Brown v. State

• Decision Date: 20 May 2013
• Docket Number: No. A13A0408.,A13A0408.
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

321 Ga.App. 798

743 S.E.2d 474

BROWN

v.The STATE.

No. A13A0408.

Court of Appeals of Georgia.

May 20, 2013.

Michael Robert McCarthy, for appellant.

Herbert McIntosh Poston, Jr., Dist. Atty., Mark Patrick Higgins, Jr., Susan Franklin, Asst. Dist. Attys., for appellee.

McFADDEN, Judge.

After a bench trial, Anthony Scott Brown was convicted of criminal attempt to commit child molestation, OCGA §§ 16–4–1, 16–6–4(a)(1), and computer child exploitation, OCGA § 16–12–100.2(d)(1). He appeals. Because we find that the evidence was sufficient, that the state had jurisdiction to prosecute Brown for these offenses, and that the offenses did not merge for sentencing, we affirm.

1. Sufficiency of the evidence.

Brown argues that the evidence was insufficient to support his conviction for attempted child molestation. When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence showed that on June 3, 2009, a Whitfield County, Georgia, sheriff's deputy posted a “Craigslist” advertisement in which he purported to be “Brittany,” a female looking for male companionship. Brown, a 26–year–old Tennessee resident, responded to the advertisement. The two began communicating, first by e-mail and then by Internet instant messages. In a June 7 e-mail, “Brittany” told Brown that she was only 14 years old. Brown then asked what she had in mind, and “Brittany” gave a vague response. Brown then responded: “ah, i see i see, so your looking for someone to basicly, take your virginity, and show you the world of such pleasures, well i supose i could help you with that, if your interested.” ¹ In a subsequent e-mail on June 7, Brown asked “Brittany” what she was “interested in learning.” In her reply, “Brittany” mentioned that she lived in north Georgia. In his next e-mail, Brown asked “Brittany” if she was “looking forward to high school” and then stated:

i could teach you everything if you like, but only if you feel comftable enough to learn, and don't worry i know your not some sort of a nasty girl, i can tell you really don't know much, i do need to know though, you are a virgin right? you know your first time might hurt some, so i need to know so i could try to make things as painless as possible.

Later on June 7, in a series of instant messages, Brown and “Brittany” discussed more specifically where in Georgia she lived, and Brown again asked what she would be comfortable doing, mentioning both oral and vaginal sexual contact. He then asked, “if we was to meet up, do you have any place in mind, or know of any places where we wouldnt be botherd during your learning process?” “Brittany” replied that she often would sneak out and meet friends behind her apartment. Brown emphasized that he was “serious about meeting up” with “Brittany.”

On June 14, Brown initiated another series of instant messages with “Brittany.” Brown asked whether she had found a “teacher” and stated that he would “still be willing to if your still interested.” He asked “Brittany” when she “would like to do this,” and the two arranged for a date and time to meet at her apartment. Brown asked “where are we going to do this” and suggested her room. When “Brittany” expressed concern about getting hurt, Brown responded, “I'll try not to, ... i mean you know losing your virginity will be a little painfull right?” He asked that “Brittany” “wear as little as possible” when they met and stated that, although he was allergic to “protection,” he could “pull out before i went too far” and also mentioned that he did not have any sexually transmitted diseases and that doctors had told him he was sterile. He then stated that “when it comes time for that, it maybe abit too painfull for you to handle, so may not beable to lose your virginity on the first time.”

The two engaged in another series of instant messages on June 15 and 16. Brown asked “Brittany” to masturbate and digitally penetrate herself in preparation for their meeting. He later asked her how it felt and stated that it “will feel even better when someone eles does it.” He also asked questions about how to contact her and find her apartment. And he again stated that he did not know if “Brittany” would experience pain and again suggested that she masturbate and digitally penetrate herself to give her “an idea of what it would feel like to lose your virginity.”

On June 18, Brown asked “Brittany” in an instant message if she was looking forward to their meeting, planned for the next day, and the two confirmed the time and place of their meeting. Brown described the vehicle he would be driving and the clothes he would be wearing. The following morning, Brown arrived at the planned location in Whitfield County, Georgia, where law enforcement officers arrested him.

This evidence was sufficient to show attempted child molestation. The state was required to prove that Brown “took a substantial step towards doing ‘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 (himself).’ ” (Quoting OCGA § 16–6–4(a)(1), citing OCGA § 16–4–1.) Castaneira v. State, 321 Ga.App. 418, 423(2), 740 S.E.2d 400 (2013). The trial court could find from the evidence in this case that Brown traveled to an arranged location to have sexual intercourse with 14–year–old “Brittany,” and that this was a substantial step toward committing the offense of criminal attempt to commit child molestation. See Castaneira, 321 Ga.App. at 423(2), 740 S.E.2d 400 (evidence that defendant engaged in sexually explicit on-line communications with law enforcement officer posing as 15–year–old girl, arranged to meet her to engage in sexual activities, and went to the arranged meeting place was sufficient to sustain his conviction for attempted child molestation); Logan v. State, 309 Ga.App. 95, 99–100(2)(a), 709 S.E.2d 302 (2011) (evidence that defendant, via electronic communications, asked law enforcement officer posing as 14–year–old girl to engage in sexual intercourse and oral sodomy, and then carried a condom to an arranged meeting place, was sufficient to show that defendant took a substantial step toward committing child molestation and aggravated child molestation); Smith v. State, 306 Ga.App. 301, 302(1), 702 S.E.2d 211 (2010) (evidence that defendant engaged in sexually explicit on-line conversations with an adult posing as a 15–year–old girl, drove to an arranged meeting place, and then fled from law enforcement officers who were waiting at that place, was sufficient to sustain his conviction for attempted child molestation). Compare Heard v. State, 317 Ga.App. 663, 666, 731 S.E.2d 124 (2012) (finding insufficient evidence to show that defendant had committed a substantial step toward committing crime of enticing a child, where even if intended victim had complied with defendant's requests, certain elements of the crime would not have been established). The fact that “Brittany” did not actually exist and thus Brown was never in “her” presence does not preclude his conviction for attempted child molestation. See Dennard v. State, 243 Ga.App. 868, 871(1)(a), 534 S.E.2d 182 (2000).

2. Jurisdiction.

Brown argues that the state lacked jurisdiction to prosecute him because he was a Tennessee resident with no ties to Georgia before being lured to this state by law enforcement officers. But Georgia law pertinently provides that “a person shall be subject to prosecution in this state for a crime which he commits, while either within or outside the state, ... if ... [t]he crime is committed either wholly or partly within the state[.]” OCGA § 17–2–1(b).

The state had jurisdiction under OCGA § 17–2–1 to prosecute Brown for attemptedchild molestation. Brown committed that crime at least partly within Georgia when he took a substantial step in Georgia toward committing child molestation, namely by traveling to Georgia to meet with 14–year–old “Brittany” for the purpose of engaging in sexual activities with her. See generally Raftis v. State, 175 Ga.App. 893, 894–895(1), 334 S.E.2d 857 (1985) (Georgia had jurisdiction under OCGA § 17–2–1 to prosecute defendant for conspiracy to commit drug offense because there was evidence that defendant, while in Georgia, agreed to and made arrangements with another person to buy marijuana from a third party in Florida, authorizing a finding that defendant's conduct in Georgia was in furtherance of the conspiracy).

The state also had jurisdiction under OCGA § 17–2–1 to prosecute Brown for computer child exploitation. The Code section establishing that crime subjects a person to prosecution in Georgia under OCGA § 17–2–1 for “any conduct made unlawful by [OCGA § 16–12–100.2] which the person engages in while ... [e]ither within or outside of this state if, by such conduct, the person commits a violation of [OCGA § 16–12–100.2] which involves ... another person believed by such person to be a child residing in this state.” OCGA § 16–12–100.2(h) Here, the evidence showed that, after being told that “Brittany” lived in Georgia, Brown violated OCGA § 16–12–100.2 by utilizing computer on-line services to continue to communicate with her and to entice her to meet him to engage in sexual activities. See OCGA § 16–12–100.2(d)(1) (making it unlawful for...