ELLINGTON, Presiding Judge.
A Catoosa County jury found Emanuel Lopez guilty of using a computer internet service to seduce or entice another person believed by him to be a child for the purpose of committing child molestation and aggravated child molestation, in violation of Georgia's Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, OCGA § 16-12-100.2(d); and attempting to commit a felony, OCGA §§ 16-6-1; 16-6-4(c) (aggravated child molestation). Following the denial of his motion for a new trial,
Viewed in the light most favorable to the jury's verdict,
Over the next week, they continued to exchange e-mails, and Lopez asked if they could meet in person. In one e-mail, Lopez said, "I want to meet you and talk to you and know about you. Sweety, I believe you are the sweetest person I know and you are real. But, you know, because of your age I have to be careful." He suggested that they get ice cream, take a walk and talk to get acquainted and said that he "would like to caress [her] a little, a hug, perhaps hold [her] hand, and just be with [her]." "Sara" responded that she thought he wanted to treat her like a woman, not like "a kid." She insisted that she did not want just "cyber" interaction and that "Emanuel" should just "move on" if he only wanted to talk. Lopez then suggested that she wait in her bedroom when she was alone at home, wearing her sexiest outfit. He described a seduction scene in explicit detail, that included taking her nipple in his mouth, exploring her genitals with his hand, and performing oral sex on her.
They arranged to speak by telephone, and a female officer pretended to be the fourteen-year-old "Sara." In a following e-mail, "Sara" suggested that they meet at her aunt's house, when no one would be home, and asked "Emanuel" to bring wine coolers for them to drink and contraceptive protection. Lopez arrived at the time and place designated for his rendezvous with "Sara." Officers arrested Lopez and searched him and his vehicle; he had four condoms and personal lubricant in his possession.
After his arrest, Lopez gave task force officers a statement in which he admitted that he really thought he was communicating with a fourteen-year-old girl. Lopez admitted that he drove two hours to meet with "Sara" and that he went prepared to have sexual relations with her. He admitted that, "right this minute" (at the time officers were interviewing him), if "Sara" were real he "would be molesting a fourteen-year-old girl."
The indictment charged Lopez with violating OCGA § 16-12-100.2(d), by "intentionally utiliz[ing] a computer Internet service to attempt to seduce and entice `Sara,' a person believed by [him] to be a child, to commit child molestation or aggravated child molestation[,]" (Count 1)
At trial, Lopez testified in his own defense and claimed that he thought he was communicating with an adult woman who was interested in role playing. He claimed that his intention was to go and "meet the real person that [he] thought [he] was talking to." He testified that, when he met "Sara" in person, if she had actually turned out to be underaged, he would have walked away from the situation and that he would not have had sex with her. When confronted with his pretrial statement, he claimed that his answers to the officers' questions had been inaccurate or incomplete because he was too nervous and scared to think clearly.
1. Lopez contends that the indictment and verdict are contrary to law because there was no actual victim and the victim described in the complaint, a fourteen-year-old female named "Sara," was a fiction created by law enforcement agents.
(a) Although OCGA § 16-12-100.2(d) references an underlying purpose of the prohibited conduct, including, as in this case, child molestation, the principal act proscribed is an act of communication, that is, the solicitation or enticement of another for the underlying purpose. Bolton v. State, 310 Ga.App. 801, 804-805(1), 714 S.E.2d 377 (2011).
(b) To convict Lopez of criminal attempt to commit aggravated child molestation as indicted, the State was required to prove that he took a substantial step toward doing any immoral or indecent act to or in the presence of or with any child under the age of sixteen years with the intent to arouse or satisfy the sexual desires of either the child or himself and that the act involved sodomy. Castaneira v. State, 321 Ga.App. 418,
2. Lopez contends that, as applied, OCGA § 16-12-100.2(d)(1) unconstitutionally restricts speech between consenting adults which is sexual in nature, but not necessarily obscene, "upon the sole justification that one of the adults is pretending to be a child." He contends that, because the statute requires that a defendant have believed that he was communicating with a child, the law seeks to regulate and criminalize the thoughts of a human being.
3. Lopez contends that law enforcement agents induced him to enter Catoosa County by subterfuge for the purpose of obtaining venue and, therefore, that venue was not proper in Catoosa County, citing McCarty v. State, 152 Ga.App. 726, 726-727(1), 263 S.E.2d 700 (1979).
4. Lopez contends that his psychological state, specifically, whether he was predisposed to seek sexual relations with minors, was relevant to his defense of entrapment.
Lopez proffered the testimony of Dave Davis, M.D., a forensic psychiatrist who interviewed Lopez and conducted a forensic psychological and psychiatric examination. Lopez intended to call Dr. Davis to testify that, in his opinion, Lopez did not have any psychological tendencies to have sex with minor children and that the police e-mails had the psychological effect of enticing him to commit such crimes.
"If [a] defendant establishes a prima facie case of entrapment, the burden is then upon the State to disprove entrapment beyond a reasonable doubt." (Punctuation and footnote omitted.) Millsaps v. State, 310 Ga.App. 769, 773(3), 714 S.E.2d 661 (2011). One of the elements of entrapment is that "the defendant was not predisposed to commit the crime." (Footnote omitted.) Id. at 772-773(3), 714 S.E.2d 661.
5. Lopez contends and that the State failed to rebut his defense of entrapment. "The determination of whether the defendant was entrapped is for the jury unless
6. Lopez contends that, on several occasions during voir dire and trial, he was excluded from discussions at the bench between the judge, the prosecutor, and his defense counsel, in violation of his constitutional right to be present during all critical stages of the proceedings. The trial transcript suggests that Lopez did not participate in some bench conferences, and, at the hearing on his motion for a new trial, he affirmatively testified that he did not do so. Therefore, there is some support in the record for Lopez's argument that he was not "present" during all stages of the trial. The judge who presided over Lopez's trial found, however, that he had advised Lopez of his right to participate in any bench conference. A defendant is not entitled to a new trial if he acquiesced in limited trial proceedings that occurred in his absence. See Zamora v. State, 291 Ga. 512, 517-520(7), 731 S.E.2d 658 (2012) (A criminal defendant is entitled to be present, and see and hear, all critical stages of the proceedings against him or her, and a discussion about dismissing a juror was such a critical stage. A new trial was not warranted on this basis, however, where the defendant acquiesced in the limited trial proceedings that occurred in his absence.). Furthermore, Lopez has not shown what subjects were discussed at the bench conferences that occurred outside of his presence; therefore, he has not shown any meaningful relationship between his presence or absence at the conferences and his opportunity to defend against the charges against him. Heywood v. State, 292 Ga. 771, 774(3), 743 S.E.2d 12 (2013) (A defendant's absence from a bench conference involving a logistical or procedural matter or an evidentiary objection or other question of law, where the defendant's presence would be useless, does not bear a reasonably substantial relation to the defendant's opportunity to defend against the charges against him or her and, therefore, does not implicate the defendant's constitutional right to be present at proceedings.); Smith v. State, 319 Ga.App. 590, 596-597(6), 737 S.E.2d 700 (2013) (accord). The trial court did not err in denying Lopez's motion for a new trial on this basis.
Judgment affirmed.
PHIPPS, C.J., and McMILLIAN, J., concur.
See also OCGA § 16-12-100.2(b)(1) (As used in the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, a "child" is "any person under the age of 16 years.").
(Citations and punctuation omitted.) 310 Ga. App. at 804-805(1), 714 S.E.2d 377.
(Emphasis added.) See also Keaton v. State, 253 Ga. 70, 72, 316 S.E.2d 452 (1984) (The defendant's "innocent state of mind," that is, his or her lack of a predisposition to commit the crime, is a key element to the defense of entrapment.); Wagner v. State, 220 Ga.App. 71, 72, 467 S.E.2d 385 (1996) ("Because the concept of entrapment involves the predisposition of the accused, the question, like all fact questions, is generally one for the jury to decide.") (citation and punctuation omitted).
(Citation and punctuation omitted; emphasis in original.) Duncan v. State, 232 Ga.App. at 161-162(4), 500 S.E.2d 603.