2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 12 - Offenses Against Public Health and Morals
Article 3 - Obscenity and Related Offenses
Part 2 - Offenses Related to Minors Generally
§ 16-12-100. Sexual Exploitation of Children; Reporting Violation; Civil Forfeiture; Penalties

1. As used in this Code section, the term:
   1. "Minor" means any person under the age of 18 years.
   2. "Performance" means any play, dance, or exhibit to be shown to or viewed by an audience.
   3. "Producing" means producing, directing, manufacturing, issuing, or publishing.
   4. "Sexually explicit conduct" means actual or simulated:
      1. Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
      2. Bestiality;
      3. Masturbation;
      4. Lewd exhibition of the genitals or pubic area of any person;
      5. Flagellation or torture by or upon a person who is nude;
      6. Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;
      7. Physical contact in an act of apparent sexual stimulation or gratification with any person's unclothed genitals, pubic area, or buttocks or with a female's nude breasts;
      8. Defecation or urination for the purpose of sexual stimulation of the viewer; or
      9. Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.
   5. "Visual medium" means any film, photograph, negative, slide, magazine, or other visual medium.
2. 1. It is 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.
   2. It is unlawful for any parent, legal guardian, or person having custody or control of a minor knowingly to permit the minor to engage in or to assist any other person to engage in sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.
   3. It is 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 any performance.
   4. It is unlawful for any parent, legal guardian, or person having custody or control of a minor knowingly to permit the minor to engage in or to assist any other person to engage in sexually explicit conduct for the purpose of any performance.
   5. It is unlawful for any person knowingly to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute any visual medium which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.
   6. It is unlawful for any person knowingly to advertise, sell, purchase, barter, or exchange any medium which provides information as to where any visual medium which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct can be found or purchased.
   7. It is unlawful for any person knowingly to bring or cause to be brought into this state any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.
   8. It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.
3. A person who, in the course of processing or producing visual or printed matter either privately or commercially, has reasonable cause to believe that the visual or printed matter submitted for processing or producing depicts a minor engaged in sexually explicit conduct shall immediately report such incident, or cause a report to be made, to the Georgia Bureau of Investigation or the law enforcement agency for the county in which such matter is submitted. Any person participating in the making of a report or causing a report to be made pursuant to this subsection or participating in any judicial proceeding or any other proceeding resulting therefrom shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, providing such participation pursuant to this subsection is made in good faith.
4. The provisions of subsection (b) of this Code section shall not apply to:
   1. The activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses;
   2. Legitimate medical, scientific, or educational activities; or
   3. Any person who creates or possesses a visual medium depicting only himself or herself engaged in sexually explicit conduct.
5. 1. As used in this subsection, the terms "proceeds" and "property" shall have the same meaning as set forth in Code Section 9-16-2.
   2. Any property which is, directly or indirectly, used or intended to be used in any manner to facilitate a violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them.
   3. Any property subject to forfeiture pursuant to paragraph (2) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.
6. 1. Except as otherwise provided in paragraphs (2) and (3) of this subsection, any person who violates a provision of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five nor more than 20 years and by a fine of not more than $100,000.00; provided, however, that if the person so convicted is a member of the immediate family of the victim, no fine shall be imposed. Any person punished as provided in this paragraph shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
   2. Any person who violates subsection (c) of this Code section shall be guilty of a misdemeanor.
   3. Any person who violates paragraph (1), (5), (7), or (8) of subsection (b) of this Code section shall be guilty of a misdemeanor if:
      1. The minor depicted was at least 14 years of age at the time the visual medium was created;
      2. The visual medium was created with the permission of the minor depicted; and
      3. The defendant was 18 years of age or younger at the time of the offense and:
         1. The defendant's violation of such paragraphs did not involve the distribution of such visual medium to another person; or
         2. In the court's discretion, and when the prosecuting attorney and the defendant have agreed, if the defendant's violation of such paragraphs involved the distribution of such visual medium to another person but such distribution was not for the purpose of:
      4. Harassing, intimidating, or embarrassing the minor depicted; or
      5. For any commercial purpose.

(Ga. L. 1978, p. 2193, § 1; Ga. L. 1983, p. 1437, § 1; Ga. L. 1987, p. 1164, § 1; Ga. L. 1988, p. 11, §§ 1, 2; Ga. L. 1991, p. 886, § 3; Ga. L. 1995, p. 957, § 6; Ga. L. 1996, p. 6, § 16; Ga. L. 2003, p. 573, § 2; Ga. L. 2013, p. 663, § 1/HB 156; Ga. L. 2015, p. 693, § 2-15/HB 233; Ga. L. 2017, p. 489, § 4/HB 341.)

The 2017 amendment, effective July 1, 2017, added the last sentence of paragraph (f)(1).

- Selling, apprenticing persons under age 12 for indecent, obscene, or immoral exhibition, practice, or purpose, § 39-2-17.

Employment of minors as actors, or performers in motion pictures, theatrical productions, generally, § 39-2-18.

- Ga. L. 1991, p. 886, § 4, not codified by the General Assembly, provides: "(a) The repeal, or repeal and reenactment, of the provisions of Code Section 16-13-49 by this Act shall not abate any cause of action which arose at any previous time under the provisions of said Code section prior to the effective date of this Act. Furthermore, no action for forfeiture shall be abated as a result of the provisions of this Act, and any and every such action or cause of action shall continue, subject only to the applicable statute of limitations.

"(b) No property shall be subject to forfeiture pursuant to this Act where the act or omission which makes such property subject to forfeiture occurred prior to the effective date of this Act unless such property was subject to forfeiture under the laws of this state at the time such act or omission occurred."

Ga. L. 1995, p. 957, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Child Protection Act of 1995'."

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For article, "Inconsistencies in Georgia's Sex-Crime Statutes Teach Teens that Sexting is Worse than Sex," see 67 Mercer L. Rev. 405 (2016). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 84 (2003). For note, "Mandatory Child Abuse Reporting Laws in Georgia: Strengthening Protection for Georgia's Children," see 31 Ga. St. U.L. Rev. 643 (2015). For comment, "Mandatory Child Abuse Reporting Laws in Georgia: Strengthening Protection for Georgia's Children," see 31 Ga. St. U.L. Rev. 643 (2015).

ANALYSIS

• General Considerations
• Application
• Jury Instructions
• Sentencing

General Considerations

Constitutionality.

- Term "depict a minor" being construed narrowly, O.C.G.A. § 16-12-100 is not unconstitutional. Aman v. State, 261 Ga. 669, 409 S.E.2d 645 (1991).

Enactment of a state statute affecting an area of the law that is not addressed by the federal statute concerning child pornography law (18 U.S.C. § 2251) does not violate the Supremacy Clause of the United States Constitution. Aman v. State, 261 Ga. 669, 409 S.E.2d 645 (1991).

For purposes of equal protection analysis, defendant was not similarly situated to defendants who were charged with other crimes against children and was not subject to disparate treatment because O.C.G.A. § 16-12-100 criminalizes conduct involving all children under the age of 18 years, whereas other crimes against children specify a lower age threshold, and in certain instances, implicate only unmarried victims. Reed v. State, 264 Ga. App. 466, 448 S.E.2d 189 (1994).

Because the defendant never requested access to the materials seized from the defendant's home for the purpose of preparing for trial, wherein the defendant was charged with sexual exploitation of children, in violation of O.C.G.A. § 16-12-100(b)(8), the defendant lacked standing to assert that O.C.G.A. § 16-12-100(d) was unconstitutional due to the exemptions allowed therein; the defendant was unable to show that the statute adversely impacted the defendant's rights. Tennille v. State, 279 Ga. 884, 622 S.E.2d 346 (2005).

Despite being time-barred, the defendant's constitutional challenge to O.C.G.A. § 16-12-100(d) lacked merit as the photographs at issue were made available by the state for inspection, the defense was offered a mirror image of defendant's hard drive, and counsel never requested a copy of defendant's digital camera card. Daly v. State, 285 Ga. App. 808, 648 S.E.2d 90 (2007), cert. denied, 2007 Ga. LEXIS 659 (Ga. 2007), cert. denied, 553 U.S. 1039, 128 S. Ct. 2441, 171 L. Ed. 2d 241 (2008).

- Statutory term "depict a minor" must be understood as limited to any photographic representation that was made of a human being who at that time was a minor and was "engaged in any sexually explicit conduct," as defined by O.C.G.A. § 16-12-100. Aman v. State, 261 Ga. 669, 409 S.E.2d 645 (1991).

Terms genitals and pubic area in O.C.G.A. § 16-12-100(a)(4)(D), as to exploitation of children, do not include buttocks or breasts. Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304 (2015).

- Motion to quash charge of sexual exploitation of children was error as "visual medium," as used in O.C.G.A. § 16-12-100, encompassed digital images of child pornography sent via computer and was thus prohibited conduct. State v. Brown, 250 Ga. App. 376, 551 S.E.2d 773 (2001).

- Plain language of O.C.G.A. § 16-12-100(b)(8), when read in the statute's entirety, allowed for a charge and conviction on each and every image the defendant possessed. State v. Williams, 347 Ga. App. 183, 818 S.E.2d 256 (2018), aff'd, 307 Ga. 778, 838 S.E.2d 235 (2020).

- Georgia Supreme Court concludes that O.C.G.A. § 16-12-100(b) was unambiguous and permitted only one prosecution and conviction for the simultaneous possession of multiple items of visual media. The offense was the possession of any prohibited "visual medium" at all, whether one or 100. Edvalson v. State, Ga. , S.E.2d (Sept. 28, 2020).

- Evidence was sufficient to prove venue was proper in Coweta County for purposes of the sexual exploitation charge because the defendant possessed the image of the victim's genitals in Coweta County as the defendant lived in Coweta County during the time the image was on the defendant's cellular phone. Boyd v. State, 351 Ga. App. 469, 829 S.E.2d 163 (2019).

- To be entitled to immunity under O.C.G.A. § 16-12-100(d), two requirements must be satisfied. First, the person asserting immunity must be a member of a law enforcement or prosecution agency. Second, the otherwise illegal conduct must have occurred when that person was acting in their official capacity to investigate and/or prosecute a violation of O.C.G.A. § 16-12-100. Maddox v. State, 346 Ga. App. 674, 816 S.E.2d 796 (2018).

Application

Probable cause.

- Deputy sheriff was entitled to qualified immunity on the arrestee's 42 U.S.C. § 1983 Fourth Amendment claim because the deputy sheriff had at least arguable probable cause to arrest the arrestee because the deputy sheriff applied for an arrest warrant for sexual exploitation of children, O.C.G.A. § 16-12-100; when the totality of the circumstances was viewed objectively, a reasonable officer in the deputy sheriff's position could have believed that the deputy had probable cause to arrest the arrestee based on: (1) the investigations conducted by both the school technology specialists and the sheriff's office specialist; (2) the images found on the computers used by the arrestee; (3) an interview with the school technology staff; and (4) the doctor's statement that some of the individuals depicted in the images appeared to be under the age of eighteen years. Rockel v. Watkins, F. Supp. 2d (M.D. Ga. Nov. 24, 2009).

Trial court did not err in denying the defendant's motion to suppress evidence seized from a search warrant authorizing entry into the defendant's home because the affidavit submitted in support of the warrant provided a sufficient basis for the magistrate to make a practical, commonsense decision that there was a fair probability that evidence of sexual exploitation of children would be found at the defendant's residence; the National Center for Missing and Exploited Children forwarded the information it received from a security specialist employed by the host of the website to the Georgia Bureau of Investigation (GBI), and the affidavit of a special agent with the GBI set forth facts that showed both the reliability and basis of knowledge of the specialist. James v. State, 312 Ga. App. 130, 717 S.E.2d 713 (2011), cert. denied, No. S12C0347, 2012 Ga. LEXIS 227 (Ga. 2012).

- There was no fatal variance between the indictment and the evidence based on the fact that the indictment alleged that the defendant knowingly possessed a photograph depicting a minor engaged in sexually explicit contact while the evidence showed it was a digital image as the indictment sufficiently apprised the defendant of the charge. Moon v. State, 335 Ga. App. 642, 782 S.E.2d 699 (2016).

- Trial court properly refused to merge a defendant's convictions as the offenses of aggravated child molestation and sexual exploitation of children were separate legal offenses and did not merge as a matter of law; the offenses did not merge as a matter of fact as: (1) the defendant was charged with five separate acts of aggravated child molestation, each of which was based on different facts; (2) the 35 convictions of sexual exploitation of children were based on the distinct actions of the defendant creating 32 separate sexually explicit photographic or video images and distributing three other sexually explicit images over the Internet; and (3) the defendant's creation of sexually explicit images of several of the sex acts that constituted the basis for the aggravated child molestation charges were separate actions warranting a separate charge and conviction as the offenses of aggravated child molestation were completed separately and independently of the defendant photographing or videotaping the acts. Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126 (2006).

- Trial court properly denied the defendant's motion to suppress identifying Internet subscriber information obtained by police pursuant to an administrative subpoena issued under O.C.G.A. § 16-9-108(a) because the defendant lacked standing to challenge the search of the defendant's Internet provider (IP) for identifying information since O.C.G.A. § 16-9-109(b) did not grant a defendant a reasonable expectation of privacy in subscriber information voluntarily conveyed to the IP. Courtney v. State, 340 Ga. App. 496, 797 S.E.2d 496 (2017).

- Warrantless seizure of two computers in a defendant's home was authorized by exigent circumstances, specifically, the objectively reasonable concern that the defendant threatened to destroy computer images of child pornography, images that were vulnerable to quick destruction, irreplaceable, and essential to proving that a crime had been committed. Hesrick v. State, 308 Ga. App. 363, 707 S.E.2d 574 (2011).

- Surreptitious photos of the genitals of clothed children, visible due to the angle of the camera and the children's open legs, was not within the precise language of O.C.G.A. § 16-12-100(b)(5). Craft v. State, 252 Ga. App. 834, 558 S.E.2d 18 (2001), cert. denied, 537 U.S. 1025, 123 S. Ct. 537, 154 L. Ed. 2d 437 (2002).

Admission of photographs showing the victims naked in a bath tub was upheld since the photographs were relevant to show that defendant's interest in the victims was sexual in nature. Phillips v. State, 269 Ga. App. 619, 604 S.E.2d 520 (2004).

- Evidence was sufficient to convict the defendant of five counts of sexual exploitation of children beyond a reasonable doubt because the evidence was more than sufficient to exclude every reasonable hypothesis that someone other than the defendant possessed a USB drive when the defendant stayed at a hotel since a forensic computer specialist testified that the date and time imprinted on a photograph taken from a digital camera was recorded from the digital camera's date and time feature; given the specialist's testimony, coupled with the fact that the defendant possessed several computers, a digital camera, and another USB drive in the defendant's home in Arkansas, a rational trier of fact could find that the defendant took defendant's own photograph from the defendant's home in Arkansas with the defendant's digital camera, saved those photographs to the USB drive, took the USB drive with the defendant to Georgia, where the defendant stayed at the hotel, and inadvertently left the USB drive on the fifth floor of the hotel, and the jury could also conclude that the defendant knowingly possessed material depicting minors engaged in sexually explicit conduct in light of evidence that sexually explicit images of children were saved to the USB drive within seconds of the time two photographs of the defendant were saved to such drive. Hunt v. State, 303 Ga. App. 855, 695 S.E.2d 53 (2010).

Admission of a videotape of defendant masturbating and sexually explicit magazines was upheld because they showed defendant's lustful disposition toward the unlawful sexual activity with which defendant was charged. Phillips v. State, 269 Ga. App. 619, 604 S.E.2d 520 (2004).

Trial court did not err in allowing the jury to view videos of child pornography that were allegedly downloaded by the defendant because the videos presented were clearly directly relevant to the specific offenses of sexual exploitation charged and the trial court limited the videos' prejudicial impact by significantly restricting the state's use of the videos that were themselves the subject of the charges against the defendant. Beaver v. State, 330 Ga. App. 496, 767 S.E.2d 503 (2014).

- Defendant's conviction for sexual exploitation of children in violation of O.C.G.A. § 16-12-100(b)(8) was affirmed because the jury viewed DVDs of the movie files found on the defendant's computer and in the defendant's home, which depicted small children, who were "clearly prepubescent" and was authorized to conclude that the children were under the age of 18. Henderson v. State, 320 Ga. App. 553, 740 S.E.2d 280 (2013).

- Indictment charging defendant with attempted sexual exploitation of children properly alleged that defendant took a substantial step toward the commission of the crime by making arrangements to meet the victim for the purpose of violating the statute and by proceeding to the meeting place. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).

Trial court did not err in concluding that the victim, who subsequently married the defendant, could be compelled to testify against the defendant with regard to the charge of sexual exploitation of children because that charge qualified as a crime against the person of a minor based upon the public policy expressed in former O.C.G.A. § 24-9-23(b) (see now O.C.G.A. § 24-5-503), the particular pictures involved in the case, and the specific subsection with which the defendant was charged, O.C.G.A. § 16-12-100(b)(8); the pictures in the defendant's possession showed the victim personally engaged in sexually explicit conduct. Peck v. State, 300 Ga. App. 375, 685 S.E.2d 367 (2009).

- Defendants' convictions of sexual exploitation of children were supported by evidence that they had taken turns photographing each other as they engaged in sexual intercourse with the victim, who was under 18 years of age at the time, and it was not necessary for the state either to produce the photographs in question or otherwise to prove that the camera had been working properly. Moua v. State, 200 Ga. App. 49, 406 S.E.2d 557 (1991).

Defendant was properly convicted of four counts of sexual exploitation of children where there was evidence that defendant's minor daughter had shaved her pubic area and the position of her body in photographs presented a question for jury determination as to whether the photographs depicted a lewd exhibition of the minor's pubic area. These facts constituted adequate evidence to present for jury determination whether defendant's exhibition of photographs was accomplished with intent to sell. Unden v. State, 218 Ga. App. 463, 462 S.E.2d 408 (1995).

Evidence that the minor did not drive a motor vehicle in defendant's presence, and that defendant was aware of the girlish handwriting and phraseology displayed on a greeting card she sent to him and of her appearance and demeanor was sufficient to prove that defendant knew the minor was under 18 years of age. Phagan v. State, 268 Ga. 272, 486 S.E.2d 876 (1997), cert. denied, 522 U.S. 1128, 118 S. Ct. 1079, 140 L. Ed. 2d 136 (1998).

Evidence was sufficient to convict the defendant on two counts of sexual exploitation of children for having taken nude photographs of defendant's two sons. Loveless v. State, 245 Ga. App. 555, 538 S.E.2d 464 (2000).

Evidence sufficiently supported defendant's conviction for 12 counts of sexual exploitation of children, in violation of O.C.G.A. § 16-12-100(b)(8), because a consent search led to discovery of home-produced photographs of nude young females on defendant's computer; whether evidence of equal access was sufficient to rebut an inference of possession was a matter for the trier of fact. Tennille v. State, 279 Ga. 884, 622 S.E.2d 346 (2005).

Defendant's convictions for aggravated child molestation and sexual exploitation of children were supported by the evidence based on the testimony of two minor victims that the victims engaged in numerous acts of oral and anal sex with the defendant, their identification of themselves in numerous photographs and several videos taken from the defendant's computer files, which depicted the victims engaging in sexually explicit conduct, and the sexually explicit photographs and video recordings. Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126 (2006).

Evidence was sufficient to convict a defendant of sexually exploiting children (O.C.G.A. § 16-12-100(b)(8)) as pictures of the defendant and minors engaged in sexually explicit conduct were on a compact disk found in a vehicle in which the defendant had been riding, and some of the same pornographic images were on a computer disk found in the defendant's home. Thus, the state did not rely solely on the defendant's ownership of the home to prove possession of the pornography. Clewis v. State, 293 Ga. App. 412, 667 S.E.2d 158 (2008).

Evidence was sufficient to sustain a defendant's conviction for knowing possession of child pornography under O.C.G.A. § 16-12-100(b)(8) because a technician who reviewed a CD and computer from the defendant's home testified that somebody had deliberately copied sexually explicit images to the CD, and police recovered the defendant's thumb print from the CD containing child pornography. Dickerson v. State, 304 Ga. App. 762, 697 S.E.2d 874 (2010).

Evidence was sufficient to convict a defendant for the sexual exploitation of children as the evidence indicated that files containing child pornography had not come to be on the defendant's computer in some passive way, and the defendant admitted that the defendant shared files on the Internet using certain file sharing programs, including the program used to download the images of child pornography. Haynes v. State, 317 Ga. App. 400, 731 S.E.2d 83 (2012).

Defendant's conviction on 21 counts of sexual exploitation of a minor, in violation of O.C.G.A. § 16-12-100(b)(8), was supported by sufficient evidence based on the photographs on a compact disc containing pictures of young girls exhibited nude on stage in the lewd exhibition of the girls' genitals. Scarborough v. State, 317 Ga. App. 523, 731 S.E.2d 396 (2012).

When an investigator searched the recreational vehicle pursuant to the warrant and found a defendant's computer, which was the same computer which the investigator's Internet investigation showed was sharing child pornography files, and contained the video files used as evidence, the evidence was sufficient to find the defendant committed sexual exploitation of children in violation of O.C.G.A. § 16-12-100(b)(8). Hines v. State, 317 Ga. App. 541, 731 S.E.2d 782 (2012).

Evidence was sufficient to convict the defendant of 20 counts of sexual exploitation of children because the defendant knowingly possessed or controlled pornographic images of children as the child pornography images found in the cache folder on the defendant's computer had all been intentionally accessed on the date the officer observed the defendant with the computer; the officer observed the images on the defendant's computer and watched as the defendant attempted to close and minimize the pornographic images of children; and the images were not generated in a passive way in pop-up windows. Sorg v. State, 324 Ga. App. 595, 751 S.E.2d 196 (2013).

Evidence was sufficient to convict the defendant of 15 counts of sexual exploitation of children based on the child pornography found on a girlfriend's computer because a Georgia Bureau of Investigation expert in computer forensics explained that there was no evidence that a virus had downloaded any of the illegal files, and that there was no evidence that anyone had hacked into the computer; the defendant's mother, the defendant's girlfriend, and the defendant's girlfriend's mother and brothers testified that they did not download the illegal files onto the computer; and the downloads began just one month after the defendant moved in with the girlfriend and only on days when the defendant was not incarcerated. Beaver v. State, 330 Ga. App. 496, 767 S.E.2d 503 (2014).

Evidence that images of the defendant's step-daughter were found on the defendant's computer and hidden on the defendant's phone was sufficient to prove that the defendant knowingly possessed the images. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131 (2016).

Evidence tying the defendant to the flash drive containing the child pornography images, including that the evidence was found in the defendant's garage in the same location as the defendant's cell phone, was sufficient to support the defendant's conviction for 14 counts of sexual exploitation of children. Nix v. State, 354 Ga. App. 47, 839 S.E.2d 687 (2020).

- Sufficient evidence supported the appellant's conviction for exploitation of children based upon all of the text messages and other evidence adduced at trial that the appellant sought nude photographs that would show all the intimate areas of the victims' bodies, including their genitals and pubic areas and that the appellant's intended motivation was to obtain photographs of the victims engaged in sexually explicit conduct as that phrase is defined by the statute. Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304 (2015).

Conviction for conspiring to commit sexual exploitation of a child through possessing photographs of the lewd exhibition of a child's genitals was supported by testimony that the defendant conspired with another to generate the photos for use in an escort business's Craiglist ads as corroborated by the victim in the photos. Ferguson v. State, 335 Ga. App. 862, 783 S.E.2d 380 (2016).

- Evidence was sufficient to sustain the defendant's 20 convictions for sexual exploitation of children because the child pornography images on the defendant's computer had all been intentionally accessed on the date the officer observed the defendant viewing the images on the defendant's computer, and the images were not pop-up images that the defendant had not intentionally viewed. Sorg v. State, 324 Ga. App. 595, 751 S.E.2d 196 (2013).

- Because a case charged in two indictments, one for child molestation and aggravated sexual battery against a defendant's daughter and one for the defendant's possession of digital and print materials depicting a minor engaged in sexually explicit conduct in violation of O.C.G.A. § 16-12-100(b)(8), was not so complex as to impair the jury's ability to distinguish the evidence and apply the law intelligently to the counts as joined, the trial court did not abuse the court's discretion in denying the defendant's motion to sever. Dickerson v. State, 304 Ga. App. 762, 697 S.E.2d 874 (2010).

Evidence was insufficient to warrant a conviction under O.C.G.A. § 16-12-100(b)(8) since there was no evidence that the defendant, who entered a bedroom while the codefendant photographed young girls in the nude, knowingly possessed or controlled the picture which the codefendant took of the girls. Conejo v. State, 189 Ga. App. 14, 374 S.E.2d 826 (1988).

Because the mere existence of pornographic images in the cache files of an individual's computer was insufficient to constitute knowing possession of those materials, absent proof that the individual either: (1) took some affirmative act to save or download those images to the computer; or (2) had knowledge that the computer automatically saved those files, the evidence could not support the defendant's convictions for knowing possession of child pornography under O.C.G.A. § 16-12-100(b)(8). Barton v. State, 286 Ga. App. 49, 648 S.E.2d 660 (2007), cert. denied, No. S07C1655, 2007 Ga. LEXIS 622 (Ga. 2007).

Defendant's conviction for sexual exploitation as to an unrelated victim had to be reversed because there was no evidence that the defendant knew that the image, taken by the subject of the photo when the subject was 17 years old, depicted a minor. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131 (2016).

- Photographs of a minor child or children who are wearing short pants or swim trunks, sitting down with legs open with the child's genitals partially or completely observable; nor photos of children playing outside in various stages of nudity because they were swimming; nor photographs depicting sleeping minor children whose genitals are partially exposed; nor a photo of a partially nude minor child climbing a wall constitute a violation of O.C.G.A. § 16-12-100. Craft v. State, 252 Ga. App. 834, 558 S.E.2d 18 (2001), cert. denied, 537 U.S. 1025, 123 S. Ct. 537, 154 L. Ed. 2d 437 (2002).

When the state failed to present evidence that defendant used the victim for the purpose of producing any visual medium depicting any sexually explicit conduct, the evidence was insufficient to support conviction for sexual exploitation. Phillips v. State, 269 Ga. App. 619, 604 S.E.2d 520 (2004).

State failed to establish 10 of 12 counts of misdemeanor sexual exploitation of children, O.C.G.A. § 16-12-100(b)(8), because the individuals in the photos were either not fully visible or were so mature that more evidence was required to show that the individuals were under 18, and thus the state failed to establish that the photos possessed by defendant depicted minors; the evidence was sufficient on the two remaining counts for the jury to find that defendant possessed the computer disks containing the photos, and the fact of the subjects' minority was evident without expert testimony or other evidence. Abernathy v. State, 278 Ga. App. 574, 630 S.E.2d 421 (2006).

Evidence was insufficient to show that the defendant knew that the victim was under 18 years of age; the victim was not on trial, the defendant testified that the victim told the defendant that the victim was 22 years old, and photos showing the defendant and the victim did not show beyond a reasonable doubt that the victim was under age. Berry v. State, 281 Ga. App. 424, 636 S.E.2d 150 (2006).

Because the state failed to prove that the defendant ever possessed or controlled the pornographic images on the tablet at issue, the evidence was not sufficient to support the defendant's conviction for sexual exploitation of a child. Lindley v. State, 345 Ga. App. 637, 814 S.E.2d 784 (2018).

- Court is not constrained to view as a whole evidence pertaining to the sexual portrayal of children. Craft v. State, 252 Ga. App. 834, 558 S.E.2d 18 (2001), cert. denied, 537 U.S. 1025, 123 S. Ct. 537, 154 L. Ed. 2d 437 (2002).

- Conviction for enticement of a child for indecent purposes under O.C.G.A. § 16-6-5(a) need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted, but instead is based upon some evidence that an act of indecency or child molestation was the intended motivation for the enticement. Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304 (2015).

- In a civil premises liability action arising from a sexual assault on a minor in which a manager sought production of a videotape of the assault made by the assailants, O.C.G.A. § 16-12-100(b)(5) did not criminalize the act of producing the tape in response to a court order or a request for discovery, and the trial court erred in holding otherwise. Alexander Props. Group, Inc. v. Doe, 280 Ga. 306, 626 S.E.2d 497 (2006).

Jury Instructions

Charge to jury.

- In a prosecution for sexual exploitation of children, the trial court's failure to include in the court's charge the statutory definition of "sexually explicit conduct" was not error. Rice v. State, 243 Ga. App. 143, 531 S.E.2d 182 (2000).

- Trial court properly denied the appellant's motion for a new trial because the appellant failed to prove that the trial court committed any error in the court's fashioning of a supplemental instruction to the jury regarding the definition of "entice" and, thus, the first prong of the test for plain error was not satisfied and it was in the trial court's discretion in declining the juror's request for access to a dictionary during deliberations. Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304 (2015).

Sentencing

Sentence term of 220 years to serve upheld but chemical castration not authorized.

- Trial court properly sentenced defendant to 220 years to serve, followed by 20 years of probation, on 24 counts of sexual exploitation of a child as such a sentence was within the statutory parameters and did not shock the appellate court's conscious in light of the crimes committed and, in fact, defendant was actually spared serving the maximum amount of prison time authorized by O.C.G.A. § 16-12-100(g)(1). However, the trial court erred by ordering defendant to undergo chemical castration under O.C.G.A. § 16-6-4(d)(2) since such punishment was only for defendants convicted of child molestation. Bennett v. State, 292 Ga. App. 382, 665 S.E.2d 365 (2008).

- Trial court properly refused to deviate from the mandatory minimum sentence for child molestation under O.C.G.A. § 17-10-6.2(c)(1)(C) because the court found the defendant's conviction for sexual exploitation of children was a relevant similar transaction and the phrase relevant similar transaction under § 17-10-6.2(c)(1)(C) included a conviction for a sexual offense charged within the same indictment as the offense for which a deviation from the mandatory minimum sentence was considered. Evans v. State, 334 Ga. App. 104, 778 S.E.2d 360 (2015), aff'd, 300 Ga. 271, 794 S.E.2d 40 (Ga. 2016).

- Trial court erred in determining that the court was without discretion to deviate from the minimum sentencing requirements of O.C.G.A. § 17-10-6.2(b), and the court of appeals erred in affirming that ruling because the defendants were charged with possession of material in violation of O.C.G.A. § 16-12-100(b)(8) and, therefore, it would have to be shown that the child victims in the images that were stored in the defendants' computers were physically restrained at the same time that the defendants possessed the offending material in order for O.C.G.A. § 17-10-6.2(c)(1)(F) to exclude the trial court from having the sentencing discretion set forth in O.C.G.A. § 17-10-6.2(c)(1), but no such evidence existed; O.C.G.A. § 17-10-6.2(c)(1)(F) precludes the trial court from exercising sentencing discretion when the victim was physically restrained during the commission of the offense, and the use of the words "during the commission of the offense" in O.C.G.A. § 17-10-6.2(c)(1)(F) must be given effect. Hedden v. State, 288 Ga. 871, 708 S.E.2d 287 (2011).

- State's contention that the defendant's previous acts of viewing pornography on a cell phone app should have been treated as relevant similar transactions so as to divest the trial court of the court's discretion to downwardly deviate from the mandatory minimum sentence was rejected because the state presented scant evidence about the defendant's previous conduct other than to show when the defendant first started using the app and the trial court gave sound reasons why the court rejected the state's assertion. State v. McCauley, 353 Ga. App. 94, 834 S.E.2d 567 (2019).

- Defendant charged with possession of child pornography was not entitled to pretrial habeas corpus based on the trial court's modification of the defendant's conditions of bond to prevent the defendant from having access to children, images of children, and the Internet for the purpose of obtaining child pornography. Edvalson v. State, 298 Ga. 626, 783 S.E.2d 603 (2016).

Cited in State v. Jones, 283 Ga. App. 539, 642 S.E.2d 183 (2007); Matiatos v. State, 301 Ga. App. 573, 688 S.E.2d 385 (2009).

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of statutes regulating sexual performance by child, 21 A.L.R.4th 239, 42 A.L.R.5th 291.

Admissibility of expert testimony as to criminal defendant's propensity toward sexual deviation, 42 A.L.R.4th 937.

Validity, construction, and application of state statutes prohibiting child luring as applied to cases involving luring of child by means of verbal or other nonelectronic communications, 33 A.L.R.6th 373.

Construction and application of United States Sentencing Guideline § 2G2.1 et seq., pertaining to child pornography, 145 A.L.R. Fed. 481.