.2d 618, 327 Ga. App. 551, 2014 Fulton County D. Rep. 1632, 2014 WL 2598710, 2014 Ga. App. LEXIS 376
CourtCourt of Appeals of Georgia
DecidedJune 11, 2014
DocketA14A0690
StatusPublished

This text of 759 S.E.2d 618 (Abney v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abney v. State, 759 S.E.2d 618, 327 Ga. App. 551, 2014 Fulton County D. Rep. 1632, 2014 WL 2598710, 2014 Ga. App. LEXIS 376 (Ga. Ct. App. 2014).

Opinion

BARNES, Presiding Judge.

Ronald Lynne Abney was indicted on three counts of obscene Internet contact with a child, and a jury found him guilty of all three counts. However, before sentencing, the trial court granted Abney’s general demurrer to Count 1 of the indictment and entered a judgment of conviction and sentence only on Counts 2 and 3. The trial court thereafter denied Abney’s motion for a new trial on Counts 2 and 3. On appeal, Abney contends that he is entitled to a new trial on Counts 2 and 3 of the indictment because the trial court erred in refusing to allow a defense expert to testify about the results of Abney’s pretrial psychosexual evaluation. Abney also contends that the trial court erred when it reserved ruling on his general demurrer to Count 1 of the indictment until after the jury found him guilty of all three counts. For the reasons discussed below, we discern no error and affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that in November 2010, an undercover officer with the Special Victims Unit of the Gwinnett County Police Department was investigating Internet crimes against children. The officer pursued these investigations by using a computer at police department headquarters to pose as an underage teenager in chat rooms on the Internet. The officer would wait for a user to broach the subject of sex or the sharing of explicit photographs or videos. The officer’s computer was programmed to record the written communications, photographs, or videos that were transmitted during conversations the officer had with such a user. Consequently, the written communications, photographs, and videos at issue in the present case were recorded.

On the afternoon of November 1, 2010, the officer logged onto an Internet chat room posing as a 13-year-old girl with the screen name “dixiechickiel3.” The chat room was a “regional chat room” for Atlanta. Although it was the policy of the chat room that all online users be at least 18 years old, the officer testified that in his experience the age policy was not policed by the Internet company associated with the chat room.

While posing as “dixiechickiel3,” the undercover officer was contacted via instant message by another website user, later identified as Abney, using the screen name “mike_oxardl0.” Abney identified himself as a 36-year-old male located in Georgia. The officer responded that he was a 13-year-old female located in Georgia who was “sitting here, waiting for mom to get home.”

[552]*552Abney asked “dixiechickiel3” if she had any “pics to share.” The undercover officer then sent Abney photographs of a female colleague in the police department who had given the officer permission to use pictures that had been taken of her when she was 13 or 14 years old. Abney viewed the photographs and commented that “dixiechickiel3” was a “cutie.” He asked “dixiechickiel3” if she had a boyfriend or if her mom knew that she was logged into the chat room, and the officer answered in the negative to both questions and wrote that “[mom] would FREAK.”

Abney invited “dixiechickiel3” to view his webcam transmission. The undercover officer accepted the request, which allowed him to see and record the video transmitted from Abney’s computer as they wrote back and forth to each other. After Abney activated his web-cam, he asked “dixiechickiel3” whether she had ever been “naughty” online, and the officer responded, “im new on here.” Abney also asked “dixiechickiel3” if she had ever had sex, and the officer answered in the negative. Abney then engaged in a graphic conversation with the officer posing as “dixiechickiel3” about sex and masturbation while transmitting images from his webcam of his penis as he masturbated. During the interaction, Abney asked “dixiechickiel3” if she had “pics of [her] ass” or in a bikini, and the officer responded, “no sorry i don’t, mom got pissed and took away my phone ... [that] had my earner [a].” The officer ultimately broke off the interaction by claiming that “mom will be home in a few minutes.”

Following an investigation into the identity of “mike_oxardlO,” the undercover officer who had posed as “dixiechickiel3” along with other officers executed a search warrant at Abney’s house in Gwinnett County, where they discovered a computer with an online account under that user name. Abney was present during the search and agreed to speak with the undercover officer after being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Abney admitted that he was “mike_oxardlO” and had interacted online with “dixiechickiel3” in a sexually explicit manner. But Abney claimed that he thought he had been engaging in “fantasy role play[ ]” with another adult user and never intended to interact with an actual underage female.

Based on his sexually explicit interaction with “dixiechickiel3,” Abney was indicted on three counts of obscene Internet contact with a child under OCGA § 16-12-100.2 (e) (l).1 The State alleged that in [553]*553his online interactions with “dixiechickiel3,” Ahney had believed he was interacting with a 13-year-old girl and thus had acted with the requisite criminal intent under the statute.

Abney retained a psychologist who conducted a psychological and psychosexual evaluation of him. After conducting the evaluation, the psychologist issued a report in which he opined that “Mr. Abney’s test results and his self-report are not suggestive of any sexual deviance towards minors,” that “Mr. Abney does not appear to pose a risk of sexually offending in the future,” and that “there does not appear to be any need for any psychological interventions based upon [Mr. Abney’s] sexual history and overall psychosexual (or psychological) functioning.”

Before trial, Abney filed a motion in limine requesting that he be permitted to call the psychologist to testify as a defense witness in support of his claim that he had not acted with the intent to interact with an underage girl. Following a pretrial hearing on the issue in which Abney proffered the report prepared by the psychologist, the trial court denied the motion. The trial court noted, “I mean, that’s the issue for the jury, is whether or not at the time of the [I]nternet liaison,... [Abney] had the intent that the statute requires.” The trial court further noted that “an expert cannot come in, no matter how well-trained they are, and opine about what is the ultimate issue for a jury.”

At the ensuing jury trial, the undercover officer who had posed as “dixiechickie 13” testified regar ding his online interactions with Abney, the search of Abney’s house, and his interview with Abney. The State also introduced into evidence an audio recording of the officer’s interview of Abney, as well as transcripts of the online communications between Abney and “dixiechickie 13,” the photographs of the underage girl that the undercover officer had sent to Abney, and screen shots of the sexually explicit images transmitted from Abney’s webcam.

After the State rested, Abney argued that Count 1 of the indictment was subject to general demurrer on that ground that the substance of that count was legally insufficient to charge a crime

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Bluebook (online)
759 S.E.2d 618, 327 Ga. App. 551, 2014 Fulton County D. Rep. 1632, 2014 WL 2598710, 2014 Ga. App. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abney-v-state-gactapp-2014.