Moore v. State

• Decision Date: 06 March 2020
• Docket Number: A19A2332
• Citation: 354 Ga.App. 145,840 S.E.2d 519
• Parties: MOORE v. The STATE.
• Court: Georgia Court of Appeals

354 Ga.App. 145

840 S.E.2d 519

MOORE

v.The STATE.

A19A2332

Court of Appeals of Georgia.

March 6, 2020

John R. Monroe, for Appellant.

Lee Darragh, Gainesville, Wanda Lynn Vance, for Appellee.

Mercier, Judge.

Laronda Moore and Eric Robertson were indicted, individually and as parties to a crime, for trafficking of persons for sexual servitude and cruelty to children (second degree). The jury found Moore guilty of both crimes.¹ The trial court imposed a sentence of 25 years on the trafficking count and 10 years on the child cruelty count.

Moore appeals following the denial of her motion for new trial, contending that the evidence was insufficient to support the trafficking conviction, the court erred in its jury instructions, and trial counsel provided ineffective assistance. Finding no basis for reversal, we affirm.

Viewed in the light most favorable to the jury’s verdict, Libri v. State , 346 Ga. App. 420, 421, 816 S.E.2d 417 (2018), the trial evidence showed the following. In January 2018, 17-year-old B. E. phoned her mother to report that the couple with whom she had been living, Moore and Robertson, were forcing her to engage in sexual activity with men for money. B. E. escaped from their house by running out of the back door of the house and through the woods. B. E. and her mother contacted police the same day.

B. E. testified that in the summer of 2017, she stopped living with her mother and began staying "[w]herever [she] could find a place to sleep," including outdoors. B. E. met Moore and Robertson through Moore’s teenage son, with whom B. E. was acquainted. In October 2017, Moore and Robertson took B. E. to their house, where they immediately began using her to make money for them through sexual acts. B. E. thought that Moore and Robertson cared about her, and Moore sometimes treated her as a daughter. But Moore told B. E. that if she was going to live with them, she needed to make money. When B. E. said she did not want to perform sex acts for money, Moore told her she could get a job when she was 18 years old.

Moore and Robertson used a dating app to find men to have sex with B. E.; when the men came to the house and engaged in sexual activity with her, B. E. put the money they gave her under Moore’s bedroom door or left it in the bathroom, as Moore had instructed. Moore set the prices for the sex acts and told B. E. what to do with and say to the men. The couple also took B. E. to different locations, where they told people, "Hey, she ... for sale." Moore and Robertson kept the money that the men paid. When B. E. failed to make money, Moore hit her, usually in the face. Moore also yelled at B. E. and called her names. On different occasions, Robertson struck B. E., gave her a "busted nose" and swollen eye, and pushed her into a wall.

When asked if Moore and Robertson ever gave her drugs or alcohol, B. E. testified that they gave her "Gucci," which she said was "[s]ynthetic marijuana," for her to smoke approximately twice each day. B. E. once became sick and lost consciousness as result of smoking the synthetic marijuana. A search of the cell phone Moore used revealed text messages stating: "I got a ... girl that does business. If you want some this morning she pretty. ...She about money," followed by text messages that listed prices for various sex acts and asked, "What would you like?"

1. Moore contends that the evidence was insufficient to prove the offense of trafficking of persons for sexual servitude. We disagree.

OCGA § 16-5-46 (c) (1) (2017) provides: "A person commits the offense of trafficking an individual for sexual servitude when that person knowingly ... [s]ubjects an individual to or maintains an individual in sexual servitude." OCGA § 16-5-46 (a) (8) (2017) provides, in pertinent part:

"Sexual servitude" means any sexually explicit conduct or performance involving sexually explicit conduct for which anything of value is directly or indirectly given, promised to, or received by any individual, which conduct is induced or obtained: (A) [b]y coercion or deception;[or] (B) [f]rom an individual who is under the age of 18 years[.]

In Count 1 of the indictment, the State charged Moore with violating OCGA § 16-5-46 (c), alleging that on January 1, 2018, and no later than January 9, 2018, she "did knowingly subject and maintain [B. E.], an individual under 18 years of age during all of the events alleged, in sexual servitude by coercion and deception[.]" Moore argues that based on the language of the indictment, the State was required to prove that B. E. was under 18 and that Moore subjected her to sexual servitude by either coercion or deception, i.e., as required by OCGA § 16-5-46 (f) (4) (2017).² Moore asserts that, even assuming that she subjected B. E. to sexually explicit conduct or performance, the State failed to prove deception. Moore makes no argument regarding coercion - but OCGA § 16-5-46 (f) (4) (2017) requires proof of either coercion or deception. Evidence of coercion would have sufficed. See generally Gordon , supra (the State was not required to prove that the defendant committed a crime in more than one manner where the indictment charged that the crime was committed in more than one way; proof that the crime was committed in one of the methods alleged was sufficient).

OCGA § 16-5-46 (a) (1) (A) (2017) defines the term "[c]oercion," as used in the trafficking statute, to include "causing or threatening to cause bodily harm to any individual[.]" "[W]hether [Moore’s] actions were sufficient to compel a reasonable person in [B. E.’s] position to perform ... the alleged acts of sexual servitude was a question of fact for the jury to consider under the totality of the circumstances." Lemery v. State , 330 Ga. App. 623, 628 (1), 768 S.E.2d 800 (2015) (footnote omitted). The jury was authorized to find from the evidence presented that Moore used coercion to subject B. E. to sexual servitude and that Moore was guilty beyond a reasonable doubt of trafficking as alleged in the indictment. See generally Grace v. State , 347 Ga. App. 396, 397-399 (1), 819 S.E.2d 674 (2018).

2. Moore contends that the trial court erred in its jury instructions, such that there was a fatal variance between the indictment and the jury charge regarding trafficking of persons for sexual servitude. She asserts that the court’s instruction tracked the "general trafficking" language of OCGA § 16-5-46 (a) (8) (2017) (involving a victim who was coerced or deceived),³ but that the indictment tracked the language of OCGA § 16-5-46 (f) (4) (involving a victim who was under 18 and was coerced or deceived), with the latter subsection providing for harsher sentencing. According to Moore, the instruction was not consistent with either the indictment or the sentence imposed, and she may have been convicted of committing the crime in a manner other than the one for which she was indicted; in other words, the jury may have found that B. E. was under 18 or that she was coerced or deceived, when the indictment and statutory subsection under which Moore was sentenced required findings both that B. E. was under 18 and that her conduct was obtained by coercion or deception.

Because Moore did not object to the court’s jury instruction at trial, the matter may only be reviewed for plain error. See OCGA § 17-8-58 (b) ; Givens v. State , 294 Ga. 264, 266 (2), 751 S.E.2d 778 (2013).

To show plain error, [Moore] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected [her] substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.

Lupoe v. State , 300 Ga. 233, 243 (4), 794 S.E.2d 67 (2016) (citation and punctuation omitted). "Satisfying all four prongs of this standard is difficult, as it should be." Id. (citation and punctuation omitted). In this case, it is unlikely that the error in the instruction affected the outcome of the proceedings.

Where the indictment charges a defendant committed an offense by one method, it is reversible error for the court to instruct the jury that the offense could be committed by other statutory methods with no limiting instruction. The defect is cured, however, where the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.

Sharpe v. State , 291 Ga. 148, 151 (4), 728 S.E.2d 217 (2012) (citation and punctuation omitted).

In its charge to the jury, the trial court informed the jury of the crimes for which Moore was indicted, instructed the jury that the indictment and the plea formed the issues to be decided, properly instructed the jury as to the burden of proof, and gave a copy of the indictment to the jury to use during deliberation. The court thus cured the defect. See id. Moreover, there was evidence from which the jury was authorized to find both that B. E. was under the age of 18 at the time of the charged offenses and that Moore induced or obtained B. E.’s sexual servitude by coercion or deception. We find no evidence that the jury found Moore guilty of a crime not alleged in the indictment. See id. ; Rowland v. State , 349 Ga. App. 650, 654-655 (4), 825 S.E.2d 231 (2019).

3. Moore alleges seven instances of ineffective assistance of trial counsel.

To prevail on her claim of ineffective assistance,

[Moore] must prove both that the performance of [her] lawyer was deficient and that [she] was prejudiced by this deficient performance. Strickland v. Washington [cit.]. To prove that the performance of [her] lawyer was deficient, [Moore] must show that the lawyer performed his [or her] duties at trial in an objectively unreasonable way, considering all the circumstances[.] ...And to prove that [she] was prejudiced by the performance of [her] lawyer, [

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