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Warren v. State

The act alleged in the defendant's indictment—sending an unsolicited nude image of his genitals from his cell phone to the victim's cell phone—was not criminalized under O.C.G.A. § 16-12-81.

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Appellant Charles Warren was indicted for violating OCGA § 16-12-81, with the indictment alleging that he sent an unsolicited text message containing an image of his genitalia to an adult female without notifying her that the message contained nudity. Appellant filed a general demurrer, arguing that § 16-12-81 does not criminalize his conduct, and three motions to quash the indictment, raising various constitutional challenges to the statute. The trial court denied appellant’s demurrer and his motions to quash, and he now appeals. Appellant is correct that OCGA § 16-12-81 does not criminalize his conduct. The trial court therefore erred in denying his general demurrer. Because the indictment must be dismissed for this reason, we need not address appellant’s constitutional challenges to the statute.

1. Appellant contends that the trial court erred in denying his general demurrer to the indictment, because the act alleged in the indictment—the sending of a nude image of his genitals from his cell phone to the victim’s cell phone—is not prohibited by OCGA § 16-12-81. We agree.

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