State v. Grube

729 S.E.2d 42, 315 Ga. App. 885, 2012 Fulton County D. Rep. 1714, 2012 WL 1699933, 2012 Ga. App. LEXIS 465
CourtCourt of Appeals of Georgia
DecidedMay 16, 2012
DocketA12A0618
StatusPublished
Cited by7 cases

This text of 729 S.E.2d 42 (State v. Grube) 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
State v. Grube, 729 S.E.2d 42, 315 Ga. App. 885, 2012 Fulton County D. Rep. 1714, 2012 WL 1699933, 2012 Ga. App. LEXIS 465 (Ga. Ct. App. 2012).

Opinion

McFadden, Judge.

Timothy Harris Grube was indicted for the offenses of attempted child molestation, attempted aggravated child molestation, and computer pornography. After the trial court quashed his first indictment for failing to name the alleged victim of the charged offenses, the state reindicted him for the same offenses, identifying the victim as “Tiffany.” Grube filed a special demurrer seeking to dismiss the second indictment, again arguing that the indictment did not sufficiently identify the alleged victim. The trial court granted the special demurrer, and the state appeals. Reviewing the court’s ruling de novo, see State v. Corhen, 306 Ga. App. 495, 497 (700 SE2d 912) (2010), we find no error. Accordingly, we affirm.

Where, as here, we are reviewing a ruling on a special demurrer before the defendant has gone to trial, then we apply the rule that- a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance. See South v. State, 268 Ga. App. 110, 110-111 (601 SE2d 378) (2004).

The true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) State v. English, 276 Ga. 343, 346 (2) (a) (578 SE2d 413) (2003).

The indictment in this case charged Grube with computer por[886]*886nography under OCGA § 16-12-100.2 (d) by,

between the 9th day of October, 2009, and the 25th day of October, 2009,... intentionally utilizing] a computer Internet service to attempt to lure and entice “Tiffany,” a person believed by the accused to be a child, to commit child molestation and aggravated child molestation.

It charged Grube with attempting to commit a felony under OCGA § 16-4-1 by,

on the 25th day of October, 2009,... attempting] to commit the crime of aggravated child molestation in violation of OCGA § 16-6-4 (c), in that the said accused did knowingly and intentionally perform acts which constituted a substantial step toward the commission of said crime in that the accused did engage in explicit communications with “Tiffany,” a person the accused believed to be a 14 year old girl, describing his desire to engage in oral sodomy with said 14 year old girl, arranged a meeting with her, and arrived at said meeting place.

Finally, the indictment charged Grube with attempting to commit a felony under OCGA § 16-4-1 by,

on the 25th day of October, 2009,... attempting] to commit the crime of child molestation, in violation of OCGA § 16-6-4, in that the said accused did knowingly and intentionally perform acts which constituted a substantial step toward the commission of said crime in that the accused did engage in explicit communications with “Tiffany,” a person the accused believed to be a 14 year old girl describing his desire to engage in sexual intercourse with her, arranged a meeting with her, and arrived at said meeting place with condoms.

1. As an initial matter, the state argues that the trial court erred in considering and granting the special demurrer because Grube relied upon facts outside the indictment, namely that the victim was not an actual child but instead was an adult working with law enforcement. The state contends that this turned Grube’s motion into an improper speaking demurrer. See State v. Givens, 211 Ga. App. 71, 72 (438 SE2d 387) (1993) (a speaking demurrer is void and should never be sustained). We disagree. “A speaking demurrer is one which alleges some new matter, not disclosed by the pleading (indictment) against which the demurrer is aimed and not judicially known or legally presumed to be true.” (Citation and punctuation omitted; [887]*887emphasis supplied.) Id. In this case, the trial court knew that Grube’s alleged victim was an adult (or adults) because the state had stipulated earlier in the proceedings that “she” was an adult working with law enforcement and the trial court had cited to the state’s stipulation in an order.

2. Citing Dennard v. State, 243 Ga. App. 868 (534 SE2d 182) (2000), the trial court held that Grube’s indictment was insufficient to withstand a special demurrer because it did not adequately identify the alleged victim. The state argues that this was error. We find, however, that the trial court’s ruling was proper under Dennard.

The defendant in Dennard was indicted for attempted child molestation, attempted statutory rape, attempting to entice a child for indecent purposes, and attempted sexual exploitation of children in connection with his exchange of messages over the Internet with an undercover police officer posing as a minor named “Shari.” Id. at 868-869. The trial court denied special demurrers which Dennard had sought to each count on the ground that the indictment did not name the victim of the charged offenses. Id. at 876 (2). We held that the trial court’s denial of the special demurrers was error. Id. at 876-877 (2). In doing so, we noted that our “Supreme Court [has] held that ‘(f)or the protection of the accused it is necessary that, in an indictment for an offense against the person of another, the person injured should be referred to by his correct name, if it be known, or by some name by which he is commonly and generally called.’ ” Id. at 876 (2) (quoting Irwin v. State, 117 Ga. 722 (2) (45 SE 59) (1903)). Although we acknowledged that this rule did not apply if the crime was not an offense against another person — such as soliciting a prostitute (a crime against society) or burglary (a crime against property) — we held that each of the crimes with which Dennard was charged was a crime against a particular person. Id. at 876-877 (2). We concluded that

nothing in the indictment indicates that the intended victim was in fact an undercover officer, as opposed to an actual child. Thus, on its face, the indictment charges Dennard with attempting to commit various crimes against an actual unnamed victim, and nothing in the indictment puts him on notice of who that victim is.

Id. at 877 (2).

The state’s attempts to distinguish Dennard are not persuasive. The state argues that the crimes for which Grube was charged — attempted child molestation, attempted aggravated child molestation, and computer pornography based upon solicitation of child [888]*888molestation — were not crimes against a particular person but rather crimes against society. But in Dennard we held that attempted child molestation and attempted aggravated child molestation were

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Bluebook (online)
729 S.E.2d 42, 315 Ga. App. 885, 2012 Fulton County D. Rep. 1714, 2012 WL 1699933, 2012 Ga. App. LEXIS 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grube-gactapp-2012.