                               THIRD DIVISION
                              ELLINGTON, P. J.,
                         DILLARD and MCFADDEN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                      June 16, 2015




In the Court of Appeals of Georgia
 A15A0280. SKELHORN v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Andrew Skelhorn was convicted of three counts of violating

OCGA § 16-12-100.2, the Computer or Electronic Pornography and Child

Exploitation Prevention Act of 2007. He appeals his convictions, arguing that the

state failed to prove that he used a “computer on-line service” as alleged in the

obscene Internet contact counts of the indictment. We find that the evidence was

sufficient to prove that Skelhorn used an on-line messaging service, which the statute

expressly includes in the list of examples of computer on-line services. Skelhorn

argues that count one of the indictment, which charged him with using an Internet

chat room to attempt to solicit, lure, and entice a child, was defective because it failed

to allege the use of a computer on-line service. An Internet chat room is expressly
listed as a kind of computer on-line service, so the indictment was not defective. For

this reason, we reject Skelhorn’s argument that the trial court should have included

the term “computer on-line service” when it instructed the jury on this count. We

agree with Skelhorn that this count required proof that he took a substantial step

toward committing the crime, but we find that the evidence was sufficient to allow

a jury to find that he took a substantial step. Finally, Skelhorn argues that the trial

court erred by denying his motion to suppress. By affirmatively stating that he had no

objection to the admission of the evidence he sought to suppress, he has waived this

argument. We therefore affirm the convictions.

      1. Evidence.

      The evidence, on appeal from a criminal conviction,

      must be viewed in the light most favorable to the verdict, and the
      defendant no longer enjoys the presumption of innocence; moreover, an
      appellate court does not weigh the evidence or determine witness
      credibility but only determines whether the evidence is sufficient under
      the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61
      LE2d 560) (1979).


Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation omitted).




                                          2
      So viewed, the evidence showed that on August 12, 2010, an investigator with

the Newton County Sheriff’s Office entered a Yahoo! chat room called Georgia

Romance. The investigator used the screen name “aimee_13cheer@yahoo.com.” She

was approached by Skelhorn, who was using the screen name “ukcru77 (Andrew

Skelhorn).” Skelhorn told aimee_13 that he was feeling “a lil horney”1 and asked if

she had any pictures of herself or a webcam. When she said she did not, Skelhorn told

her that he was “hard as a rock,” that he had a webcam so she could see him if she

wanted, and that he “like[d] to be seen.”

      Skelhorn sent aimee_13 a link inviting her to view the feed from his webcam.

Aimee_13 accepted the invitation to start the webcam. The webcam showed a naked

Skelhorn masturbating. The state introduced into evidence screen shots of the

webcam display. Skelhorn continued to masturbate while he and aimee_13 were

engaged in their Internet communication.

      Skelhorn asked aimee_13 where she lived and asked her to take a picture of

herself for him using her cell phone. He asked aimee_13 her age, and she said she was

13. He then asked her a series of crude, explicit questions about her physical


      1
       We have quoted the communications between Skelhorn and aimee_13 exactly
as they appear, including any spelling or other errors.

                                            3
appearance, sexual preferences, and sexual experience, including whether her genitals

were hairless, whether she liked penises, whether she engaged in fellatio, and whether

she was a virgin. He asked aimee_13 what she was wearing, asked whether she ever

had penetrated herself digitally and told her to “ddo iut now.” Skelhorn asked

aimee_13 whether she could fit his penis in her mouth, and then explained that he

would ejaculate on her and then would perform cunnilingus on her. He asked

aimee_13 to taste herself and describe the taste, explaining that he “wioll taaste mine

4 u” when he ejaculated, which was imminent.

      Skelhorn then told aimee_13 that they “should meet one night.” When she

asked how, he said that he would “drive down there meet you at like a wendy. drive

around. suck and lick.” Skelhorn described in explicit detail the activity in which they

would engage once they met. He asked aimee_13 if she wanted his telephone number,

asked whether she would call him, and gave her his number. He concluded the

communication by explaining that he would ejaculate “very soon” and asked “can u

seee good.” He then ejaculated and licked his finger.

      Skelhorn sent aimee_13 a message on August 17, but the investigator was not

on-line to receive it. Skelhorn contacted aimee_13 again on January 3, 2011 using

Yahoo! Messenger. They connected, aimee_13 accepted his invitation to watch his

                                           4
webcam feed, and again Skelhorn masturbated while displaying himself via webcam

and chatting with aimee_13. The chat was sexually explicit, and Skelhorn described

in detail what he would do to aimee_13. He also gave her his cell phone number

again.

         After these interactions, the investigator requested a copy of Skelhorn’s

driver’s license from the Department of Driver Services, and the picture on the license

matched the image of the man shown on the webcam. The driver’s license gave an

address in Cumming, Georgia, which is where Skelhorn had told aimee_13 he lived.

A Forsyth County investigator drove by the residence, where he saw two vehicles that

were registered to Skelhorn. The Newton County investigator obtained a search

warrant for the residence and executed it. She also obtained a recorded statement

from Skelhorn, which was played for the jury.

         2. Obscene Internet contact with a child.

         Skelhorn argues that use of a computer on-line service is an essential element

of the crime of obscene Internet contact with a child, and that although the state

alleged that element in the indictment for these counts, it failed to prove the

allegation. We disagree.



                                            5
        The indictment charged Skelhorn with violating OCGA § 16-12-100.2 (e) by

having sexually explicit verbal and visual contact with a person he believed to be a

child “by way of an on-line messaging service provided by a computer on-line

service.” The statute in effect at the time of the offense provided:

        A person commits the offense of obscene Internet contact with a child
        if he or she has contact with someone he or she knows to be a child or
        with someone he or she believes to be a child via a computer on-line
        service or Internet service, including but not limited to a local bulletin
        board service, Internet chat room, e-mail, or on-line messaging service,
        and the contact involves any matter containing explicit verbal
        descriptions or narrative accounts of sexually explicit nudity, sexual
        conduct, sexual excitement, or sadomasochistic abuse that is intended
        to arouse or satisfy the sexual desire of either the child or the person,
        provided that no conviction shall be had for a violation of this
        subsection on the unsupported testimony of a child.


Former OCGA § 16-12-100.2 (e) (1) (emphasis supplied). (This subsection of the

statute was amended effective July 1, 2013, among other things, to replace the phrase

“computer on-line service” with “computer wireless service.” See Ga. L. 2013, p. 663,

§ 3.)

        Although the statute did not expressly define the term “computer on-line

service,” it gave specific examples of a computer on-line service in the following


                                            6
clause, providing that a computer on-line service “includ[es] but [is] not limited to a

local bulletin board service, Internet chat room, e-mail, or on-line messaging service.”

In other words, the statute defined computer on-line service by illustration. See

generally Berryhill v. Georgia Community Support & Solutions, Inc., 281 Ga. 439,

442 (638 SE2d 278) (2006) (legislature’s use of phrase “includes but is not limited

to” indicates an intent to broadly illustrate or enlarge). “[S]tatutes are to be construed

in accordance with their real intent and meaning and not so strictly as to defeat the

legislative purpose.” In the Interest of T. H., 258 Ga. App. 416, 420 (2) (574 SE2d

461) (2002).

      With these principles in mind, we conclude that the statute lists an on-line

messaging service as a specific type of computer on-line service, and that the

legislature did not intend to establish both the use of a computer on-line service and

the use of an on-line messaging service as essential elements that have to be

separately proved in order to convict a defendant of obscene Internet contact with a

child. Accordingly, the indictment charging Skelhorn with using an on-line

messaging service encompassed that element of the crime. And the evidence adduced

at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable

doubt that Skelhorn used an on-line messaging service to contact a child with explicit

                                            7
verbal and visual depictions of sexual conduct. Jackson v. Virginia, 443 U. S. 307,

319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

      3. Use of a computer to attempt to lure.

      Skelhorn makes three arguments specific to count one of the indictment, which

alleged that he “did willfully use an Internet chat room to attempt to solicit, lure, and

entice [a named law enforcement officer], posing as aimee__13cheer@yahoo.com,

a person believed by [Skelhorn] to be a 13 year old child, to engage in the act of

aggravated child molestation by [Skelhorn] asking to meet said person for the purpose

of [Skelhorn] to perform oral sodomy on said person . . .” in violation of OCGA § 16-

12-100.2 (d) (1). Skelhorn argues that the state was required but failed to prove that

he used a computer on-line service; that the trial court should have included the

phrase “computer on-line service” in its charge to the jury on this count; and that the

state failed to prove that he took a substantial step toward committing the crime. We

reject these arguments.

      (a) Computer on-line service

      The version of the statute in effect at the time provided:

      It shall be unlawful for any person intentionally or willfully to utilize a
      computer on-line service or Internet service, including but not limited


                                           8
      to a local bulletin board service, Internet chat room, e-mail, on-line
      messaging service, or other electronic device, to seduce, solicit, lure, or
      entice, or attempt to seduce, solicit, lure, or entice a child or another
      person believed by such person to be 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.


Former OCGA § 16-12-100.2 (d) (1) (emphasis supplied). (This subsection of the

statute was amended effective July 1, 2013, among other things, to replace the phrase

“computer on-line service” with “computer wireless service.” See Ga. L. 2013, p. 663,

§ 3.) For the reasons discussed in Division 2, the state was not required to prove that

Skelhorn used both a computer on-line service and an Internet chat room in order to

convict him of violating former OCGA § 16-12-100.2 (d) (1), because the statute lists

an Internet chat room as a specific kind of computer on-line service. Accordingly, use

of a computer on-line service as something distinct from an Internet chat room is not

an essential element of the crime and the trial court did not err by rejecting Skelhorn’s

request that the jury be instructed that the state had to prove his use of a computer on-


                                           9
line service. See Ganaway v. State, 282 Ga. 297, 299 (2) (647 SE2d 590) (2007)

(because intent to injure was not an element of the offense of aggravated assault with

a deadly weapon, trial court did not err by failing to charge the jury that in order to

convict, it had to find intent to injure). We observe that the evidence adduced at trial

was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt

that Skelhorn used an Internet chat room. Jackson, supra, 443 U. S. at 319 (III) (B).

      (b) Substantial step.

      Contrary to the state’s argument on appeal, we agree with Skelhorn that the

state was required to prove that he took a substantial step toward committing the

crime. Our Supreme Court has held that

      attempt within OCGA § 16-12-100.2 (d) (1) involves two elements:
      intent to commit a crime (in this case, intent to solicit[, lure, and entice]
      a [person he believed to be a] child for an unlawful sexual offense), and
      the taking of a substantial step toward the commission of that crime (in
      this case, a substantial step toward soliciting[, luring, and enticing] a
      [person he believed to be a] child for that unlawful offense).


State v. Cosmo, 295 Ga. 76, 78 (757 SE2d 819) (2014). But we find that the evidence

was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt

that Skelhorn took a substantial step toward soliciting, luring and enticing a person


                                           10
he believed to be a child for an unlawful sexual offense. Jackson, 443 U. S. at 319

(III) (B).

       The statute does not define the synonymous terms “to solicit,” “to lure,” or “to

entice,” and “we therefore look to their plain and ordinary meaning as defined by

dictionaries.” Mornay v. Natl. Union Fire Ins. Co. of Pittsburgh, PA, 331 Ga. App.

112, 115 (3) (769 SE2d 807) (2015) (citation omitted). See also OCGA § 1-3-1 (b).

In ordinary usage, the term “to solicit” means “[t]o seek to obtain by persuasion,

entreaty, or formal application . . . [t]o commit the criminal offense of enticing or

inciting (another) to commit an illegal act,” American Heritage Dictionary of the

English Language, https://ahdictionary.com/word/search.html?q=solicit, or “to ask

for (something, such as money or help) from people, companies.” Merriam-Webster’s

Online Dictionary, http://www.merriam-webster.com/dictionary/solicit . The term “to

lure” means “[t]o attract or entice, especially by wiles or temptation,” American

Heritage          Dictionary           of        the    English       Language,

https://ahdictionary.com/word/search.html?q=lure, or “to cause or persuade (a person

or an animal) to go somewhere or to do something by offering some pleasure or

gain.”        Merriam-Webster’s                        Online      Dictionary,

http://www.merriam-webster.com/dictionary/lure. Similarly, the term “to entice”

                                            11
means “[t]o attract (someone), usually to do something, by arousing hope, interest,

or   desire,”   American     Heritage    Dictionary     of    the    English   Language,

https://ahdictionary.com/word/search.html?q=entice, or “to attract (someone)

especially by offering or showing something that is appealing, interesting, etc.”

M e r r i a m - W e b s t e r ’ s               O n l i n e         D i c t i o n a r y ,

http://www.merriam-webster.com/dictionary/entice. In light of these definitions, we

conclude that the state presented sufficient evidence to authorize a jury to find

Skelhorn “had engaged in substantial steps to establish criminal attempt of the crime

charged.” Cosmo, supra, 295 Ga. at 80 (citations omitted).

      Skelhorn flattered aimee_13, telling her her breasts were “pwrfect,” that he

“love[d] small tits,” and that it was “nice” that she was a virgin. He tried to arouse her

desire, asking her to digitally penetrate herself and asking her if she was “wet.” He

suggested that he drive to Covington, where aimee_13 said she lived, so they could

meet one night “at like a wendy.” He described what they would do when he arrived

in Covington: they would drive around, “suck and lick,” he would try to prove that

he could put his entire penis in her mouth – but he would “never” hurt her, he would

perform cunnilingus on her, and he promised that he would “make [her] cum.” He

explained that they would engage in intercourse, and because she was a virgin, they

                                           12
would go slowly and she would “ride” him because “that is the easiest way. [She

would] control it then.” Skelhorn gave aimee_13 his telephone number, asking her

to call him.

      “[T]he essence of the crime is the attempted enticement of someone the

defendant believes to be a minor, not actual engagement in sexual activity with a

minor.” United States v. Rothenberg, 610 F3d 621, 626 (V) (11th Cir. 2010)

(construing a federal statute that is substantially similar to OCGA § 16-12-100.2 (d)

(1) (see Cosmo, 295 Ga. at 78)). “[T]he very nature of the underlying offense –

[soliciting, luring,] or enticing engagement in unlawful sexual activity – necessarily

contemplates oral or written communications as the principal if not the exclusive

means of committing the offense.” Rothenberg, 610 F3d at 627 (V). A rational trier

of fact was authorized to find that Skelhorn’s chat with aimee_13 constituted an

“important action [] leading to the commission of inducing [her] to engage in illegal

sexual activity.” Id. (punctuation omitted). See Young v. State, 327 Ga. App. 852,

856, (4) (a) (761 SE2d 801) (2014) (along with the requisite intent, the use of the

computer constituted the actual violation of OCGA § 16-12-100.2 (d)).

      We observe that although the state alleged in the indictment that one of the

ways Skelhorn violated the statute was by asking to meet aimee_13, it also alleged

                                         13
that he violated the statute by using an Internet chat room. “Because the statute

requires proof of only one act which is a substantial step toward the commission of

the crime, inclusion in the indictment of more than one such act is mere surplusage,

which is unnecessary to constitute the offense, need not be proved, and may be

disregarded.” Ranson v. State, 198 Ga. App. 659, 661 (3) (a) (402 SE2d 740) (1991).

      4. Motion to suppress.

      Skelhorn argues that the trial court erred by denying his motion to suppress

evidence seized during the execution of a search warrant. He has not preserved this

issue for appellate review. When the state sought to introduce this evidence –

photographs of Skelhorn’s house and bedroom, and his laptop computer – his counsel

affirmatively stated that he had no objection to its admission. Likewise, counsel

stipulated to the admissibility of Skelhorn’s statement taken at the time of the

execution of the warrant. “In so doing, counsel waived any objection, including those

raised in his motion to suppress.” Williams v. State, 314 Ga. App. 840, 844 (4) (a)

(726 SE2d 66) (2012) (citation omitted); see also Dyer v. State, 233 Ga. App. 770,

771 (505 SE2d 71) (1998) (“[f]ailing to object at trial is not a waiver of the motion

to suppress grounds, but affirmatively stating there is no objection in effect concedes

the point”) (citations omitted; emphasis in original).

                                          14
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.




                                  15
