FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
August 16, 2012
In the Court of Appeals of Georgia A12A1534. HEARD v. THE STATE. BO-058C
BOGGS, Judge.
Following a bench trial, Dale Heard was convicted of criminal attempt to entice
a child for indecent purposes. Heard appeals, asserting only a challenge to the
sufficiency of the evidence. We reverse because the State presented insufficient
evidence to support the only crime with which it charged Heard.
On appeal from a criminal conviction, this court views the evidence in the light
most favorable to the verdict, and the appellant no longer enjoys the presumption of
innocence. Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). An appellate
court does not weigh the evidence or determine witness credibility; instead, it decides
whether, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find
beyond a reasonable doubt that the defendant was guilty of the charged offense. Id.
So viewed, the evidence shows that in July 2011, the 12-year-old victim
received a text from an unknown number stating, “hey [victim’s first name], what’s
up?” When the victim asked who was sending her the text, she learned that it was
Heard, the father of teenage boys with whom she was friends. When she inquired
about why he was sending her text messages, he responded “I don’t know, for the fun
it.” They exchanged numerous text messages1 and at some point during their
exchanges, Heard asked the victim to “send a naked shot.” The victim responded,
“no,” and when Heard asked “why,” she explained “because you’re old and that is just
wrong.” During the time period that Heard was sending her text messages, the victim
contacted one of his sons and asked him to tell his father to stop sending her text
messages.
Heard lived “roughly adjacent” to the home which the victim’s mother rented2
in a “family-oriented community” with “a lot of children in the area.” While the
1 The record does not contain the content of each text message exchanged between Heard and the victim. 2 At the time of the trial, the victim and her mother had moved to another location.
2 victim testified that she had never had problems with Heard in the past, she found it
“odd” that every time she was outside at a friend’s house nearby, Heard would always
go outside and sit on his porch or mow his lawn even though the grass did not need
mowing.
The victim’s mother learned about Heard’s texts from one of the victim’s
friend’s mother. After confirming with her daughter that Heard had sent her a text
message requesting a naked photo, the mother confronted Heard at his home. Heard
admitted sending a text message to the victim and “said he did ask for a picture and
may have mentioned naked.” The mother contacted the sheriff’s department, and
Heard told the responding deputy that he had received a request for a naked picture
that he may have accidentally forwarded to the victim. In a later videotaped interview
with a sheriff’s department investigator, Heard admitted sending a text message to the
victim.
A Verizon Wireless representative testified that approximately 40 text
messages were exchanged between a phone registered to Heard’s wife and a phone
used by the victim between 11:26 a.m. and 12:54 a.m. The representative also
demonstrated how a person would have to manually enter a phone number to forward
3 a message on a Blackberry Model 9330, the same phone used by Heard to send text
messages to the victim.
The State charged Heard with only one crime for his text message: criminal
attempt to entice a child for indecent purposes. See OCGA §§ 16-4-1 and 16-6-5 (a).
On appeal, Heard argues that the conduct proved by the State during his trial cannot
support a conviction for attempting to entice a child because the State cannot prove
attempted asportation, an essential element of child enticement. He admits in his brief
to this court that his conduct “might have been some other crime,” refers to the
criminal exploitation of children statute, OCGA § 16-12-100 (b) (1),3 and notes that
this crime does not have an asportation element.
Heard correctly asserts that the crime of enticing a child includes an asportation
element. See Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990). “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.” OCGA 16-6-5(a). “[T]he
3 This Code Section makes it “unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce 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.”
4 asportation element of this offense is satisfied whether the ‘taking’ involves physical
force, enticement, or persuasion.” (Punctuation omitted.) Cimildoro, supra, 259 Ga.
at 336. “The concept of asportation relates to movement, and a conviction for enticing
a child cannot be sustained without evidence of movement. See Bragg v. State, 217
Ga. App. 343 (1) (457 SE2d 262) (1995) (no evidence defendant caused children to
move toward place where pornographic movies would be viewed); Henderson v.
State, 303 Ga. App. 531, 534 (2) (694 SE2d 185) (2010) (no evidence defendant
enticed, persuaded or lured children into another area of house).
The State correctly asserts that it was not required to prove completed
asportation because it charged Heard with attempted enticing of a child. Instead, it
must satisfy the elements of the criminal attempt statute, OCGA § 16-4-1, which
provides: “A person commits the offense of criminal attempt when, with intent to
commit a specific crime, he performs any act which constitutes a substantial step
toward the commission of that crime.” In Dennard v. State, 243 Ga. App. 868, 872
(1) (c) (534 SE2d 182) (2000), we addressed the interplay between the asportation
element of enticing a child and a charge of attempt. We concluded that the defendant
was properly charged with attempted enticing of a child because the defendant
arranged a meeting with the victim at a local mall. Although the victim did not go to
5 the proposed meeting, we found that the defendant had taken a substantial step
toward the commission of the crime. “[I]f the intended victim had responded to [the
defendant]’s enticement by proceeding to the arranged meeting place, the element of
asportation would have been satisfied” for the completed crime. Id. at 873-874 (1) (c).
In contrast to the facts presented in Dennard, the victim’s compliance with
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FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
August 16, 2012
In the Court of Appeals of Georgia A12A1534. HEARD v. THE STATE. BO-058C
BOGGS, Judge.
Following a bench trial, Dale Heard was convicted of criminal attempt to entice
a child for indecent purposes. Heard appeals, asserting only a challenge to the
sufficiency of the evidence. We reverse because the State presented insufficient
evidence to support the only crime with which it charged Heard.
On appeal from a criminal conviction, this court views the evidence in the light
most favorable to the verdict, and the appellant no longer enjoys the presumption of
innocence. Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). An appellate
court does not weigh the evidence or determine witness credibility; instead, it decides
whether, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find
beyond a reasonable doubt that the defendant was guilty of the charged offense. Id.
So viewed, the evidence shows that in July 2011, the 12-year-old victim
received a text from an unknown number stating, “hey [victim’s first name], what’s
up?” When the victim asked who was sending her the text, she learned that it was
Heard, the father of teenage boys with whom she was friends. When she inquired
about why he was sending her text messages, he responded “I don’t know, for the fun
it.” They exchanged numerous text messages1 and at some point during their
exchanges, Heard asked the victim to “send a naked shot.” The victim responded,
“no,” and when Heard asked “why,” she explained “because you’re old and that is just
wrong.” During the time period that Heard was sending her text messages, the victim
contacted one of his sons and asked him to tell his father to stop sending her text
messages.
Heard lived “roughly adjacent” to the home which the victim’s mother rented2
in a “family-oriented community” with “a lot of children in the area.” While the
1 The record does not contain the content of each text message exchanged between Heard and the victim. 2 At the time of the trial, the victim and her mother had moved to another location.
2 victim testified that she had never had problems with Heard in the past, she found it
“odd” that every time she was outside at a friend’s house nearby, Heard would always
go outside and sit on his porch or mow his lawn even though the grass did not need
mowing.
The victim’s mother learned about Heard’s texts from one of the victim’s
friend’s mother. After confirming with her daughter that Heard had sent her a text
message requesting a naked photo, the mother confronted Heard at his home. Heard
admitted sending a text message to the victim and “said he did ask for a picture and
may have mentioned naked.” The mother contacted the sheriff’s department, and
Heard told the responding deputy that he had received a request for a naked picture
that he may have accidentally forwarded to the victim. In a later videotaped interview
with a sheriff’s department investigator, Heard admitted sending a text message to the
victim.
A Verizon Wireless representative testified that approximately 40 text
messages were exchanged between a phone registered to Heard’s wife and a phone
used by the victim between 11:26 a.m. and 12:54 a.m. The representative also
demonstrated how a person would have to manually enter a phone number to forward
3 a message on a Blackberry Model 9330, the same phone used by Heard to send text
messages to the victim.
The State charged Heard with only one crime for his text message: criminal
attempt to entice a child for indecent purposes. See OCGA §§ 16-4-1 and 16-6-5 (a).
On appeal, Heard argues that the conduct proved by the State during his trial cannot
support a conviction for attempting to entice a child because the State cannot prove
attempted asportation, an essential element of child enticement. He admits in his brief
to this court that his conduct “might have been some other crime,” refers to the
criminal exploitation of children statute, OCGA § 16-12-100 (b) (1),3 and notes that
this crime does not have an asportation element.
Heard correctly asserts that the crime of enticing a child includes an asportation
element. See Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990). “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.” OCGA 16-6-5(a). “[T]he
3 This Code Section makes it “unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce 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.”
4 asportation element of this offense is satisfied whether the ‘taking’ involves physical
force, enticement, or persuasion.” (Punctuation omitted.) Cimildoro, supra, 259 Ga.
at 336. “The concept of asportation relates to movement, and a conviction for enticing
a child cannot be sustained without evidence of movement. See Bragg v. State, 217
Ga. App. 343 (1) (457 SE2d 262) (1995) (no evidence defendant caused children to
move toward place where pornographic movies would be viewed); Henderson v.
State, 303 Ga. App. 531, 534 (2) (694 SE2d 185) (2010) (no evidence defendant
enticed, persuaded or lured children into another area of house).
The State correctly asserts that it was not required to prove completed
asportation because it charged Heard with attempted enticing of a child. Instead, it
must satisfy the elements of the criminal attempt statute, OCGA § 16-4-1, which
provides: “A person commits the offense of criminal attempt when, with intent to
commit a specific crime, he performs any act which constitutes a substantial step
toward the commission of that crime.” In Dennard v. State, 243 Ga. App. 868, 872
(1) (c) (534 SE2d 182) (2000), we addressed the interplay between the asportation
element of enticing a child and a charge of attempt. We concluded that the defendant
was properly charged with attempted enticing of a child because the defendant
arranged a meeting with the victim at a local mall. Although the victim did not go to
5 the proposed meeting, we found that the defendant had taken a substantial step
toward the commission of the crime. “[I]f the intended victim had responded to [the
defendant]’s enticement by proceeding to the arranged meeting place, the element of
asportation would have been satisfied” for the completed crime. Id. at 873-874 (1) (c).
In contrast to the facts presented in Dennard, the victim’s compliance with
Heard’s request to send a naked picture would not have satisfied the element of
asportation because the request did not attempt to entice or persuade the victim to go
to another place. Without evidence that Heard attempted to move the victim “any
place whatsoever,” the State failed to prove that Heard possessed the requisite intent
to commit the crime of enticing a child and that he took a substantial step toward
committing that crime.
Therefore, while the State presented sufficient evidence showing that Heard
requested a 12-year-old minor to send him a naked picture, it presented insufficient
evidence to prove all of the elements of the only crime with which it charged Heard:
attempted enticing of a child. On appeal from a criminal conviction, our role is
limited to reviewing whether the State presented sufficient evidence to sustain the
crime for which a defendant was charged and convicted. We therefore cannot remedy
6 the State’s failure to charge Heard with a different crime for which this evidence
might have been sufficient to affirm a conviction and are constrained to reverse.
Judgment reversed. Doyle, P. J. and Andrews, J., concur.