State v. Marshall
Decision Date | 07 July 2010 |
Docket Number | No. A10A0686.,A10A0686. |
Citation | 304 Ga.App. 865,698 S.E.2d 337 |
Parties | STATEv.MARSHALL. |
Court | Georgia Court of Appeals |
Paul L. Howard, Jr., Dist. Atty., Charles P. Boring, Asst. Dist. Atty., for appellant.
Morris P. Fair, Jr., for appellee.
Dejuan Marshall was indicted on one count of criminal attempt to entice a child for indecent purposes. He filed a general and specific demurrer to the indictment, arguing that it was not definite enough to put him on notice of the acts against which he was to defend. The trial court granted Marshall's specific demurrer. The state appeals, arguing that the trial court erred in concluding that the indictment failed to allege the crime charged with sufficient specificity. For the following reasons, we reverse.
See OCGA §§ 16-4-1,2 16-6-5(a).3 The trial court granted Marshall's special demurrer on the ground that the indictment failed to inform Marshall of the “indecent acts” that the state expected to prove, thus depriving him of sufficient information upon which to base his defense.
(Punctuation and footnote omitted.) Barnett, 268 Ga.App. at 901(1), 602 S.E.2d 899. See State v. Austin, 297 Ga.App. 478, 478-479, 677 S.E.2d 706 (2009); Dennard, 243 Ga.App. at 870, 534 S.E.2d 182.
The indictment at issue here was sufficient to survive Marshall's special demurrer because it contained the elements of the crime, informed Marshall of the charges against him, and was specific enough to protect him from double jeopardy. The 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[.]” Lasseter v. State, 197 Ga.App. 498(1), 399 S.E.2d 85 (1990). See OCGA § 16-6-5(a). Because Marshall was charged with criminal attempt, the state was required to allege that, with an intent to commit the underlying crime, he performed some overt act toward its commission. See OCGA § 16-4-1; Wittschen v. State, 259 Ga. 448(1), 383 S.E.2d 885 (1989). See also Groves v. State, 116 Ga. 516, 516-517, 42 S.E. 755 (1902).
Despite Marshall's position that the allegation that he attempted to entice the child victim for the purpose of committing “indecent acts” failed to adequately inform him of his intent as alleged by the state, when read in context, the indictment leaves no doubt that the state sufficiently charged his criminal intent. The appellate courts of this state have previously held that the words “indecent acts” in the context of OCGA § 16-6-5(a) are not so vague and undefined as to prevent a person from recognizing the conduct they forbid. Howell v. State, 172 Ga.App. 805, 806(2), 324 S.E.2d 754 (1984) (). See McCord v. State, 248 Ga. 765, 766, 285 S.E.2d 724 (1982). The language in the challenged indictment tracks the legislative language used in and cites directly to OCGA § 16-6-5(a). See generally Smith v. State, 178 Ga.App. 300(1), 342 S.E.2d 769 (1986) () (citation and punctuation omitted). And, the crime charged in and of itself alerted Marshall to the fact that he was being accused of acting with the intent of engaging in illicit sexual conduct with a minor: Chapter 6 of Title 16 of the Official Code of Georgia Annotated is entitled, “Sexual Offenses,” and OCGA § 16-6-5(a) proscribes the “solicitation of a minor to engage in sexual conduct or conduct which, by its nature, is a sexual offense against a minor.” (Citation and punctuation omitted.) Spivey v. State, 274 Ga.App. 834, 837(2)(a), 619 S.E.2d 346 (2005). See also State v. Vines, 226 Ga.App. 779, 780, 487 S.E.2d 521 (1997) (, )rev'd on other grounds Vines v. State, 269 Ga. 438, 499 S.E.2d 630 (1998). Cf. Hammock v. State, 201 Ga.App. 614, 616(1)(b), 411 S.E.2d 743 (1991) ( ); Chapman v. State, 170 Ga.App. 779, 780(1), 318 S.E.2d 213 (1984) ( ).
Significantly, because Marshall was indicted with criminal attempt to commit the crime of enticing a child for indecent purposes by definition, he fell short of the crime's commission. See Wittschen, 259 Ga. at 448(1), 383 S.E.2d 885. Thus, any evidence of his criminal intent is necessarily implicit. Compare Peavy v. State, 159 Ga.App. 280, 281-282(1)(a)...
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