dissenting.
I respectfully dissent. In my opinion, the trial court correctly interpreted the child molestation statute as intended by the legislature. The majority, in contrast, has not only rewritten that statute but has called into question the scope and effect of the statutes dealing with obscene telephone communications, disorderly conduct, and criminal attempt. It has also rendered the child molestation statute impermissibly vague.
“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). No previous decision in Georgia has construed this to include an act committed via telephone, because no Georgia court has included in the definition of “any immoral or indecent act” a verbal act made outside the immediate presence of the child.
It also does not appear that the legislature intended this result. In considering legislative enactments, we must apply the principal rules of statutory construction. These rules include the requirement that we “give meaning to each part of the statute and . . . avoid constructions which render a portion of the statute mere surplusage. A statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto. Finally, it is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” (Citations and punctuation omitted.) City of Buchanan v. Pope, 222 Ga. App. 716 (476 SE2d 53) (1996).
Applying these rules, it is apparent that the legislature did not intend to include obscene telephone calls to minors within the ambit of the child molestation statute. Doing so would create conflict with two statutes proscribing the same or similar conduct: OCGA § 46-5-21 (a), obscene, threatening, or harassing telephone calls,1 and OCGA § 16-11-39 (a) (4), disorderly conduct by using “obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.”2 Bearing in mind the requirement that we not *787render meaningless any provision of the legislature, and considering also that we are bound to construe criminal statutes strictly, Flanagan v. State, 212 Ga. App. 468 (442 SE2d 16) (1994), I conclude that the legislature intended to treat obscene telephone calls, whether to minors or others, as misdemeanor offenses separate from the felony of child molestation.
I do not believe that the offense defined in OCGA § 16-11-39 (a) (4) can be distinguished, as the majority contends, because it addresses a breach of the peace. “Breach of the peace” has been defined as “the breaking or disturbing of the public peace by any riotous, forcible or unlawful proceeding. [Cits.]” (Emphasis supplied.) Sanders v. City of Columbus, 140 Ga. App. 441, 443-444 (3) (231 SE2d 473) (1976) (jury question whether traffic violation for speeding constituted breach of the peace). The presence of even one other person may convert an act into a breach of the peace. See, e.g., Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 110-111 (1) (387 SE2d 144) (1989) (attempted repossession of vehicle in presence of owner constitutes breach of the peace). Assuming, however, that an obscene telephone call made in public can be distinguished from an obscene telephone call made in private as promoting a breach of the peace, as the majority urges, a flagrant and defiant use of the telephone before many witnesses would constitute a mere misdemeanor, while a single private call would become a felony. The legislature could not have intended this anomalous result.
There is, moreover, a rational distinction to be made between obscene telephone calls and child molestation perpetrated by words or actions in the physical presence of the victim. The cases cited by the majority as showing child molestation committed by speech and other non-contact actions simply confirm this reading of the statute, because all without exception were made in the physical presence of the victim.3 Members of the General Assembly may well have concluded that verbal acts perpetrated from an indeterminate distance over the telephone, while offensive and disturbing, do not pose the same threat to the minor’s physical or psychological safety as verbal acts committed in the minor’s physical presence.
In citing a California decision affirming a conviction of attempted child molestation via telephone, the majority ignores the crucial distinction that the defendant here was not charged with attempt but with the completed crime. Whether this defendant’s conduct might have constituted “a substantial step toward the commission of [the] crime,” OCGA § 16-4-1, is not before us. I note, however, that the *788majority’s reading will convert many acts formerly considered attempted child molestation into the completed crime. See, e.g., Wittschen v. State, 189 Ga. App. 828 (377 SE2d 681) (1988), aff’d, 259 Ga. 448 (383 SE2d 885) (1989) (appellant who verbally invited a child in his physical presence to perform a lewd act was properly convicted of attempt to commit the offense of child molestation).
Finally, imposing liability under OCGA § 16-6-4 for defendants who were never in the physical presence of the victim raises substantial due process and fairness concerns. “In its classic formulation of the standard for establishing unconstitutional vagueness, the Supreme Court held that a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. If men of common intelligence must guess at the meaning of a statute, the statute violates due process of law. [Cits.]” (Punctuation omitted.) Chancey v. State, 256 Ga. 415, 428 (4) (D) (349 SE2d 717) (1986).
There is no question that an obscene telephone call is offensive, intrusive, and disgusting to the victim regardless of his or her age. It is apparent, however, that extending the scope of the child molestation statute to include telephone calls creates a substantial risk that the perpetrator will be unable to determine when the same conduct on his part renders him liable for the felony of child molestation instead of the misdemeanor of disturbing the peace or an obscene telephone call. Callers who do not know the recipient (as appears to be the case here) or who dial numbers at random would be subject to felony penalties if a person under the age of 16 happens to answer the telephone, or if the caller is unable to determine the age of the recipient from his or her voice. Although knowledge of a victim’s age is not an element of the offense, a child molester who claims not to know the age of a victim with whom he was in direct personal contact is in a significantly different position from that of a random obscene caller. The telephone caller clearly has the intent to perpetrate a disgusting and obscene intrusion into the life of his victim, but he cannot have a “specific intent to use [a] child as an object of sex,” as noted by the special concurrence, when he has no direct personal contact with an unknown victim, who could be of any age. Such a lack of knowledge completely removes the necessary element of intent or “unique bent of mind” required for the offense of child molestation.
Although we view the defendant’s conduct here with repugnance, we ought not to allow distaste for his behavior to erode the bedrock principle that all citizens must be given fair notice of the criminality of certain conduct, the scope of a statute, and the penalties imposed for its violation. “We must proceed slowly and carefully in this era of public awareness. We cannot allow our revulsion of sexual abuse or molestation to turn our courts into a forum in which the *789accusation becomes the conviction and affirmance.” State v. Butler, 256 Ga. 448, 454, n. 4 (349 SE2d 684) (1986) (Smith, J., dissenting).
Decided June 11, 1997 Before Judge McGarity. Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellant. William C. Drosky, for appellee.For these reasons, I respectfully dissent.
Appellee was charged and bound over under this statute.
The latter statute is inapplicable here because the victim had attained the age of 14 at the time of the offense.
It should also be noted that this defendant was not charged with committing an offense “in the presence of” the victim, but merely “to” the victim.