State v. Vines , 226 Ga. App. 779 ( 1997 )

Andrews, Chief Judge.

Donnie E. Vines was indicted for the offense of child molestation. Vines filed a general demurrer to the indictment contending the allegation that he engaged in a sexually explicit telephone conversation with a child with the intent to arouse and satisfy his sexual desires was insufficient to allege the offense of child molestation as set forth in OCGA § 16-6-4 (a). The trial court sustained the demurrer and dismissed the indictment. The State appeals pursuant to OCGA § 5-7-1 (a) (1).

The indictment charged that Vines committed the offense of child molestation by “performing] an immoral and indecent act to [L. N.], a child under the age of sixteen (16) years, with intent to arouse and satisfy the sexual desires of said accused by calling said child on the telephone and engaging in conversation about sexual acts that included fondling of private parts, intercourse and oral sodomy. . . .” The offense of child molestation is defined in OCGA § 16-6-4 (a) as follows: “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Vines contends that the offense of child molestation cannot be committed by means of a telephone conversation. Specifically, he contends that, under the child molestation statute, the offense must be committed in the physical presence of the child and that speech alone, unaccompanied by other action, is insufficient to satisfy the statutory requirement that the accused perform an immoral or indecent “act.”

Addressing the “act” requirement first, we find no merit in Vines’ contention that the indictment failed to allege that he committed an immoral or indecent “act” as contemplated by OCGA § 16-6-4 (a). Vines argues that, since the indictment merely alleges he spoke to the child and fails to allege other action taken by him, he committed no “act” as defined by the statute. Under OCGA § 16-2-1, “[a] ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” A statute may or may not use the word “act” in defining a particular offense. In those that do use it, the word “act” is used to refer to various types of physical movement and speech. In some statutes “act” may be limited to a particular kind of physical movement. For example, a person commits the offense of prostitution by performing “an act of sexual intercourse for money.” OCGA § 16-6-9. Other statutes use the word “act” to refer to both acts of speech and other physical movements. For example, “[a] person commits the offense of pimping when he performs any of the following acts: (1) Offers or agrees to procure a prostitute for another; ... or (4) Receives money or other thing of value from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution.” OCGA § 16-6-11. Thus, depending on the statute at issue, “an act sufficient for criminal liability may consist of nothing more than the movement of the tongue so as to form spoken words.” 1 LaFave & Scott, Substantive Criminal Law, § 3.2 (b) (1986).

The statute defining the offense of child molestation refers generally to the commission of an “immoral or indecent act” without reference to any particular physical movement or speech and without any other specific limitation on the type of act. It does not, for example, require that the act involve physical contact with the child which is necessary for the commission of the offense of sexual battery as set forth in OCGA § 16-6-22.1. Although the majority of child molestation convictions have involved some form of physical contact between the molester and the victim, we have affirmed convictions involving speech and other actions in which there was no physical contact. Smith v. State, 178 Ga. App. 300, 301 (342 SE2d 769) (1986) (in one count of the indictment, the accused showed and described the use of a condom to the child and the child observed him having an erection, and, in another count, the accused observed the child use a mechanical vibrator on her genital area); Thompson v. State, 187 Ga. App. 563 (370 SE2d 819) (1988) (accused required child to dance naked in front of him); Blanton v. State, 191 Ga. App. 454 (382 SE2d 133) (1989) (accused exposed himself to child and asked child to get into a car with him). In so doing, we have held that the child molestation statute “proscribes acts which offend against [the public’s] sense of propriety as well as affording protection to a child’s body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature. A child’s mind may be victimized by molestation as well.” Smith, supra at 301; Thompson, supra. The child molestation statute (OCGA § 16-6-4) and the statutes prohibiting statutory rape (OCGA § 16-6-3) and enticement of children for indecent purposes (OCGA § 16-6-5) were enacted as part of a general legislative scheme to protect children under the age of 16 from physical and psychological damage resulting from sexual exploitation. Roe v. State Farm Fire &c. Co., 188 Ga. App. 368, 369 (373 SE2d 23) (1988); Coker v. State, 164 Ga. App. 493, 494 (297 SE2d 68) (1982); Barnes v. State, 244 Ga. 302, 305 (260 SE2d 40) (1979).

In construing whether the conversation alleged in the indictment is a type of “immoral or indecent act” prohibited by OCGA § 16-6-4 (a), we consider the above-stated purpose of the statute as a whole. D. G. D. v. State of Ga., 142 Ga. App. 266, 267 (235 SE2d 673) (1977). With that purpose in mind, we have no doubt the indictment alleging that Vines initiated a conversation with the child about sexual acts including fondling of private parts, intercourse and oral sodomy with the intent to arouse and satisfy his sexual desires alleges an immoral or indecent act which the child molestation statute was enacted to prohibit. The sexually exploitative nature of the alleged act is not altered by the fact that it involved speech unaccompanied by other acts. Accordingly, the allegation of the conversation alone, without any further allegation of physical contact with the child or other conduct by Vines, was sufficient to satisfy the statutory requirement in OCGA § 16-6-4 (a) that the accused committed an “immoral or indecent act.”

Likewise, we find no merit to the contention that OCGA § 16-6-4 (a) does not prohibit an immoral or indecent act committed by an accused in a telephone conversation with a child. The statute prohibits “any immoral or indecent act to or in the presence of or with any child under the age of 16 years. . . .” Although the language of the statute obviously applies to acts committed in the physical presence of the child, it does not require such physical presence, and the language is clearly broad enough to apply to an act committed by communication in a telephone conversation between the accused and the child.

The mere fact that the alleged conversation was communicated by telephone rather than in the physical presence of the child does not change the sexually exploitative and psychologically damaging nature of the act and thus does not remove it from the scope of acts prohibited by OCGA § 16-6-4 (a). See Usher v. State, 143 Ga. App. 843, 844 (240 SE2d 214) (1977) (rejected the defendant’s contention that a terroristic threat communicated by telephone was not prohibited by OCGA § 16-11-37). A similar conclusion was reached in People v. Imler, 11 Cal. Rptr. 2d 915 (Cal. App. 2 Dist. 1992), a California case involving attempted child molestation by telephone. In California, touching of the child, either by the accused or by the child himself at the instigation of the accused, is a necessary element of the offense of child molestation which is defined as committing any “lewd or lascivious act . . . upon or with the body ... of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the accused] or the child. . . .” Cal. Penal Code, § 288; id. Imler called the child on the telephone, falsely told the child he was holding his father hostage, and repeatedly told the child to disrobe and touch his penis. The child did not comply and eventually hung up. Although Imler was not charged with committing child molestation under the California statute, the court affirmed his conviction for attempting to molest the child by speaking to the child over the telephone and held that Imler’s physical presence with the child was not required. Id.

Lastly, we find no merit to Vines’ contention that the legislature did not intend to proscribe the alleged telephone conversation under the child molestation provisions of OCGA § 16-6-4 (a) because such telephone conversations are specifically prohibited by the disorderly conduct provisions of OCGA § 16-11-39 (a) (4). Under the latter statutory provision, “[a] person commits the offense of disorderly conduct when such person[,]. . . [w]ithout provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.” “The proscription of [OCGA § 16-11-39 (a) (4), formerly OCGA § 16-11-39 (2)] rests upon the apparent legislative determination that, given the ‘facts and circumstances’ of an unprovoked employment of a certain type of language within the hearing of certain young listeners, there is potential for an immediate breach of the peace.” Crolley v. State, 182 Ga. App. 2, 3 (354 SE2d 864) (1987). Thus, this provision of the disorderly conduct statute was intended to protect against the anger and violent response the use of such language within the hearing of children may tend to provoke. The child molestation statute, which was enacted to protect children from physical and psychological damage resulting from sexual exploitation, has a different purpose and different elements of proof.

The trial court erred in sustaining the demurrer and dismissing the indictment.

Judgment reversed.

McMurray, P. J, and Birdsong, P. J., concur. Beasley, Ruffin and Eldridge, JJ, concur specially. Smith, J., dissents.