Weyer v. State

• Decision Date: 06 August 2015
• Docket Number: No. A15A1258.,A15A1258.
• Parties: WEYER v. The STATE.
• Court: Georgia Court of Appeals

333 Ga.App. 706

776 S.E.2d 304

WEYER

v.The STATE.

No. A15A1258.

Court of Appeals of Georgia.

Aug. 6, 2015.

Jennifer Adair Trieshmann, Maryellen Simmons, for Appellant.

Robert William Mooradian, Asst. Dist. Atty., Peter J. Skandalakis, Dist. Atty., for Appellee.

Opinion

BARNES, Presiding Judge.

A jury found Jamie Lee Weyer guilty of two counts of sexual exploitation of children, and the trial court denied his amended motion for new trial. On appeal, Weyer contends that the evidence was insufficient to support his convictions and that the trial court committed plain error by failing to define the word “entice” when requested to do so by the jury. For the reasons discussed below, we affirm.

1. We first address the sufficiency of the evidence.

When we consider whether the evidence is sufficient to sustain a conviction, we ask whether any rational jury could have found proof beyond a reasonable doubt of the guilt of the defendant in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to weigh the evidence, pass upon the credibility of witnesses, and resolve conflicts in the evidence. So, if the record contains some competent evidence sufficient to prove beyond a reasonable doubt each element of the crime of which the defendant was convicted, we must uphold the conviction, even if the evidence is contradicted.

(Citations omitted.) Copeny v. State, 316 Ga.App. 347(1), 729 S.E.2d 487 (2012).

Viewed in the light most favorable to the verdict, the evidence showed that on August 9, 2012, the teenage child A.M., who lived with her grandmother, was at home in her bedroom with her cousin, H.M., who was spending the night. A.M. and H.M. were both 16 years old. The grandmother's boyfriend, Weyer, also was at the house, but in a different room. Weyer, who was 49 years old, had known A.M. since she was five and H.M. since she was “little.”

Around 10:20 p.m., Weyer began sending text messages to A.M. in which he requested nude photographs of her and H.M. Weyer continued sending text messages until shortly after midnight and then started again the next morning. A.M. and H.M. later testified that Weyer's text messages scared them. H.M. was afraid Weyer “was going to come in the room to us” after he made the request for photographs.

With respect to the text messages at issue, Weyer initially texted A.M., “I've been really good to yall latley right?”¹ When A.M. did not answer, Weyer wrote, “I want something but im afraid to ask-nuthin physical!” A.M. replied, “Tell me,” and Weyer responded, “no—its not right—but i love thinkin about it” and emphasized that A.M. could not tell her grandmother.² After A.M. promised that she would not tell, Weyer texted, “i want sum pics of you and [H.M.]!” A.M. asked Weyer what kind of photographs he wanted, and Weyer replied, “Idk-i think you do, but i don't wqnt no problems!” When A.M. again asked what kind of photographs he wanted, Weyer wrote, “NAKED—i want to see your fine asses and tits naked” and promised that he would hide the photographs.

A.M. indicated to Weyer that she was afraid that her grandmother would see the photographs if she took them on her phone. Weyer wrote in response that he could provide A.M. with his phone. A.M. replied, “Not now. Have to get a shower....” Weyer wrote back, “Okay,” and then “Tell me what to do!” followed by “I can wait!! I've been watching this long. ok.”

A.M. then sent Weyer a photograph of herself in a bikini. Weyer responded, “PLEASE! more baby!:-)” and “i want more please!” A.M. wrote back that she was busy, to which Weyer replied, “Ok-sorry not tryin to push. we will have ops for more-ihope thats what you want to.” A.M. wrote, “K,” and Weyer responded, “Thank you!:-).”

A few minutes later, Weyer texted A.M. to ask if she was “freaking out” and if she could “send sum from [H.M.'s] phone.” When A.M. did not respond, Weyer wrote, “Please tell me sumthin” and then, “Please!” A.M. replied, “I'm not freakin out. I'm sleepin.” Weyer texted back, “ok-your not afraid of me are ya?,” and A.M. replied, “No.” Weyer then wrote that he loved the photograph A.M. had sent him and asked her if she could “send more from [H.M.'s] phone.” After receiving no response, Appellant texted A.M., “Your [grandmother] is asleep—im in the bathroom—you could come get my phone,” and then wrote, “C'mon look what i do for you:-).” With no response from A.M., Weyer concluded by texting, “Okay but promise you will in the future!” A.M. did not respond to Weyer's final text that night.

The next morning, Weyer was sitting on the front porch when A.M. and H.M. were leaving the house to drive to school. When Weyer saw A.M. and H.M., he said, “Have a good day, girls,” and winked at them. After A.M. and H.M. got in the car, they noticed that a pack of cigarettes and Weyer's lighter had been placed in the middle console area.

As A.M. and H.M. drove to school, Weyer sent several text messages to them referring to his prior request for photographs and asking if they were upset with him. When Weyer texted H.M. to ask whether she would send him any photographs, H.M. replied, “Hell no.” Weyer then wrote, “aww to bad for me but are we cool?,” and HM responded, “Ya.” Weyer texted back, “good! Hate to think we wasnt—hope you change your mind—i can hide em:-).” H.M. replied, “Jamie im 16?,” and thereafter noted that A.M. was the same age. Weyer ended the exchange by texting, “Cant blame a guy for tryin! hope we still cool bot everything else.:-),” and “good wouldnt want iit any other way!:)”

After A.M. and H.M. arrived at school, they spoke to the high school resource officer about the text messages sent by Weyer. The resource officer contacted a police investigator, who interviewed A.M. and H.M. and took possession of their phones. A forensic analysis subsequently was conducted of the phones, resulting in the successful retrieval of the relevant text messages and the photograph that A.M. had sent to Weyer.

The police investigator procured an arrest warrant and arrested Weyer later that same day. Weyer spoke with an investigator after he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Weyer told the investigator that he had been drinking alcohol that night, admitted that he exchanged text messages with A.M. and H.M., and provided a cell phone number for himself that matched the number from which the relevant text messages had originated. However, Weyer claimed that he could not remember the content of the messages that he had sent and denied that he ever provided A.M. or H.M. with cigarettes.

The police investigator obtained Weyer's phone, and a forensic analysis was performed of its contents. While none of the relevant text messages between Weyer and A.M. or H.M. could be found on Weyer's phone, Weyer admitted that he had deleted some of his messages. But Weyer had not deleted from his phone the photograph of A.M. in a bikini that she had sent him.

Weyer was indicted on two counts of sexual exploitation of children for enticing A.M. and H.M. to take nude photographs of themselves. A jury trial ensued at which A.M. and H.M. testified to events as summarized above. In addition to their testimony regarding the incident in question, A.M. and H.M. testified about previous interactions they had with Weyer. A.M. testified that earlier that summer, Weyer had slapped her on the buttocks with his hand, commenting that her shorts were too short. H.M. testified that on a prior occasion, she was sitting alone with Weyer on the back porch, and he began speaking to her with his face close to her face. When H.M. tried to move away, Weyer had replied, “No, baby, come here.” Both A.M. and H.M. further testified that on previous occasions that summer, Weyer had provided them with cigarettes and allowed them to smoke in his presence.

The State also called the police investigator involved in the case and introduced expert testimony regarding the forensic analysis of the phones, as well as printouts of the relevant text messages and the photograph of A.M. in a bikini that she had sent to Weyer. Additionally, the State introduced and played for the jury a video recording of Weyer's interview with the police investigator. Weyer elected not to testify and did not call any defense witnesses.

After the close of the evidence and the charge of the court, the jury found Weyer guilty of both charged offenses. Weyer filed a motion for new trial, as amended, and the trial court denied the motion. This appeal followed.

Under Georgia's sexual-exploitation-of-children statute, “[i]t is unlawful for any person knowingly to ... entice ... any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.” OCGA § 16–12–100(b)(1). “Sexually explicit conduct” is defined to include the “[l]ewd exhibition of the genitals or pubic area of any person [.]” OCGA § 16–12–100(a)(4)(D). “Visual medium” is defined as “any film, photograph, negative, slide, magazine, or other visual medium[,]” OCGA § 16–12–100(a)(5), and “minor” is defined as any person under 18 years old. OCGA § 16–12–100(a)(1).

Count 1 of the indictment alleged in relevant part that Weyer committed sexual exploitation of children by enticing A.M. “to engage in sexually explicit conduct, to wit: take off her clothing and take a photography of herself naked, for the purpose of producing a digital photograph, a visual medium depicting such conduct.” Count 2 of the indictment alleged that Weyer committed sexual exploitation of children by enticing H.M. in the same manner.

(a) Weyer contends that there was insufficient evidence to support his convictions because the State failed to prove that any photographs showing the lewd exhibition of the genitals or pubic area of A.M. or H.M. were ever taken and transmitted to him. Weyer emphasizes that the only...