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Docket Number

A90A1456.

Attorney(S)

Bray, Hancock Cook, B. Thomas Cook, Jr., Alan J. Baverman, for appellant. Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

Judges

CARLEY, Chief Judge.

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Smart Summary

Case Summary: Lasseter v. The State, A90A1456 (Ct. App. Ga. Nov. 6, 1990)

Factual and Procedural Background

Appellant was tried before a jury in Clayton Superior Court and found guilty of one count of child molestation and two counts of enticing a child for indecent purposes. He appealed from the judgments of conviction and the sentences entered on those jury verdicts.

The evidence showed that appellant resided in a house with his son, daughter-in-law, and grandson. The house had a swimming pool and a poolhouse. The two victims were frequent visitors to the house: friends of appellant's young grandson. The trial court admitted evidence of other similar offenses under Rule 31.3, denied appellant's motion to suppress evidence seized from the house pursuant to a warrant issued about four months after appellant's indictment, and gave the jury an Allen charge. On appeal, the Court of Appeals reviewed the convictions, the trial court's rulings on similar transaction evidence, the Allen charge, and the denial of the suppression motion.

Legal Issues Presented

Whether the evidence was legally sufficient to support appellant's convictions for enticing a child for indecent purposes under OCGA § 16-6-5 (general grounds challenge to those convictions).
Whether the State complied with Rule 31.3 such that evidence of appellant's commission of similar offenses was admissible.
Whether the trial court abused its discretion in giving the jury an Allen charge.
Whether the trial court correctly denied appellant's motion to suppress evidence seized from the house pursuant to a warrant issued about four months after indictment.
Disposition of the child molestation conviction and the convictions for enticing a child for indecent purposes.

Arguments of the Parties

Appellant's Arguments

Appellant "enumerates the general grounds" as to his convictions for enticing a child for indecent purposes — i.e., he challenged the sufficiency of the evidence supporting those convictions.
Appellant moved to suppress evidence seized from the house; the trial court denied the motion (the opinion addresses that denial).

State's Arguments

The State's principal contention was that by adducing probative evidence that (a) appellant himself occasionally invited the victims to the house and (b) appellant had committed acts of indecency or child molestation on some occasions while the victims were visiting, it had presented sufficient evidence of the "joint operation" of the act of enticing and the requisite intent to support convictions under OCGA § 16-6-5 even though no single invitation was shown to have been made with the present intent to commit indecency.
The State relied on at least one instance where a victim testified that appellant's grandson had told him "[Appellant] and me want you to come over," which the State argued showed joint operation of enticing and intent; the State also argued it complied with Rule 31.3 to admit similar-offense evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Case
Cimildoro v. State, 259 Ga. 788, 387 S.E.2d 335 (1990)	Holds that the offense of enticing a child for indecent purposes includes the element of "asportation" (movement/bringing onto the premises).	The court relied on Cimildoro to explain that enticing requires proof the defendant himself enticed the victim onto the premises with the present intent to commit indecency; mere attractive conditions on the premises are insufficient.
Sanders v. State, 145 Ga. App. 73, 243 S.E.2d 274 (1978)	Applied for the proposition that convictions under the enticing statute cannot stand without evidence that the defendant enticed the victim for indecent purposes.	The court cited Sanders to support reversal of the two convictions for enticing where there was no probative evidence that any invitation extended by appellant was motivated by an intent to commit indecency or child molestation.
Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981)	Explains that a conviction under the enticing statute must be based on some evidence that indecency or child molestation was the intended motivation for the enticement; enticement followed by a mere suggestion of indecency may suffice.	The court used Peavy to emphasize that the State must show the intended motivation for the enticement; here the State never proved an instance where indecency was the intended motivation for an invitation by appellant.
Eidson v. State, 182 Ga. App. 321, 355 S.E.2d 691 (1987)	Discussed in connection with the State's compliance with Rule 31.3 and admissibility of similar transaction evidence.	The court cited Eidson in concluding the trial court did not err in finding the State had complied with Rule 31.3 and allowing similar-offense evidence.
Hall v. State, 181 Ga. App. 92, 351 S.E.2d 236 (1986)	Also cited regarding Rule 31.3 and similar-offense evidence.	Cited along with Eidson to support the trial court's ruling that the State complied with Rule 31.3 and could introduce similar-offense evidence.
Brown v. State, 177 Ga. App. 284, 339 S.E.2d 332 (1985)	Discussed generally concerning the propriety of giving an Allen charge to a jury.	The court cited Brown to support its conclusion that there was no abuse of discretion in giving the jury an Allen charge.
Bayles v. State, 188 Ga. App. 437, 373 S.E.2d 266 (1988)	Addressed search and seizure/warrant issues relevant to suppression motions.	The court relied on Bayles to conclude the trial court correctly denied the motion to suppress evidence seized pursuant to a warrant issued about four months after appellant's indictment.

Court's Reasoning and Analysis

The court's analysis focused first on statutory elements and the necessity of proving both an act and a culpable mental state under OCGA § 16-2-1. Applying that principle to OCGA § 16-6-5 (enticing a child for indecent purposes), the court explained that the statute requires a "joint operation" of (1) the act of enticing a child and (2) the intention to commit indecency or child molestation.

The court found the evidence established that the house was an attractive place for the victims to visit (pool, poolhouse, convivial atmosphere, friendship with grandson), and there was probative evidence that appellant sometimes invited the victims to the house and on other occasions committed acts of indecency or child molestation while they were visiting. However, the court emphasized that these two types of proof, standing alone and unconnected, do not satisfy the "joint operation" requirement: the State had to prove that appellant himself enticed the victims onto the premises with the present intent to commit indecency or child molestation.

The court relied on Cimildoro to underscore that the enticing offense includes an asportation element and on Peavy to emphasize that a conviction under the enticing statute must be based on evidence that indecency was the intended motivation for the enticement (even if the indecency was only suggested and not executed). The court rejected the State's theory that showing appellant had on some occasions invited and on other occasions molested the victims was sufficient to convict on all enticing counts: such a theory would permit convictions for multiple invitations based solely on an isolated instance of molestation, which would contravene OCGA § 16-2-1's requirement of joint operation of act and intent.

The court addressed a specific evidentiary point: the State relied on a victim's testimony that the grandson had said "[Appellant] and me want you to come over." The court held that testimony was non-probative hearsay as to whether appellant himself had extended the invitation, and thus could not supply the missing link showing appellant invited the victim with the requisite intent.

Having concluded the State never proved an instance in which an act of indecency or child molestation was the intended motivation for any invitation extended by appellant, the court determined the evidence was insufficient to support the enticing convictions. Separately, the court upheld the conviction for child molestation itself (finding the evidence sufficient to support the jury's verdict for that charge).

On other issues, the court found: (1) the trial court did not err in finding that the State complied with Rule 31.3 and allowing similar-offense evidence (citing Eidson and Hall); (2) the trial court did not abuse its discretion in giving an Allen charge (citing Brown); and (3) the trial court correctly denied the motion to suppress evidence seized pursuant to a warrant issued some four months after indictment (citing Bayles).

Holding and Implications

Judgment: Affirmed in part; Reversed in part.

Holding (direct effect): The Court of Appeals affirmed the judgment of conviction and sentence for the child molestation count, and reversed the two judgments of conviction and sentences for enticing a child for indecent purposes.

Implications: The direct consequence is that appellant's child molestation conviction and sentence remain in force, while his two convictions for enticing a child for indecent purposes were vacated and reversed for insufficient evidence as to the required joint operation of enticement and intent. The opinion applies existing statutory interpretation and cited precedents (including Cimildoro, Peavy, and Sanders) to clarify that separate proof of invitations and separate proof of molestations are not interchangeable with proof that a given invitation was made with the present intent to commit indecency; the decision does not announce a new rule of law beyond the cited authority.

Disposition as stated in opinion: "Judgments affirmed in part and reversed in part." (McMurray, P. J., and Sognier, J., concur.)

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LASSETER v. THE STATE.

CARLEY, Chief Judge.

Appellant was tried before a jury and found guilty of one count of child molestation and two counts of enticing a child for indecent purposes. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's verdicts of guilt.

1. As to his convictions for enticing a child for indecent purposes, appellant enumerates the general grounds.

"A `crime' is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence." OCGA § 16-2-1. The crime of enticing a child for indecent purposes in violation of OCGA § 16-6-5 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. Accordingly, neither the act of enticing a child without the requisite intent nor the intent to commit acts of indecency or child molestation without the requisite act would constitute a crime under OCGA § 16-6-5.

The evidence in the instant case showed that appellant lived in a house with his son, daughter-in-law and grandson. The house had a pool and a poolhouse. The victims of appellant's alleged criminal enticement were two friends of appellant's young grandson who were frequent visitors to the house. The evidence would certainly authorize a finding that the house itself was an enticing place for the victims to visit because of the swimming pool, their friendship with appellant's grandson and the existence of what the trial court termed "a generally attractive convivial atmosphere." However, the victims' self-induced enticement resulting from the mere presence of such attractive-but-otherwise innocuous conditions on the premises would not be evidence that appellant himself had committed any act with the requisite intent whereby the victims were enticed to the premises. "The offense described in OCGA § 16-6-5, `enticing a child for indecent purposes,' has been held to include the element of `asportation.' [Cit.]" Cimildoro v. State, 259 Ga. 788, 789 (1) ( 387 S.E.2d 335) (1990). Accordingly, in the absence of sufficient probative evidence that appellant himself enticed the victims onto the premises with the present intention to commit acts of indecency or child molestation after they had been enticed there, his convictions for violating OCGA § 16-6-5 cannot stand. Sanders v. State, 145 Ga. App. 73 ( 243 S.E.2d 274) (1978).

There was probative evidence that, on occasion, it was appellant rather than his grandson who would extend to the victims an invitation to pay a visit to the house. There is, however, no probative evidence that, on any such occasion, appellant had done so with the requisite criminal intent. There was also probative evidence that, on occasion, appellant did have the requisite intent to commit acts of indecency or child molestation while the victims were visiting the house because he had actually committed such acts. There is, however, no probative evidence that, on any such occasion, it had been appellant, rather than his grandson, who had extended to the victims the invitation to pay a visit to the house. The State cites only one instance wherein it contends that the evidence was sufficient to show the joint operation of appellant's act of enticing a victim to the house and his intent to commit acts of indecency or child molestation. A victim did testify that on one of those occasions when he was subjected to appellant's acts of indecency or child molestation while visiting the house the invitation for his visit had been extended by appellant's grandson who had told him: "[Appellant] and me want you to come over." Contrary to the State's contention, however, this testimony is non-probative hearsay insofar as it purports to be evidence that it was appellant who had extended the invitation to the victim.

It is apparently the State's primary contention that, by adducing probative evidence that appellant himself would occasionally invite the victims to the house and probative evidence that he had committed acts of indecency or child molestation on some occasions when the victims were visiting, it met its burden of showing sufficient evidence to authorize appellant's convictions for violating OCGA § 16-6-5 notwithstanding the lack of probative evidence that any of the acts of indecency or child molestation had ever occurred after any of the invitations that had been extended by appellant himself. Under this theory, mere proof that appellant had actually committed an act of indecency or child molestation while the victims were visiting the house would demonstrate that the otherwise innocuous invitations that he had extended on any and all other occasions had been made with the requisite intent. However, such a theory cannot be sanctioned under OCGA § 16-2-1 which requires a showing of the joint operation of the proscribed act and the intention. Under the theory advanced by the State, it could adduce evidence of the extension of 100 otherwise innocuous invitations for a child to visit with only the last visit resulting in the commission of an act of indecency or child molestation and thereby secure a conviction for 100 counts of enticing a child.

Although a conviction under OCGA § 16-6-5 need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted, a conviction under that statute must nevertheless be based upon some evidence that an act of indecency or child molestation was the intended motivation for the enticement. Peavy v. State, 159 Ga. App. 280, 282 (1a) ( 283 S.E.2d 346) (1981). Thus, evidence of a child's enticement to a location followed by the mere suggestion of an act of indecency or child molestation will authorize a conviction. Peavy v. State, supra. While the State in the instant case showed that appellant had enticed the victims to the house by extending them apparently innocuous invitations on some occasions and that appellant had actually committed acts of indecency or child molestation on the victims while they were visitors in the house on some other occasions, it never proved a single instance wherein an act of indecency or child molestation, whether merely suggested or actually perpetrated, was the intended motivation for appellant's invitation. The evidence adduced would clearly authorize a jury to find that appellant was guilty of the acts of child molestation that he actually committed while the victims were visiting the house, but it would not authorize a jury to find that appellant was also guilty of the separate crime of enticing the victims to the house for indecent purposes. Sanders v. State, supra. It follows that appellant's two convictions for violating OCGA § 16-6-5 must be reversed.

2. The trial court did not err in holding that the State had fully complied with Rule 31.3 and would, therefore, be allowed to introduce evidence of appellant's commission of similar offenses. See generally Eidson v. State, 182 Ga. App. 321, 322 (2) ( 355 S.E.2d 691) (1987); Hall v. State, 181 Ga. App. 92, 93 (1a) ( 351 S.E.2d 236) (1986).

3. We find no abuse of discretion in the trial court's decision to give the jury an Allen charge. See generally Brown v. State, 177 Ga. App. 284 (1) ( 339 S.E.2d 332) (1985).

4. The trial court correctly denied the motion to suppress evidence seized from the house pursuant to a warrant issued some four months after appellant's indictment. Bayles v. State, 188 Ga. App. 437 ( 373 S.E.2d 266) (1988).

5. The judgment of conviction and sentence for child molestation are affirmed. The judgments of conviction and sentences for enticing a child for indecent purposes are reversed.

Judgments affirmed in part and reversed in part. McMurray, P. J., and Sognier, J., concur.

DECIDED NOVEMBER 6, 1990.

LASSETER v. STATE