Lopez v. State

• Decision Date: 22 September 2014
• Docket Number: No. A14A0092.,A14A0092.
• Citation: 757 S.E.2d 436,326 Ga.App. 770
• Court: Georgia Court of Appeals
• Parties: LOPEZ v. The STATE.

326 Ga.App. 770
757 S.E.2d 436

LOPEZ
v.
The STATE.

No. A14A0092.

Court of Appeals of Georgia.

April 2, 2014.
Certiorari Denied Sept. 22, 2014.

[757 S.E.2d 438]

McNeill Stokes, Atlanta, for Appellant.

Christopher Allen Arnt, Asst. Dist. Atty., Herbert E. Franklin, Dist. Atty., for Appellee.

ELLINGTON, Presiding Judge.

A Catoosa County jury found Emanuel Lopez guilty of using a computer internet service to seduce or entice another person believed by him to be a child for the purpose of committing child molestation and aggravated child molestation, in violation of Georgia's Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, OCGA § 16–12–100.2(d); and attempting to commit a felony, OCGA §§ 16–4–1; 16–6–4(c) (aggravated child molestation). Following the denial of his motion for a new trial,¹ Lopez appeals, contending that the

[757 S.E.2d 439]

indictment and verdict were contrary to law because there was no actual victim; that the prosecution constitutes an unconstitutional criminalization of thoughts; that venue was not proper in Catoosa County; that the trial court erred in excluding expert opinion evidence that he lacked any predisposition to engage in sexual relations with underaged persons and that the State improperly enticed him; that the State failed to rebut his defense of entrapment; and that the trial court improperly excluded him from critical stages of the proceedings. For the reasons explained below, we affirm.

Viewed in the light most favorable to the jury's verdict,² the record shows the following. In June 2010, a detective with the Catoosa County Sheriff's Department, working in conjunction with the FBI's “Innocent Images” task force, placed an ad in the “Women Seeking Men” personals section of the Craigslist website posing as “Sara.” Craigslist requires that a poster in that section confirm that she is at least eighteen years old. “Sara” described herself as “lonely and bored” since school was out and as hoping to “meet guys” and wanting someone who could “take [her] away.” Lopez, using the e-mail address “latin. love 69@ live. com” and identifying himself as “Emanuel,” responded to the ad, promising to “take [her] and do something exciting.” He asked for personal details, including her age. “Sara” answered that she was fourteen years old; she said she would understand if he had “a problem with the age thing” but if he was “kool” he should e-mail her back. Lopez responded that he did not have a problem with her age and would treat her like an adult. He said he wanted to get to know her and would love to see a “dirty” picture of her.

Over the next week, they continued to exchange e-mails, and Lopez asked if they could meet in person. In one e-mail, Lopez said, “I want to meet you and talk to you and know about you. Sweety, I believe you are the sweetest person I know and you are real. But, you know, because of your age I have to be careful.” He suggested that they get ice cream, take a walk and talk to get acquainted and said that he “would like to caress [her] a little, a hug, perhaps hold [her] hand, and just be with [her].” “Sara” responded that she thought he wanted to treat her like a woman, not like “a kid.” She insisted that she did not want just “cyber” interaction and that “Emanuel” should just “move on” if he only wanted to talk. Lopez then suggested that she wait in her bedroom when she was alone at home, wearing her sexiest outfit. He described a seduction scene in explicit detail, that included taking her nipple in his mouth, exploring her genitals with his hand, and performing oral sex on her.

They arranged to speak by telephone, and a female officer pretended to be the fourteen-year-old “Sara.” In a following e-mail, “Sara” suggested that they meet at her aunt's house, when no one would be home, and asked “Emanuel” to bring wine coolers for them to drink and contraceptive protection. Lopez arrived at the time and place designated for his rendezvous with “Sara.” Officers arrested Lopez and searched him and his vehicle; he had four condoms and personal lubricant in his possession.

After his arrest, Lopez gave task force officers a statement in which he admitted that he really thought he was communicating with a fourteen-year-old girl. Lopez admitted that he drove two hours to meet with “Sara” and that he went prepared to have sexual relations with her. He admitted that, “right this minute” (at the time officers were interviewing him), if “Sara” were real he “would be molesting a fourteen-year-old girl.”

The indictment charged Lopez with violating OCGA § 16–12–100.2(d), by “intentionally utiliz[ing] a computer Internet service to attempt to seduce and entice ‘Sara,’ a person believed by [him] to be a child, to commit child molestation or aggravated child molestation[,]” (Count 1) ³ and with criminal attempt,

[757 S.E.2d 440]

in that he took a substantial step toward the commission of aggravated child molestation when he “engage[d] in sexually explicit communications with ‘Sara,’ a person believed by [him] to be a fourteen (14) year old female, describe[d] his desire to place his mouth on her vaginal area, arrange[d] a meeting with ‘Sara,’ and arrive[d] at said meeting,” (Count 2).

At trial, Lopez testified in his own defense and claimed that he thought he was communicating with an adult woman who was interested in role playing. He claimed that his intention was to go and “meet the real person that [he] thought [he] was talking to.” He testified that, when he met “Sara” in person, if she had actually turned out to be underaged, he would have walked away from the situation and that he would not have had sex with her. When confronted with his pretrial statement, he claimed that his answers to the officers' questions had been inaccurate or incomplete because he was too nervous and scared to think clearly.

1. Lopez contends that the indictment and verdict are 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.

(a) Although OCGA § 16–12–100.2(d) references an underlying purpose of the prohibited conduct, including, as in this case, child molestation, the principal act proscribed is an act of communication, that is, the solicitation or enticement of another for the underlying purpose. Bolton v. State, 310 Ga.App. 801, 804–805(1), 714 S.E.2d 377 (2011). ⁴ With regard to the victim, by its plain terms the statute is violated if the defendant believes the victim to be a child, even if the person the defendant actually communicates with is not a child. Id.⁵ Furthermore, the statute expressly provides that “[t]he sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under [the] Code section shall not constitute a defense.” OCGA § 16–12–100.2(g). For these reasons, Lopez's argument lacks merit with regard to Count 1.

(b) To convict Lopez of criminal attempt to commit aggravated child molestation as indicted, the State was required to prove that he took a substantial step toward doing any immoral or indecent act to or in the presence of or with any child under the age of sixteen years with the intent to arouse or satisfy the sexual desires of either the child or himself and that the act involved sodomy.

[757 S.E.2d 441]

Castaneira v. State, 321 Ga.App. 418, 423–424(2), 740 S.E.2d 400 (2013); Logan v. State, 309 Ga.App. 95, 99–100(2)(a), 709 S.E.2d 302; see OCGA § 16–6–4. We have held that a conviction of attempted child molestation is authorized where the evidence shows that the defendant communicated with an adult whom the defendant believed to be a child under sixteen years old and took substantial steps to meet with that person to engage in sexual activity that would constitute child molestation. Brown v. State, 321 Ga.App. 798, 800(1), 743 S.E.2d 474 (2013); Castaneira v. State, 321 Ga.App. at 423–424, 740 S.E.2d 400; Logan v. State, 309 Ga.App. at 99–100(2)(a), 709 S.E.2d 302; Smith v. State, 306 Ga.App. 301, 302(1), 702 S.E.2d 211 (2010). Accordingly, Lopez's argument lacks merit as to Count 2.

2. Lopez contends that, as applied, OCGA § 16–12–100.2(d)(1) unconstitutionally restricts speech between consenting adults which is sexual in nature, but not necessarily obscene, “upon the sole justification that one of the adults is pretending to be a child.” He contends that, because the statute requires that a defendant have believed that he was communicating with a child, the law seeks to regulate and criminalize the thoughts of a human being.⁶ Under OCGA § 16–12–100.2(d)(1), however, even if a defendant believes that he or she is communicating with a child, a communication is prohibited only if the defendant engages in the communication for a prohibited underlying purpose, in this case, seducing or enticing a child so that the defendant can commit an act of child molestation. See Division 1(a), supra. Lopez's argument that he was prosecuted under OCGA § 16–12–100.2(d)(1) solely for the content of his thoughts fails.

3. Lopez contends that...