Muse v. State

• Decision Date: 30 August 2013
• Docket Number: No. A13A1041.,A13A1041.
• Citation: 748 S.E.2d 136,323 Ga.App. 779
• Parties: MUSE v. The STATE.
• Court: Georgia Court of Appeals

323 Ga.App. 779

748 S.E.2d 136

MUSE

v.The STATE.

No. A13A1041.

Court of Appeals of Georgia.

Aug. 30, 2013.

George Brandon Sparks, for Appellant.

Herbert McIntosh Poston Jr., Mark Patrick Higgins Jr., Susan Franklin, for Appellee.

DILLARD, Judge.

Following a trial by jury, Preston Muse was convicted of criminal attempt to commit aggravated child molestation and criminal attempt to commit child molestation. On appeal from these convictions, Muse asserts that (1) the State failed to prove that he did not abandon the attempts and (2) he is entitled to a new trial in light of newly discovered evidence. For the reasons set forth infra, we affirm Muse's convictions.

Viewed in the light most favorable to the jury's guilty verdict,¹ the record reflects that in June 2010, a member of a north Georgia internet-crimes-against-children task force created a fake Craig's List post to which Muse responded, and the two continued to communicate via e-mail. The task-force member posed as “Father Dave,” the stepfather of a fictional minor girl, and offered to allow Muse to engage in sexual contact with the child.² Although the initial internet advertisement did not specify the age of the female that would be involved in an encounter, the reply to Muse's response made clear that the participant would be a 14–year–old girl. Thereafter, Muse expressed surprise at the girl's young age but nevertheless continued to communicate with Father Dave, requesting proof that Father Dave was not associated with law enforcement, sending a photograph of himself, requesting a photograph of the stepdaughter,³ and detailing the oral and vaginal sex acts he would perform with the girl.

Over the course of several weeks, Muse contacted Father Dave multiple times to set up a time and location to meet the stepdaughter for the sexual encounter, communicating via e-mail, phone calls, and text messages. Eventually it was agreed that Muse would drive from Atlanta to a motel in north Georgia, where he would meet Father Dave and the girl.

On the day in question, Muse and Father Dave sent text messages back and forth regarding the details of the meeting time and location, and at one point Muse requested a nude photograph of the girl and inquired as to her hygienic habits. Although Muse indicated that he would be late to the meeting and driving a black Ford F150 truck, he showed up on time in a white GMC truck and parked outside of the room number designated by Father Dave. Five task force members arrived at the hotel parking lot at the meeting time in unmarked vehicles and wearing t-shirts that bore an FBI task force insignia on the left breast.

The lead agent posing as Father Dave and an adult female companion arrived in a silver Mazda, the type of car Muse was told to expect, and parked next to the white GMC. The agent believed he recognized Muse as the truck's occupant from the photograph Muse had provided. Thereafter, at the lead agent's request, another agent pulled into the parking space beside the Mazda, rolled down his window, examined the truck's occupant, agreed that it was Muse, and relayed same to the agent in the Mazda before returning to his original strategic parking location.

At that point, Muse exited the motel parking lot at a high rate of speed and drove onto the interstate. The agents pursued Muse, initiated a stop, and made an arrest. Muse was then taken to the FBI office and spoke with law enforcement voluntarily. This appeal follows Muse's indictment for and subsequent conviction on charges of attempted child molestation and attempted aggravated child molestation, and the trial court's denial of his motion for new trial.

At the outset, we note that on appeal from a criminal conviction, “the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict.” ⁴ With this guiding principle in mind, we turn now to Muse's enumerations of error.

[323 Ga.App. 781]1. Muse first argues that the evidence against him was insufficient because the State's evidence failed to prove that he did not abandon the attempted crimes of child molestation and aggravated child molestation. We disagree.

To begin with, a person commits child molestation when he or she “[d]oes 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” ⁵ and commits the offense of aggravated child molestation when he or she “commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” ⁶ And a person commits criminal attempt when, “with intent to commit a specific crime, he performs any act which constitutesa substantial step toward the commission of that crime.” ⁷

In the case sub judice, Muse was convicted of attempting to commit child molestation and aggravated child molestation on the basis of his communications with Father Dave, in which he expressed a desire to engage in sodomy and vaginal intercourse with a 14–year–old female, and his act of traveling over 90 miles to the north Georgia motel on a predetermined date and time for the purpose of same. The evidence of Muse's extensive communications expressing his sexual desires after learning the child's age and his decision to travel to an established meeting location for the purpose of engaging in the planned encounter provided sufficient evidence of a “substantial step” to sustain his convictions for attempted child molestation and attempted aggravated child molestation.⁸ Nevertheless, Muse argues that he abandoned any effort to commit the crimes when he left the motel parking lot and that the State failed to prove otherwise.

With regard to the defense of abandonment, when a person's conduct would otherwise constitute an attempt to commit a crime under OCGA § 16–4–1, “it is an affirmative defense that he abandoned his effort to commit the crime ... under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.” ⁹ However, a renunciation is not voluntary and complete if it results from a “belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose....” ¹⁰ And when a defendant raises and testifies in support of an affirmative defense, “the State has the burden of disproving that defense beyond a reasonable doubt.” ¹¹

Here, Muse did not testify, but he argues that there was evidence at trial to show abandonment in that he left the motel parking lot. And while the evidence indeed showed that Muse left the parking lot shortly after law enforcement's arrival, the evidence also showed that the undercover agents wore t-shirts bearing a large task-force insignia on the front breast, that at least two agents in two separate cars parked next to Muse and scrutinized him to make an identification, that the two agents—one occupying a car Muse was led to believe contained “Father Dave”—communicated through open windows about Muse's identification, that the second agent moved his car back to a strategic position after identifying Muse, and that Muse left the parking lot at a “high rate of speed” almost immediately after this transpired. Additionally, the jury heard a recording of the statements Muse made to law enforcement following his arrest and, althoughMuse expressed hesitation as to whether he would have gone through with the planned acts, he did not definitively express a change of heart or explain that he left the motel because of same. Although he stated in the interview that he did not pay attention to the cars around him and left because he did not feel “right,” the lead agent testified that he and Muse looked at each other for “a long time.”

Based on the foregoing evidence, even if the jury did not conclude that Muse knew that the individuals in the cars were law-enforcement officers, “[Muse] was acutely aware of the individual[s'] presence, and a reasonable jury could conclude that [Muse] believed the individual[s'] presence increased the probability of his apprehension.” ¹² It was for the jury to determine whether the State met any burden to disprove an affirmative defense of abandonment ¹³—a determination which the jury made in the State's favor.¹⁴ Accordingly, this enumeration of error is without merit.

2. Muse next argues that the trial court abused its discretion in denying his extraordinary motion for a new trial based on newly discovered evidence. Once again, we disagree.

Pursuant to OCGA § 5–5–23,

[a] new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.

When we review the denial of an extraordinary motion for new trial based on newly discovered evidence, our review “is circumscribed because motions for new trial on this ground are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless that discretion is abused.” ¹⁵ And our Supreme Court has held that a new trial may be granted on the basis of newly discovered evidence when the party seeking a new trial satisfies the lower court

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the...