2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 6 - Sexual Offenses
§ 16-6-5. Enticing a Child for Indecent Purposes
- 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.
- Except as provided in subsection (c) of this Code section, a person convicted of the offense of enticing a child for indecent purposes shall be punished by imprisonment for not less than ten nor more than 30 years. Any person convicted under this Code section of the offense of enticing a child for indecent purposes shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
- If the victim is at least 14 but less than 16 years of age and the person convicted of enticing a child for indecent purposes is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.
(Ga. L. 1950, p. 387, § 2; Ga. L. 1953, Nov.-Dec. Sess., p. 408, § 2; Code 1933, § 26-2020, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1984, p. 1495, § 2; Ga. L. 1992, p. 6, § 16; Ga. L. 1992, p. 2131, § 1; Ga. L. 1995, p. 957, § 5; Ga. L. 2006, p. 379, § 12/HB 1059.)Cross references.
- Actions for childhood sexual abuse, § 9-3-33.1.
Computer pornography and child exploitation prevention, § 16-12-100.2.
Visitation with minors by convicted sexual offenders while imprisoned, § 42-5-56.Editor's notes.
- Ga. L. 1992, p. 2131, § 2, not codified by the General Assembly, provides: "The amendment or repeal and reenactment of subsection (b) of Code Section 16-6-5 of the Official Code of Georgia Annotated by Section 1 of this Act shall not affect or abate the status as a crime of any act which occurred prior to the effective date of this Act [April 17, 1992] nor shall the prosecution of such crime be affected by the enactment of this Act."
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. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."Law reviews.
- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For note, "Pedophilia, Exhibitionism, and Voyeurism: Legal Problems in the Deviant Society," see 4 Ga. L. Rev. 149 (1969). For comment, "Civil Contempt and Child Sexual Abuse Allegations: A Modern Solomon's Choice?," see 40 Emory L.J. 203 (1991).JUDICIAL DECISIONS
- General Consideration
- Procedural Matters
- Jury Instructions
Section not violative of due process.
- Ga. L. 1953, Nov.-Dec. Sess., p. 408, § 2 (see now O.C.G.A. § 16-6-5) did not violate the due process clause of U.S. Const., amend. 14 or Ga. Const. 1976, Art. I, Sec. I, Para. I (see Ga. Const. 1983, Art. I, Sec. I, Para. I) for failing to define in exact words what constitutes the conduct made punishable. Millhollan v. State, 221 Ga. 165, 143 S.E.2d 730 (1965).Section not objectionable because of plurality of subject matter.
- Since the subject of Ga. L. 1953, Nov.-Dec. Sess., p. 408, § 2 (see now O.C.G.A. § 16-6-5) is the taking or attempting to take immoral, improper, or indecent liberties with children, and all of the provisions of that section naturally connect and reasonably relate to that subject, it does not violate Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see Ga. Const. 1983, Art. III, Sec. V, Para. III). Millhollan v. State, 221 Ga. 165, 143 S.E.2d 730 (1965).Statutory scheme to protect children under 14 (now 16).
- Former Code 1933, §§ 26-2018 through 26-2020 (see now O.C.G.A. §§ 16-6-3 through16-6-5) provide a general statutory scheme giving protection to both male and female children under the age of 14 (now 16), regardless of the offender's gender, and thus are not invalid as depriving this defendant of equal protection of the law. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).Relationship to other law.
- In that defendant's prior conviction under O.C.G.A. § 16-6-5 was founded upon defendant's discussions of illicit sexual acts with a minor, such actions necessarily related to "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor" under 18 U.S.C. § 2252A(b)(1) for purposes of sentence enhancement. United States v. McGarity, 669 F.3d 1218 (11th Cir. 2012).
Phrase "indecent acts" is not so vague as to violate due process. Howell v. State, 172 Ga. App. 805, 324 S.E.2d 754 (1984).Consent irrelevant.
- Child's consent would not vitiate a conviction for enticing a child for indecent purposes. Coker v. State, 164 Ga. App. 493, 297 S.E.2d 68 (1982).
Cited in Butler v. State, 132 Ga. App. 750, 209 S.E.2d 28 (1974); Sanders v. State, 145 Ga. App. 73, 243 S.E.2d 274 (1978); Long v. State, 150 Ga. App. 796, 258 S.E.2d 603 (1979); Roman v. State, 155 Ga. App. 355, 271 S.E.2d 21 (1980); American Booksellers Ass'n v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984); Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368, 373 S.E.2d 23 (1988); Daniel v. State, 194 Ga. App. 495, 391 S.E.2d 128 (1990); Allstate Ins. Co. v. Jarvis, 195 Ga. App. 335, 393 S.E.2d 489 (1990); Emanuel v. State, 196 Ga. App. 449, 396 S.E.2d 83 (1990); Allen v. State, 242 Ga. App. 367, 533 S.E.2d 401 (2000); Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015); Finnan v. State, 291 Ga. App. 486, 662 S.E.2d 269 (2008); Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009); Bolton v. State, 310 Ga. App. 801, 714 S.E.2d 377 (2011); Calhoun v. State, 327 Ga. App. 683, 761 S.E.2d 91 (2014); Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304 (2015).
Various ways to violate section may be joined in one count in same indictment.
- Former Ga. L. 1953, Nov.-Dec. Sess., p. 408, § 2 (see now O.C.G.A. § 16-6-5) forbidding the taking of immoral or improper or indecent liberties with a child provides several ways in which it may be violated, not repugnant to each other, and they may be joined in one count in the same indictment. Millhollan v. State, 221 Ga. 165, 143 S.E.2d 730 (1965).Sufficiency of indictment.
- Trial court erred in granting the defendant's specific demurrer to an indictment charging the defendant with criminal attempt to entice a child for indecent purposes in violation of O.C.G.A. §§ 16-4-1 and16-6-5(a) because the indictment contained the elements of the crime, informed the defendant of the charges against the defendant, and was specific enough to protect the defendant from double jeopardy, and the language in the indictment tracked the legislative language used in and cited directly to § 16-6-5(a); the crime charged in and of itself alerted the defendant to the fact that the defendant was being accused of acting with the intent of engaging in illicit sexual conduct with a minor, and because the defendant was indicted with criminal attempt to commit the crime of enticing a child for indecent purposes, by definition, the defendant fell short of the crime's commission, and any evidence of defendant's criminal intent was necessarily implicit. State v. Marshall, 304 Ga. App. 865, 698 S.E.2d 337 (2010).
Defendant failed to show that trial counsel's performance was deficient for not filing a demurrer to the count of the indictment charging the defendant with enticing a child for indecent purposes in violation of O.C.G.A. § 16-6-5(a) because the indictment alleged that the defendant enticed the victim to a place and penetrated the victim's vagina with the defendant's penis. Burke v. State, 316 Ga. App. 386, 729 S.E.2d 531 (2012).
Indictment and verdict against the defendant were not contrary to law because there was no actual victim and the victim described in the complaint, a fourteen-year-old female named "Sara," was a fiction created by law enforcement agents, and because O.C.G.A. § 16-12-100.2(d) expressly provides that the sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation under § 16-12-100.2 shall not constitute a defense. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436 (2014).Motion to suppress.
- Trial court erroneously suppressed the statements given by the defendant to law enforcement, because, given the totality of the circumstances apparent from the record, the defendant: (1) spoke clearly; (2) did not appear to be under the influence of alcohol or drugs; (3) appeared to understand what was read; (4) was not threatened or coerced in any way; (5) appeared very calm; (6) was not promised anything by police in exchange for defendant's cooperation; (7) did not appear to have any mental issues; (8) had only been detained for approximately 20 minutes before defendant was Mirandized; and (9) asked the investigator to come back to speak with defendant after a brief interruption in the interview; the mere fact that there was no written Miranda waiver or electronic recording of the same did not render said waiver involuntary. State v. Hardy, 281 Ga. App. 365, 636 S.E.2d 36 (2006).Venue.
- There was sufficient evidence of venue to support convictions for enticing child where it was shown that the child was "enticed" in the county where the defendants were prosecuted, but the alleged act of indecency or child molestation occurred in another county. Abreu v. State, 206 Ga. App. 361, 425 S.E.2d 331 (1992).Application
Based on the allegation that the child enticement was accomplished through an online chat service, venue was not limited to the defendant's physical location at the time the defendant used the service; the state had to prove only that the enticement occurred in White County, and the investigator testified that the investigator was located in White County when the investigator posed as a child to communicate online with the defendant. Adams v. State, 312 Ga. App. 570, 718 S.E.2d 899 (2011), cert. denied, No. S12C0500, 2012 Ga. LEXIS 263 (Ga. 2012).Enticement and intended motivation must be shown.
- Crime of enticing a child for indecent purposes requires the showing of a joint operation of the act of enticing a child and the intention to commit acts of indecency or child molestation. Lasseter v. State, 197 Ga. App. 498, 399 S.E.2d 85 (1990).
Although a conviction under O.C.G.A. § 16-6-5 need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted, a conviction must nevertheless be based upon some evidence that an act of indecency or child molestation was the intended motivation for the enticement. Lasseter v. State, 197 Ga. App. 498, 399 S.E.2d 85 (1990).
Defendant's convictions for criminal attempt of enticing a child for indecent purposes were reversed because the state failed to present any evidence to show that an act of indecency or child molestation was the intended motivation behind the defendant's apparent attempts to entice the victims into the defendant's vehicle when the defendant drove by the alleged victims or asked one to put their bike in the truck. Phillips v. State, 354 Ga. App. 88, 840 S.E.2d 165 (2020).Asportation an element.
- Enticing a child for indecent purposes, unlike the offense of aggravated sodomy, includes an element of asportation. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981); Thompson v. State, 186 Ga. App. 471, 367 S.E.2d 320 (1988).
After the defendant showed a pornographic film to children and threatened the children if the children left or attempted to leave during the movie, the requirement of asportation in the crime of enticing a child for indecent purposes was not satisfied since there was no evidence that the defendant caused the children to move towards the place where the children would view the movie. Bragg v. State, 217 Ga. App. 342, 457 S.E.2d 262 (1995).
Although the defendant merely attempted to pull a child towards the defendant, any asportation, however slight, was sufficient to show the taking element of enticing a child for indecent purposes. Hicks v. State, 254 Ga. App. 814, 563 S.E.2d 897 (2002).Moving family sufficed for asportation.
- Asportation element of enticement of a child for indecent purposes, O.C.G.A. § 16-6-5(a), was based on the defendant's moving the defendant's family from one house in Clayton County to another and taking the child with them, and was supported by the evidence. Harris v. State, 333 Ga. App. 118, 775 S.E.2d 602 (2015).Taking may involve force, enticement, or persuasion.
- The "asportation" element of the offense is satisfied whether the "taking" involves physical force, enticement, or persuasion. Cimildoro v. State, 259 Ga. 788, 387 S.E.2d 335 (1990).
Evidence supporting the conclusion that defendant enticed, lured or convinced the victim to go with defendant across a tool shed and onto a board and later into a bedroom for indecent purposes was sufficient to satisfy the "taking" element of the offense. Cimildoro v. State, 259 Ga. 788, 387 S.E.2d 335 (1990).
When one of two victims testified that they were playing in a house, and it was defendant's idea to go to defendant's workshop and defendant personally testified that defendant told the victims to go to the workshop because defendant "didn't want any interruptions," the asportation element was proved. Smith v. State, 210 Ga. App. 634, 437 S.E.2d 333 (1993).
Asportation element of enticing a child for indecent purposes under O.C.G.A. § 16-6-5(a) was met by the defendant's sending suggestive text messages to a 15-year-old friend of the defendant's daughter and offering the friend $50 to have sex with the defendant. The element of asportation was satisfied whether the taking involved physical force, enticement, or persuasion. Kelley v. State, 301 Ga. App. 43, 686 S.E.2d 810 (2009).Evidence of asportation.
- Requirement that evidence of asportation be proven was satisfied by the evidence that defendant chased the victim around the bus. Sims v. State, 212 Ga. App. 426, 442 S.E.2d 292 (1994).
Defendant's conviction for enticing a child for indecent purposes was supported by sufficient evidence as the evidence authorized the jury to find that defendant enticed the 15-year-old victim into an apartment under the false pretense that defendant needed to get something there but that the real reason was to engage in sexual contact based on defendant restraining the victim and attempting to engage in sexual contact. The evidence satisfied the element of asportation based on the evidence that defendant lured the victim to the apartment. Moore v. State, 291 Ga. App. 270, 661 S.E.2d 868 (2008).When there is ample evidence of asportation, evidence of enticement is immaterial.
- When there is ample evidence of defendant's taking the victim in defendant's motor vehicle to a place for purpose of indecent acts, it is immaterial whether there is also evidence of defendant's enticing, inviting, or persuading the victim to go with the defendant. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981).
Pushing the victim a distance of approximately 65 paces was amply sufficient to satisfy the asportation element of O.C.G.A. § 16-6-5. Morris v. State, 179 Ga. App. 228, 345 S.E.2d 686 (1986).
Inquiry into victim's past sexual experiences was properly refused, even where a physician testified that in examining the victim it was obvious the victim had been sexually active. Worth v. State, 183 Ga. App. 68, 358 S.E.2d 251 (1987).Asking defendant about prior arrests.
- Permitting the prosecutor to ask defendant if defendant had been arrested on a sex charge subsequent to the incident in question at defendant's trial for child molestation and enticing a child for indecent purposes was reversible error, where the sole issue in the case was the credibility of defendant and the alleged victim. Thomas v. State, 178 Ga. App. 674, 344 S.E.2d 496 (1986).Evidence of similar prior incident admissible.
- When defendant appealed defendant's conviction on multiple counts of violating O.C.G.A. §§ 16-6-3,16-6-4,16-6-5, and16-6-5.1, defendant unsuccessfully argued that the trial court erred in admitting two similar transactions. As to the first similar transaction, defendant induced any alleged error in that defendant's own counsel was the first to elicit the testimony of that transaction, and as to the second transaction, the trial court did not clearly err in finding that, because it involved a sexual act by defendant in defendant's counseling office with a female whom defendant was counseling, it was sufficiently similar to one of the crimes at issue which alleged a sexual act by defendant in defendant's counseling office with a female. Evans v. State, 300 Ga. App. 180, 684 S.E.2d 311 (2009), cert. denied, No. S10C0215, 2010 Ga. LEXIS 304 (Ga. 2010).
Trial court did not err in admitting similar transaction evidence because certified copies of the defendant's prior conviction were sufficient to prove not only the similarity between the crimes for which the defendant was convicted, aggravated sexual battery, aggravated sodomy, child molestation, and enticing a child for indecent purposes, and the former crimes but also to establish that the defendant was, in fact, convicted of those offenses; the certified copies the state submitted included an indictment charging the defendant with continuous sexual abuse against a child to whom the defendant had recurring access and with whom the defendant engaged in three and more acts of lewd and lascivious conduct and with lewd and lascivious conduct upon the same child. Spradling v. State, 310 Ga. App. 337, 715 S.E.2d 672 (2011).Evidence of similar incident proper.
- Evidence of similar transaction admissible where in both incidents defendant approached a young child on the street shortly after school hours and chased the victim when the victim withdrew. Sims v. State, 212 Ga. App. 426, 442 S.E.2d 292 (1994).Child molestation and enticing child for indecent purposes as included offenses.
- When the appellant stands convicted under a two-count indictment charging appellant with enticing a child for indecent purposes and child molestation, one crime is not included within the other as a matter of law. Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).
Child molestation and enticement are separate offenses, and the combination of attempt with child molestation does not bring it within the purview of enticement. Wittschen v. State, 259 Ga. 448, 383 S.E.2d 885 (1989).
Child molestation and enticement counts merged as a matter of fact where the enticement counts of the indictment specifically alleged that defendant enticed the child for the purpose of child molestation and, thus, in order to prove the enticement counts, the prosecution had to prove all the facts used to prove the child molestation counts. Wells v. State, 222 Ga. App. 587, 474 S.E.2d 764 (1996).
Child molestation and enticing a child for indecent purposes are distinct and separate offenses that are not included within each other as a matter of law, as the offense of enticement has an element of asportation not found in the offense of child molestation. Veasey v. State, 234 Ga. App. 795, 507 S.E.2d 799 (1998).
Charges of child molestation and enticement did not merge as a matter of fact under the circumstances of the case since the acts which constituted enticement were separate from and completed before the acts which constituted molestation. Leon v. State, 237 Ga. App. 99, 513 S.E.2d 227 (1999).
Trial court did not err in failing to merge the defendant's convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes because to convict the defendant of criminal attempt to commit child molestation, the state had to prove that the defendant took a substantial step towards doing an immoral or indecent act to or with someone believed to be under the age of 16, and for purposes of convicting the defendant of criminal attempt to entice a child for indecent purposes, the state was not required to prove that the defendant was acting with an intent or desire to satisfy sexual desires. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).Child molestation and enticing child for indecent purposes did not merge.
- Since the defendant encouraged the victim to sneak out of the house and then picked up the victim, drove the victim to a secluded destination, and proceeded to touch the victim in a sexual manner, the evidence showed that the charged offense of enticing a child and child molestation did not merge as a matter of fact, because the defendant completed the enticement before committing the acts of child molestation. Lengsfeld v. State, 324 Ga. App. 775, 751 S.E.2d 566 (2013).Enticing child for indecent purposes is not included in offense of aggravated sodomy.
- Enticing a child for indecent purposes, is not included in offense of aggravated sodomy, as each of these offenses involves proof of distinct essential elements. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981).Attempt to entice child for immoral purposes.
- Although an indictment for attempting to commit the offense of enticing a child for indecent purposes did not allege actual asportation, it did allege that defendant arranged to meet the victim for the purpose of committing indecent acts and, accordingly, did not fail to allege the taking of a substantial step toward the commission of the crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).
Crime of enticing is complete when the defendant asports the victim with the intent to commit an indecent act, regardless of whether the act is actually committed; when, however, the defendant attempts to entice a child but is unsuccessful with respect to the asportation element, the defendant is properly charged with criminal attempt. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).
Defendant was properly ordered to register as a sex offender because the convictions constituted criminal offenses against a victim who was a minor, pursuant to O.C.G.A. § 42-1-12(a)(9)(B), and because the attempt convictions, pursuant to O.C.G.A. § 16-4-1, were covered within the registration requirement; defendant was convicted of criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes, in violation of O.C.G.A. §§ 16-6-4(a) and16-6-5(a), respectively, as defendant communicated over the Internet with a police officer who was disguised as a 14-year-old child, and arranged to meet the alleged child, and the fact that an actual child was not involved did not negate the offense or the need for the registration as there was no impossibility defense. Spivey v. State, 274 Ga. App. 834, 619 S.E.2d 346 (2005).
Sufficient evidence supported the defendant's conviction for criminal attempt to entice a child for indecent purposes based on the evidence that the defendant thought the intended victim was a 15-year-old girl with whom the defendant continued to contact, engaged in sexually explicit conversations, and arranged to meet for a sexual encounter, and although the defendant introduced some evidence in the form of an e-mail to support the claim that the defendant believed the defendant was dealing with an adult, that evidence was not conclusive and it was for the jury to determine the defendant's truthfulness. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).
Conviction of criminal attempt to commit child molestation and to entice a child upheld; the defendant had sexual contact with his daughters when they were children, with one of the daughters giving birth to two of his children, he touched the victim (his 10-year-old granddaughter) inappropriately, and he gave her a note asking to lie in bed with her and caress her. Shaum v. State, 355 Ga. App. 513, 844 S.E.2d 863 (2020).Statutory rape.
- The crime of enticing a child for indecent purposes is not included in the crime of statutory rape. Coker v. State, 164 Ga. App. 493, 297 S.E.2d 68 (1982).Spouse guilty of aiding and abetting in enticing a child for indecent purposes.
- Evidence was sufficient to support the defendant's convictions of aiding and abetting, under O.C.G.A. § 16-2-20, defendant's spouse in enticing a minor child for indecent purposes, in violation of O.C.G.A. § 16-6-5(a), and of child molestation. Evidence was presented that: (1) when the defendant's spouse brought the victim back to their home, the spouse left the victim with the defendant who admitted to giving the victim thong panties; (2) the defendant gave the victim alcohol, and gave the victim pornographic materials to read before the defendant's spouse came home; and (3) the defendant was close by on the couch when the defendant's spouse pulled down the victim's pants, tried to kiss the victim, pulled down the victim's underwear, and offered the victim money to put on the thong. Dockery v. State, 309 Ga. App. 584, 711 S.E.2d 100 (2011).Teacher guilty of enticing student for indecent purposes.
- Defendant's conviction for enticing a child for indecent purposes was supported by evidence that the defendant took the victim, a 15-year-old student of the defendant's, in a taxi, a train, and a bus to an inn, the defendant provided the victim with alcohol and marijuana, and the defendant performed oral sex on the victim and raped the victim after the victim was too intoxicated to resist. Clark v. State, 323 Ga. App. 706, 747 S.E.2d 705 (2013).Evidence sufficient for conviction.
- Evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of enticing a child for indecent purposes. Sims v. State, 212 Ga. App. 426, 442 S.E.2d 292 (1994).
Aggravated child molestation, child molestation, enticing a child for indecent purposes, and aggravated sodomy convictions were all supported by sufficient evidence provided by the victims detailing the inappropriate touching and anal penetration committed by defendant, and confirmed by the examining experts. Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004).
Evidence was sufficient to support a conviction for enticing a child for indecent purposes when the 10-year-old child victim testified that defendant called to the victim, asked for a hug, and then held the victim captive while rubbing the victim against the defendant's naked genitalia. Duncan v. State, 269 Ga. App. 4, 602 S.E.2d 908 (2004).
Evidence supported defendant's enticing a child for indecent purposes conviction as defendant picked up the 14-year-old victim and took the victim to the defendant's love interest's bedroom; the love interest observed defendant stroking and fondling the victim's neck and ears; the victim's testimony that nothing improper occurred did not render the evidence insufficient to support the conviction. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).
Evidence supported a conviction for enticing a child for indecent purposes where the defendant requested that the victim leave the victim's own home, took the victim to the defendant's home, physically carried the victim to the defendant's bedroom, and, among other acts, placed the defendant's mouth on the victim's breasts. Jackson v. State, 274 Ga. App. 26, 619 S.E.2d 294 (2005).
Defendant's convictions for enticing a child for indecent purposes and solicitation of sodomy for money with a child under 17, in violation of O.C.G.A. §§ 16-6-5 and16-6-15, respectively, were supported by the evidence as the defendant invited two young victims to the defendant's home, had one of the victims watch a pornographic videotape and propositioned both of the victims by discussing the victims' sexual history and sexual acts; it was clear that the element of asportation was satisfied when the defendant invited the victims to the defendant's home in order to entice the victims to engage in sexual acts. Carolina v. State, 276 Ga. App. 298, 623 S.E.2d 151 (2005).
Sufficient evidence supported the convictions of enticing a child for indecent purposes under O.C.G.A. § 16-6-5 and of three counts of child molestation under O.C.G.A. § 16-6-4; the victim and the victim's younger sister specifically testified that the defendant committed the acts described in the indictment, and other testimony corroborated this testimony. Mikell v. State, 281 Ga. App. 739, 637 S.E.2d 142 (2006).
Sufficient evidence supported the defendant's convictions of enticing a child for indecent purposes under O.C.G.A. § 16-6-5(a) and kidnapping under O.C.G.A. § 16-5-40(a); the victim testified that the defendant carried the victim into the defendant's bedroom and would not allow the victim to leave until the defendant had finished abusing the victim. Anderson v. State, 282 Ga. App. 58, 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Sufficient identification evidence supported the defendant's convictions of four counts of aggravated child molestation under O.C.G.A. § 16-6-4(b), three counts of child molestation under O.C.G.A. § 16-6-4(a), and two counts of enticing a child for indecent purposes under O.C.G.A. § 16-6-5; the victim testified that the victim knew the defendant, that the defendant and the victim's mother lived together, and that the perpetrator's name was the defendant's first name. Clark v. State, 282 Ga. App. 248, 638 S.E.2d 397 (2006).
Because sufficient direct evidence was presented via the victim's testimony that the defendant improperly touched and digitally penetrated the victim's vagina, convictions upon charges of aggravated sodomy, aggravated child molestation, and other crimes arising from that contact were upheld on appeal; further, any error related to the admission of the victim's videotaped statement was harmless as such statement would have been admissible as res gestae or to prove the defendant's lustful disposition. Morrow v. State, 284 Ga. App. 297, 643 S.E.2d 808 (2007).
Defendant retrieved victims from their homes after misleading their parents regarding the reason for doing so and took them to defendant's house, hog-tied the victims, taped the victims' eyes and mouth, tickled the victims, and inserted an object into the victims' mouths; thus, the evidence supported the conclusion that defendant took the victims to defendant's house with the present intent of either molesting the children or engaging in indecent acts. Ayers v. State, 286 Ga. App. 898, 650 S.E.2d 370 (2007), cert. denied, 2008 Ga. LEXIS 117 (Ga. 2008).
With regard to a defendant's convictions on one count of enticing a child for indecent purposes, ten counts of child molestation, one count of aggravated child molestation, and three counts of cruelty to children in the first degree, regarding actions the defendant took toward three children and what the children were forced to do to each other by gunpoint while the defendant was a babysitter for the children, the state proved the charged offenses beyond a reasonable doubt based on the testimony of the three victims and the victims' videotaped forensic interviews. It was within the province of the jury to disbelieve the defendant's testimony that the defendant did not commit the charged crimes. Sullivan v. State, 295 Ga. App. 145, 671 S.E.2d 180 (2008), cert. denied, No. S09C0624, 2009 Ga. LEXIS 215 (Ga. 2009).
Defendant's convictions for aggravated child molestation, aggravated assault, enticing a child for an indecent purpose, kidnapping, false imprisonment, cruelty to children, burglary, theft by taking, and striking an unattended vehicle were authorized because at trial the defendant was positively identified as the perpetrator of the crimes; a nurse and doctor testified that the victim had an injury that was consistent with the molestation allegation, and a videotape depicted the defendant driving a maintenance truck that the defendant did not have authority to take. Bearfield v. State, 305 Ga. App. 37, 699 S.E.2d 363 (2010).
Evidence that the defendant, age 35, met a girl online whom the defendant believed was 15, that the defendant made numerous comments about how the defendant could get in trouble or go to jail, that the defendant engaged in sexually explicit conversations and directed the child to pornography sites showing black men having sex with white women, that the defendant drove to an arranged meeting place, and, that, when officers appeared, the defendant fled, was sufficient to convict defendant of violating O.C.G.A. §§ 16-4-1 (attempt),16-6-4 (child molestation),16-6-5 (enticement of a child), and16-10-24 (obstruction). Smith v. State, 306 Ga. App. 301, 702 S.E.2d 211 (2010).
Evidence was more than sufficient to support the jury's conclusion that the defendant committed the crimes of kidnapping with bodily injury, aggravated child molestation, aggravated sodomy, child molestation, enticing a child for indecent purposes, and cruelty to children because the state offered significant evidence connecting the defendant to the assault, including the defendant's confession to police, the testimony of the victim's uncle that the defendant was the only individual who fit the victim's description, and evidence that both the defendant and the victim were treated for a sexually transmitted disease. Dunson v. State, 309 Ga. App. 484, 711 S.E.2d 53 (2011), cert. dismissed, No. S15C1215, 2015 Ga. LEXIS 580 (Ga. 2015).
Using an online chat service, a defendant befriended a White County sheriff's investigator whom the defendant believed to be a 14-year-old girl who said she was a virgin. The defendant asked her if she wanted to have sex, described the sex acts the defendant would perform, and masturbated for her over the defendant's webcam, which also showed the defendant's face. After she agreed to meet with the defendant, the defendant then drove to her county and was apprehended near the meeting site with condoms. This evidence was sufficient to convict. Adams v. State, 312 Ga. App. 570, 718 S.E.2d 899 (2011), cert. denied, No. S12C0500, 2012 Ga. LEXIS 263 (Ga. 2012).
State presented sufficient evidence to sustain the defendant's conviction for enticing a child for indecent purposes by unlawfully enticing the victim into a bedroom for the purpose of committing child molestation as a transcript of the victim's interview showed that the defendant had a computer in the defendant's bedroom that sat next to the bed, and when the victim was in another part of the house, the defendant would call the victim into the bedroom and show the victim different porno sites, pictures of naked men, and naked women. Whorton v. State, 318 Ga. App. 885, 735 S.E.2d 7 (2012).
There was sufficient evidence to support defendant's convictions for child molestation and enticing a child for indecent purposes based on the testimony of the victim, who stated that when she was 10-years-old, she encountered defendant, who grabbed her arms, forcefully moved her from the stairwell into an empty apartment, and forced her to have vaginal intercourse with him. Rollins v. State, 318 Ga. App. 311, 733 S.E.2d 841 (2012).
Evidence was sufficient to support the defendant's conviction for enticing a child for indecent purposes under O.C.G.A. § 16-6-5 since the trial testimony and all reasonable inferences drawn from the testimony were sufficient to support a finding that the defendant enticed the victim to the defendant's residence for purposes of child molestation by giving the victim money. Moore v. State, 319 Ga. App. 696, 738 S.E.2d 140 (2013).
Slight movement of the child from the living room sofa to the kitchen table was sufficient asportation to support a conviction for enticing a child for indecent purposes. Tudor v. State, 320 Ga. App. 487, 740 S.E.2d 231 (2013).
Conviction for enticing a child for indecent purposes was supported by sufficient evidence as the evidence authorized the jury to find that the defendant enticed the four-year-old victim to the victim's mother's bedroom with the intention to engage in child molestation as established by the defendant's subsequent act of placing the victim's hand on the defendant's penis. Calling the victim from the couch into the mother's bedroom was sufficient evidence of asportation. Allison v. State, Ga. App. , 846 S.E.2d 222 (2020).
Evidence was sufficient to convict the defendant of aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes because two of the victims were nine years old at the time of their outcries and the third victim was eight years old at the time of that victim's outcry; the defendant's mother occasionally watched the victims while their father was at work, sometimes over night; the defendant would bring the victims into the defendant's bedroom, where the defendant would force the children to perform oral sex upon the defendant and anally penetrated the children with the defendant's sex organ; and the defendant threatened to hurt the children if the children told anyone about the abuse. Stodghill v. State, 351 Ga. App. 744, 832 S.E.2d 891 (2019).Sexual abuse by grandparent.
- Child victim's testimony that defendant, her grandfather, asked her if she had pubic hair and tried to touch her vaginal area, asked her if she would like to touch his penis and exposed it to her, and attempted to kiss her on the lips, supported his convictions for child molestation and enticing a child for indecent purposes under O.C.G.A. §§ 16-6-4 and16-6-5. Craft v. State, 324 Ga. App. 7, 749 S.E.2d 16 (2013).
There was sufficient evidence that the defendant took a substantial step toward committing the crime of enticing a child for indecent proposes, as a rational trier of fact could have reasonably inferred that the defendant was attempting to entice the children to move away from the apartment door and go to another place to have sex with the defendant when the defendant asked them if they wanted to have sex. Budeanu v. State, 325 Ga. App. 177, 751 S.E.2d 924 (2013).
Second victim's testimony that the defendant took the second victim for a ride in the defendant's car, the defendant pulled over on the side of the road and kissed the second victim and told the second victim the defendant wanted to see the second victim's breasts was sufficient to support the defendant's conviction for child enticement. Reinhard v. State, 331 Ga. App. 235, 770 S.E.2d 314 (2015).
Convictions for attempting to commit trafficking a person for sexual servitude, conspiring to commit pimping, and enticing a child under 16 for indecent purposes were supported by evidence that two victims were taken home from a bar by the defendant and one was asked if she would be comfortable doing prostitution in the defendant's household, and the two victims gave out a business card for the escort service and posted ads for prostitution on Craigslist. Ferguson v. State, 335 Ga. App. 862, 783 S.E.2d 380 (2016).
Evidence that the victim approached the defendant with an offer regarding oral sex on two occasions, following the defendant's earlier offer to pay the victim if the victim would allow the defendant to perform oral sex on the victim, and that the victim was 14 years old at the time the enticement occurred was sufficient to support the defendant's convictions for enticing a child for indecent purposes and solicitation of sodomy. Tezeno v. State, 343 Ga. App. 623, 808 S.E.2d 64 (2017).
Victim's testimony in the recorded forensic interview that the defendant would tell the victim to come with the defendant and the victim's grandmother to the motel and that the defendant regularly molested the victim when the victim went with them to a motel was sufficient to support the defendant's conviction for enticing a child for indecent purposes under O.C.G.A. § 16-6-5(a). Garza v. State, 347 Ga. App. 335, 819 S.E.2d 497 (2018).Evidence insufficient for conviction of enticing minor child.
- Defendant's convictions for enticing a minor child under O.C.G.A. § 16-6-5 were reversed because there was no evidence that the defendant enticed, persuaded, or lured the child victims, the defendant's grandchildren, to the defendant's home or into any area of the house. Rather, the children were brought to the home voluntarily by their parents. Henderson v. State, 303 Ga. App. 531, 694 S.E.2d 185 (2010).
Appellant was not convicted twice for same conduct as matter of fact where convicted of violating former Code 1933, §§ 26-505 and 26-506 (see now O.C.G.A. §§ 16-6-4 and16-6-5). Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).Admission of challenged evidence deemed harmless error.
- In a prosecution against the defendant for child molestation, enticing a child for indecent purposes, and exhibiting pornography to a minor, even if the appeals court assumed that the word "catheter" should have been redacted from what the defendant apparently conceded was an otherwise relevant list of items found in a search, the trial court's failure to do so was harmless error because it was highly improbable that such failure contributed to the verdict given the overwhelming evidence of the defendant's guilt. Goldey v. State, 289 Ga. App. 198, 656 S.E.2d 549 (2008).Severance of offenses.
- Severance of four counts of child molestation and enticing a child, O.C.G.A. §§ 16-6-4(a)(1) and16-6-5, was not required because the evidence regarding the events was not confusing or complicated, and each of the incidents would have been admissible as a similar crime in a trial of the other incidents. Heck v. State, 313 Ga. App. 571, 722 S.E.2d 166 (2012).Defense counsel not ineffective.
- As to the defendant's convictions for child molestation, sexual battery, and enticing a child for indecent purposes, the defendant failed to establish that trial counsel's performance prejudiced the defense for failing to investigate the victim receiving prior parental discipline as trial counsel got the victim to admit to being afraid of getting into trouble for coming home late on the night of the incident. Carstaffin v. State, 323 Ga. App. 354, 743 S.E.2d 605 (2013).Jury Instructions
With regard to the defendant's conviction for enticing a child, the trial court properly denied the defendant's motion for a new trial based on ineffective assistance because: trial counsel testified at the motion for new trial hearing that the defendant agreed to the strategic defense that no sexual contact was made with the victim and since the defendant did not testify at the hearing, the defendant did not show that trial counsel was deficient in advising the defendant of the constitutional right to testify; furthermore, the argument that trial counsel was deficient for failing to interview the victim and agreeing to stipulate that the defendant drove the victim to the park because trial counsel stated that the defendant agreed to the strategy of keeping the victim off the stand and to stipulate to the victim's age was also without merit. Stevens v. State, 329 Ga. App. 91, 762 S.E.2d 833 (2014).
State was not required to charge a defendant with child molestation in order to obtain a conviction for enticing a child for indecent purposes as those are two separate crimes involving different elements, and generally, enticement is completed before child molestation occurs. Jackson v. State, 274 Ga. App. 26, 619 S.E.2d 294 (2005).Instructions did not cause prejudicial error.
- Trial court's jury charge on defendant's charges of enticing a child for indecent purposes and solicitation of sodomy for money with a child under 17, in violation of O.C.G.A. §§ 16-6-5 and16-6-15, respectively, was not prejudicial to defendant, although the indictment against defendant charged defendant with committing acts in the conjunctive and the jury instructions allowed the jury to convict defendant for committing any of the acts, which were stated in the disjunctive, as proof that the crimes were committed in any of the separate ways or methods alleged in the indictment was sufficient to sustain the convictions. Carolina v. State, 276 Ga. App. 298, 623 S.E.2d 151 (2005).Sentence
Trial court did not err in charging the jury on the full statutory definition of enticing a child for indecent purposes, O.C.G.A. § 16-6-5, even though the indictment only alleged that the defendant "took" the child and not that the defendant "enticed" or "solicited" the child because the charge as a whole limited the jury's consideration to the specific manner of committing the crime alleged in the indictment. Wheeler v. State, 327 Ga. App. 313, 758 S.E.2d 840 (2014), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).Sentence.
- There was no showing that the defendant's sentences for enticing a minor for indecent purposes, statutory rape, and contributing to the delinquency of a minor were vindictively enhanced in violation of Ga. Unif. Super. Ct. R. 33.6(B) after the defendant was allowed to revoke a guilty plea because, inter alia, the trial judge found that an enhanced sentence was warranted based on material differences between the facts presented regarding the nature of the crimes during the plea hearing and the trial; the concurrent sentences of 15 years to serve for enticing a minor for indecent purposes and statutory rape, plus 12 concurrent months for contributing to the delinquency of a minor were within statutory limits and valid. There was no absolute constitutional bar to imposing a more severe sentence upon re-sentencing. Hawes v. State, 298 Ga. App. 461, 680 S.E.2d 513 (2009), cert. denied, No. S09C1769, 2010 Ga. LEXIS 15 (Ga. 2010).
In a case in which the defendant appealed the defendant's 54-month sentence for violating 8 U.S.C. § 1326(a) and (b)(2), the defendant unsuccessfully argued that the sentence was substantively unreasonable. The district court properly applied 16-level enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) based on the defendant's guilty plea to violating O.C.G.A. § 16-6-5(a), and it was immaterial that the Georgia conviction was based on an Alford plea. United States v. Ramirez-Gonzalez, 755 F.3d 1267 (11th Cir. 2014).Sentence enhancement under U.S.C.
- In a case in which the defendant appealed the defendant's 54-month sentence for violating 8 U.S.C. § 1326(a) and (b)(2), a district court did not err by enhancing the defendant's offense level by 16 levels under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) since the defendant's conviction for enticing a child for indecent purposes, in violation of O.C.G.A. § 16-6-5(a), qualified as sexual abuse of a minor and, therefore, a crime of violence. United States v. Ramirez-Gonzalez, 755 F.3d 1267 (11th Cir. 2014).First offender consideration not appropriate.
- Because the defendant was not entitled to first offender treatment for the crimes of child molestation and enticing a child for indecent purposes, to which the defendant pled guilty, the defendant's claims that trial counsel was deficient for misinforming the defendant about the defendant's eligibility for and failing to request first offender treatment were without merit. Harris v. State, 325 Ga. App. 568, 754 S.E.2d 148 (2014), recons. denied, 2019 U.S. App. LEXIS 30410 (11th Cir. Ga. 2019), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).RESEARCH REFERENCES
Corroboration of a Child's Sexual Abuse Allegation with Behavioral Evidence, 25 POF3d 189.ALR.
- White Slave Traffic Act (Mann Act) as affecting constitutionality or application of state statutes dealing with prostitution, 161 A.L.R. 356.
Assault with intent to commit unnatural sex act upon minor as affected by latter's consent, 65 A.L.R.2d 748.
Applicability of criminal statutes relating to offenses against children of a specified age with respect to a child who has passed the anniversary date of such age, 73 A.L.R.2d 874.
Criminal liability for contributing to delinquency of minor by sexually immoral acts as affected by fact that minor was married at time of acts charged, 84 A.L.R.2d 1254.
Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.
What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.
Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior sexual experience for purposes of showing alternative source of child's ability to describe sex acts, 83 A.L.R.4th 685.
Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group, 18 A.L.R.5th 856.
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, 35 A.L.R.6th 361; 33 A.L.R.6th 373.
Construction and application of U.S. Sentencing Guideline § 2g1.3(b)(3), providing two-level enhancement for use of computer to persuade, induce, entice, coerce, or facilitate the travel of minor to engage in prohibited sexual conduct, 58 A.L.R. Fed. 2d 1.