Dejuan Marshall was indicted on one count of criminal attempt to entice a child for indecent purposes. He filed a general and specific demurrer to the indictment, arguing that it was not definite enough to put him on notice of the acts against which he was to defend. The trial court granted Marshall’s specific demurrer. The state appeals, arguing that the trial court erred in concluding that the indictment failed to allege the crime charged with sufficient specificity. For the following reasons, we reverse. We conduct a de novo review of a trial court’s ruling on a special demurrer in order to determine whether the allegations in the indictment are legally sufficient. State v. Pittman , 302 Ga. App. 531 690 SE2d 661 2010. The indictment alleged that Marshall did attempt to commit the crime of enticing a child for indecent purposes OCGA § 16-6-5, in that said accused did knowingly and intentionally perform an act which constituted a substantial step toward the commission of said crime, to wit: said accused did drive up to the victim, a child less than 16 years of age, and did attempt to entice said child into his vehicle for the purpose of indecent acts, contrary to the laws of said State, the good order, peace and dignity thereof.1 See OCGA § § 16-4-12, 16-6-5 a.3 The trial court granted Marshall’s special demurrer on the ground that the indictment failed to inform Marshall of the “indecent acts” that the state expected to prove, thus depriving him of sufficient information upon which to base his defense.
“The purpose of an indictment is to enable the defendant to prepare his defense intelligently and to protect him from double jeopardy.” Footnote omitted. State v. Barnett , 268 Ga. App. 900 1 602 SE2d 899 2004. A special demurrer is an attack upon the form, as opposed to the substance, of an indictment. See Dennard v. State , 243 Ga. App. 868, 870 534 SE2d 182 2000. Thus, the true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Footnote and punctuation omitted. Barnett , 268 Ga. App. at 901 1. See State v. Austin , 297 Ga. App. 478, 478-479 677 SE2d 706 2009; Dennard , 243 Ga. App. at 870.
