Lasseter v. State, A90A1456
| Decision Date | 06 November 1990 |
| Docket Number | No. A90A1456,A90A1456 |
| Citation | 399 S.E.2d 85,197 Ga.App. 498 |
| Parties | LASSETER v. The STATE. |
| Court | Georgia Court of Appeals |
Bray, Hancock & Cook, Morrow, B. Thomas Cook, Jr., Riverdale, Alan J. Baverman, Atlanta, for appellant.
Robert E. Keller, Dist. Atty., Tracy G. Gladden, Asst. Dist. Atty., for appellee.
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. 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....
To continue reading
Request your trial
-
Allison v. State
...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, 498 (1), 399 S.E.2d 85 (1990).The statute has been held to include the element of "asportation," and our Supreme Court has held that this eleme......
-
Weyer v. State
...ever accomplished because “the principal act proscribed by the crime is solicitation”) (emphasis omitted); Lasseter v. State, 197 Ga.App. 498, 499 –500(1), 399 S.E.2d 85 (1990) (conviction for enticement of a child for indecent purposes under OCGA § 16–6–5(a) “need not be based upon evidenc......
-
Lengsfeld v. State
...or even attempted, merely that it was intended as motivation for the enticement.”) (punctuation omitted); Lasseter v. State, 197 Ga.App. 498, 499(1), 399 S.E.2d 85 (1990) (“[A] conviction under OCGA § 16–6–5 need not be based upon evidence that an act of indecency or child molestation was a......
-
Garza v. State
...operation of the act of [soliciting] a child and the intention to commit acts of indecency or child molestation." Lasseter v. State , 197 Ga. App. 498 (1), 399 S.E.2d 85 (1990). Stated otherwise, for Garza’s conviction to be affirmed there must be evidence that he "himself [solicited C. D. ......