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YES, YOUR FUTURE COULD BE CONTROLLED BY A COMMA

Posted by Ben Sessions | Sep 15, 2015 | 0 Comments

Wetzel v. The State was argued before the Georgia Supreme Court on September 15, 2015. This case may very turn on the use or failure to use a comma. Yes, the result of a criminal case may very well be dictated by the failure to include a comma in the prior version of a statute that criminalize electronic dissemination of nude pictures to minors.

It shall be unlawful for any person intentionally or willfully to utilize a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, instant messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child, another person believed by such person to be a child, any person having custody or control of a child, or another person believed by such person to have custody or control of a child to commit any illegal act by, with, or against a child as 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 engage in any conduct that by its nature is an unlawful sexual offense against a child.

At the time of Wetzel's alleged violation in 2011, the version of O.C.G.A. § 16-12-100.2 (d)) which applied in this case, stated: “It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service…to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure or entice 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 engage in any conduct that by its nature is an unlawful sexual offense against a child.”

Wetzel was formerly a teacher's aide and he was convicted in Oconee County for electronically sending nude pictures of his genitals to a 15-year-old girl. Wetzel sent a text to a 15-year old student asking her what size penises she had seen, and his messages became more sexual in nature. He then attempted to send her photos of an erect penis via his cell phone, but after running into difficulty, he sent two emails to her from his own Hotmail address to her Gmail address. S.B.J. testified that a couple of days later, he sent her more pictures and asked via text message, “What do I get in return.” S.B.J. testified she then took two pictures of herself topless and sent them electronically to Wetzel.

Wetzel was convicted of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007 (Georgia Code § 16-12-100.2 (d)) for using a cell phone to solicit a child under 16 to send and receive nude photos, and for electronically furnishing obscene material to a minor. He was acquitted of child molestation stemming from the sending of electronic images of a sexual nature.

COMPUTER PORNOGRAPHY CHARGES IN GEORGIA: WHAT EXACTLY ARE THEY FIGHTING OVER IN WETZEL?

The argument in Wetzel centers around whether the final (5th) provision in O.C.G.A.§ 16-12-100.2 (d) (1) alleges a separate means by which the law may be violated, or is “conduct that by its nature is an unlawful sexual offense against a child” simply inclusive of the other 4 ways in which O.C.G.A.§ 16-12-100.2 (d) (1) may be violated.

Wetzel argued “there are only four ways by which it is unlawful for one to solicit, seduce, or entice a minor to commit or engage in any illegal act, there are in fact five ways set out in the statute.” Engaging in “conduct that by its nature is an unlawful sexual offense against a child' is the fifth method by which an individual may commit computer pornography under O.C.G.A.§ 16-12-100.2 (d) (1), and is separate and distinct from the reference in the statute to public indecency,” despite the lack of a comma or semi-colon between the two. And by “sending pictures of male genitals via e-mail using his cellular phone to S.B.J., Appellant [i.e.Wetzel] utilized an electronic device to seduce, solicit, or entice S.B.J. to engage in conduct that is by its nature an unlawful sexual offense against a child.”

That's right. The real issue in this appeal centers around the lack of a comma in a statute.

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The Sessions Law Firm
1447 Peachtree St NE #530
Atlanta,
GA
30309

Phone: 470-225-7710

About the Author

Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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