
    Robert TEDDER, alias v. STATE.
    1 Div. 629.
    Court of Criminal Appeals of Alabama.
    Sept. 20, 1988.
    Rehearing Denied Oct. 28, 1988.
    Certiorari Granted May 12, 1989 Alabama Supreme Court 88-201.
    Certiorari Quashed May 19, 1989 Alabama Supreme Court 88-200.
    Edwin L. Yates, Montgomery, for appellant.
    Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Robert Tedder was indicted on six counts, four of which were for enticing a child, in violation of § 13A-6-69, Code of Alabama 1975, one count of sodomy in the first degree in violation of § 13A-6-63, Code of Alabama 1975, and one count of sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama 1975. The jury found the appellant guilty on three counts of enticing a child and on the one count of sodomy in the first degree. The appellant was sentenced to 25 years’ imprisonment on the sodomy count and five years on each of the three enticing-a-child counts, with the sentences to run concurrently.

The appellant challenges the sufficiency of the evidence only as it relates to one of the enticing-of-a-child convictions. Thus, the facts will be limited to those concerning that particular incident.

A five-year-old girl and her nine-year-old sister decided to go to the appellant’s trailer home to get some cookies. After the appellant told them to come in, the child and her sister entered the trailer. While the children were inside the trailer, the appellant showed them sexually explicit pictures of himself and his wife. The appellant and his wife admitted at trial that they were practicing nudists. Some pictures shown to the girls were of the act of fellatio.

The appellant did not ask the child or her sister to do anything before or after he showed them these pictures. Furthermore, he did not try to do anything to the children nor did he try to get the children to do anything with him. However, the appellant instructed the children not to tell anyone about being shown the pictures.

I

The appellant challenges the sufficiency of the evidence as to this one incident which occurred during 1983.

This conviction was based on the facts which have been set out above.

The offense of enticing a child is defined in § 13A-6-69, Code of Alabama 1975. This section reads as follows:

“It shall be unlawful for any person with lascivious intent to entice, allure, persuade or invite, or attempt to entice, allure, persuade or invite, any child under 16 years of age to enter any vehicle, room, house, office or other place for the purpose of proposing to such child the performance of an act of sexual intercourse or an act which constitutes the offense of sodomy or for the purpose of proposing the fondling or feeling of the sexual or genital parts of such child or the breast of such child, or for the purpose of committing an aggravated assault on such child, or for the purpose of proposing that such child fondle or feel the sexual or genital parts of such person.”

This statute requires that the accused act with lascivious intent. Certainly, sexually explicit pictures were relevant to show this lascivious intent. Langham v. State, 494 So.2d 910, 916 (Ala.Crim.App.1986).

Thus, there was evidence that this appellant, with lascivious intent, invited these children, who were under 16 years of age, to enter his house trailer. However, we do not find any evidence that the appellant acted

“... for the purpose of proposing to such child the performance of an act of sexual intercourse or an act which constitutes the offense of sodomy or for the purpose of proposing the fondling or feeling of the sexual or genital parts of such child or the breast of such child, or for the purpose of committing an aggravated assault on such child, or for the purpose of proposing that such child fondle or feel the sexual or genital parts of such person.”

Ala.Code § 13A-6-69 (1975).

There is no evidence that the appellant proposed any of the acts listed in this part of the statute in question.

Thus, there was insufficient evidence to support this conviction for “enticing a child” on this particular count. Therefore, an important element of the offense was not established by the evidence. Thus, the conviction on this particular count of “enticing a child” is due to be and is, hereby, reversed and rendered.

We have carefully reviewed the evidence as to all the remaining counts. These were fully proven by proper evidence at trial. This court has also considered the appellant’s pro se brief.

All other convictions are, therefore, due to be and are, hereby, affirmed.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

TAYLOR and PATTERSON, JJ., concur.

BOWEN, P.J., dissents with opinion in which McMILLAN, J., joins.

BOWEN, Presiding Judge,

dissenting.

I dissent from that portion of the majority opinion reversing and rendering one of the appellant’s three convictions for enticing a child.

The majority reverses because the appellant “did not ask the child or her sister to do anything before or after he showed them these [sexually explicit] pictures.” The majority finds no evidence that the appellant made any sexual proposal to the children after he enticed them into his house. By such reasoning, the majority adds an additional element over and above what is required by statute to establish a prima facie case of enticement.

Section 13A-6-69 provides that “[i]t shall be unlawful for any person with lascivious intent to entice, ... any child under 16 years of age to enter any vehicle, room, ... for the purpose of proposing to such child the performance” of sexual acts. That section does not require that the proposal be communicated by verbal expression or that the proposal be manifested in any particular form or fashion. All that is required is that the enticement was “for the purpose of proposing” to the child certain sexual or forbidden acts. The statute does not even require any communication or expression of the proposal, so that the crime condemned by § 13A-6-69 is complete if the enticement is completed with a certain intent and purpose even if. that purpose is never attempted or fulfilled. “The offense of enticing does not require that the lewd act be accomplished or even attempted, merely that it was intended as motivation for the enticement.” Peavy v. State, 159 Ga.App. 280, 283 S.E.2d 346, 349 (1981).

Here, the showing of the sexually explicit photographs was not only evidence of the appellant’s intent to make a sexual proposal to the children but, at least, the beginning of the proposal itself. “Child molesters will frequently show sexually explicit pictures of adults to children for the purpose of convincing a child that certain practices are perfectly acceptable because adults engage in them with some frequency.” Attorney General’s Commission on Pornography, Final Report, July, 1986, United States Department of Justice, p. 411, n. 74.

“There has also been a growing awareness of the connection between the use of general pornographic material and the sexual exploitation of children. Investigators and behavioral scientists have discovered that many Preferential Child Molesters [pedophiles] will use ‘mainstream’ pornographic materials to lower the inhibitions of children. This portion of the ‘seduction process’ may also involve the use of pornography as an instructional tool, since the molester will ask the child to pose as the performers have depicted, or ask the child to engage in the activities that are depicted (Hearings before the Attorney General’s Commission on Pornography).” National Center For Missing And Exploited Children, Child Pornography and Prostitution, Background and Legal Analysis p. 4 (October 1987).

In Langham v. State, 494 So.2d 910, 916 (Ala.Cr.App.1986), this Court held that “sexually explicit materials, including magazines, films and pictures, tended to shed light on the issue of intent in reference to the enticement charges, and therefore were relevant.”

I find that the State presented a prima facie case of enticement and would affirm this conviction along with the other convictions.  