Wetzel v. State

• Decision Date: 02 November 2015
• Docket Number: No. S15A0650.,S15A0650.
• Citation: 298 Ga. 20,779 S.E.2d 263
• Parties: WETZEL v. The STATE.
• Court: Georgia Supreme Court

298 Ga. 20
779 S.E.2d 263

WETZEL
v.
The STATE.

No. S15A0650.

Supreme Court of Georgia.

Nov. 2, 2015.

779 S.E.2d 265

Michael L. Wetzel, Law Office of Michael L. Wetzel, Savannah, Colin Hunter Moriarty, Moriarty Law, PC, Athens, for appellant.

Kristopher Michael Bolden, Western Judicial Circuit District Attorney's Office, Athens, Kenneth W. Mauldin, Dist. Atty., Western Judicial Circuit District Attorney's Office, Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Department of Law, for appellee.

NAHMIAS, Justice.

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Appellant Jeremy Wetzel was a high school paraprofessional who engaged in highly inappropriate, sexually oriented electronic

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communications with a 15–year–old student, which included emailing her two photographs of his erect penis. The question in this case is whether Wetzel's conduct, as it was alleged in the indictment the State brought against him, violated the criminal statutes with which he was charged. At trial, the jury acquitted Wetzel of child molestation in violation of OCGA § 16–6–4(a) (2) (Count 2), but it convicted him of computer pornography and child exploitation in violation of OCGA § 16–12–100.2(d)(1) (Count 1) and of electronically furnishing obscene material to a minor in violation of OCGA § 16–12–100.1(b) (Count 3).

The computer pornography conviction was based on the State's argument at trial that the jury gets to decide whether, in its opinion, Wetzel's conduct should be deemed "an unlawful sexual offense against a child," as that phrase is used in OCGA § 16–12–100.2(d)(1). But it is a bedrock principle of Georgia law that only the legislature can prescribe what conduct will be deemed criminal, and it is also fundamental that a person may be found guilty only of crimes that were defined before he committed the allegedly illegal acts. Because the State misled the jury on this point and the trial court's jury instructions did nothing to correct that misinformation, Wetzel's conviction on Count 1 must be reversed. Wetzel's challenges to his conviction on Count 3, however, are meritless, so we affirm that conviction.

1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. Wetzel was a paraprofessional for special education students at North Oconee High School. He also helped with a club whose student members worked with special education students at the school. S.B.J. first met Wetzel through the club, which she joined in the fall of her sophomore year at North Oconee. S.B.J. was 15 years old; Wetzel was 24. They became Facebook friends and started chatting online.

On the evening of November 15, 2011, shortly after their Facebook communications

779 S.E.2d 266

began, S.B.J. used the cell phone number Wetzel posted on Facebook to begin exchanging text messages with him. When S.B.J.'s cell phone stopped sending and receiving texts at 10 p.m. that night because of a restriction her parents had set on her phone, she switched to communicating with Wetzel via a text messaging app on her sister's iPod Touch, which can connect to the internet and download apps but cannot make phone calls. Wetzel and S.B.J. exchanged text messages until 1:50 a.m. S.B.J. then texted Wetzel again after waking up on November 16, and resumed texting him when she got home from school that day. S.B.J. characterized the

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communications on Facebook and the initial text messages as "normal, casual conversations," but by the evening of November 16, the discussions became sexual in nature.

At some point that night, Wetzel asked S.B.J. by text about what size penises she had seen. He then attempted to text her a picture of his penis, but her iPod texting app could not receive pictures. So Wetzel switched to email and around 11 p.m., he used his cell phone to send two photographs from his Hotmail address to S.B.J.'s Gmail address. One picture showed Wetzel's nude torso with an erect penis and the other was a close-up of just his erect penis. S.B.J. testified that a couple of days later, Wetzel sent her more pictures¹ and asked her via text message, "What do I get in return?" S.B.J. testified that she then took two pictures of herself topless (one wearing sweat pants and one wearing only underwear) and sent them electronically to Wetzel. Their communications continued for a few more days, ending when Wetzel indicated that he wanted to resume a relationship with his former girlfriend.

On December 6, 2011, S.B.J. showed the November 16 pictures of Wetzel to two of her friends. The next day, those friends reported the pictures to a teacher. Wetzel and S.B.J. were interviewed by school administrators, and S.B.J. showed the principal the November 16 emails with the pictures, which were still in her trash folder. Wetzel was then terminated and told to leave the school. The police were notified, and he was arrested later that day. Two days later, the police obtained a search warrant for Wetzel's house and identified his bathroom as the background of the pictures. His cell phone and laptop computer were taken into custody, but no evidence of his communications with S.B.J. was found on them. His cell phone records obtained from his provider, however, showed numerous texts to and from S.B.J.'s cell phone number and the number linked to the iPod's texting app. The two naked photographs of Wetzel from November 16 were recovered from S.B.J.'s Gmail account. The text messages sent to and from the iPod could not be downloaded from the app, but a few texts that had been sent between Wetzel and S.B.J. in the early morning hours of December 1 were recovered by taking pictures of the iPod screen showing the texts. At trial, S.B.J. testified that she and Wetzel never had any inappropriate physical contact.

Wetzel was indicted for computer pornography, tracking the language of OCGA § 16–12–100.2(d)(1) (Count 1); child molestation,

298 Ga. 23

tracking the language of OCGA § 16–6–4(a)(2) (Count 2); and electronically furnishing obscene material to minors, tracking the language of OCGA § 16–12–100.1(b)(1)(A) (Count 3). Before trial, Wetzel filed a timely general demurrer as to all counts, raising both constitutional and non-constitutional claims, which the trial court denied. After a four-day trial from May 28 to 31, 2013, the jury acquitted Wetzel on Count 2 but found him guilty on Counts 1 and 3. The trial court sentenced him to eight years, to serve two years in prison, on Count 1 and one concurrent year in prison on Count 3. Wetzel filed a timely notice of appeal.²

779 S.E.2d 267

2. We first consider Wetzel's challenges to his conviction for violating OCGA § 16–12–100.2(d)(1). In Count 1 of the indictment, the State alleged that Wetzel

did intentionally utilize an electronic device, to wit: a cellular phone, to seduce, solicit, and entice [S.B.J.], a child under 16 years of age, to engage in the sending and receiving of nude photographs, conduct that is, by its nature, an unlawful sexual offense against a child; in violation of OCGA § 16–12–100.2(d) [.]

This charge tracks the language of the 2011 version of the statute, which made it unlawful for any person

to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16–6–2, relating to the offense of sodomy or aggravated sodomy; Code Section 16–6–4, relating to the offense of child molestation or aggravated child molestation; Code Section 16–6–5, relating to the offense of enticing a child for indecent purposes; or Code Section 16–6–8, relating to the offense of public indecency or to

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engage in any conduct that by its nature is an unlawful sexual offense against a child.

OCGA § 16–12–100.2(d)(1). A "child" is defined as "any person under the age of 16 years." OCGA § 16–12–100.2(b)(1).³

(a) Most of Wetzel's challenges to his conviction under OCGA § 16–12–100.2(d)(1) focus on his disagreement with the State over the meaning of the final clause in the statute—"or to engage in any conduct that by its nature is an unlawful sexual offense against a child." At trial and in his initial briefs to this Court, Wetzel principally argued, contrary to basic principles of grammar and logic, that this phrase relates only to violations of OCGA § 16–6–8.⁴ Wetzel based this argument on the fact that the statute says that it is a crime to use an electronic device to seduce a child in order to violate " Code Section 16–6–8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child," with no punctuation separating the two phrases.⁵...