Reid v. State

• Decision Date: 06 March 2019
• Docket Number: A18A2138
• Citation: 349 Ga.App. 196,825 S.E.2d 555
• Parties: REID v. The STATE.
• Court: Georgia Court of Appeals

349 Ga.App. 196

825 S.E.2d 555

REID

v.The STATE.

A18A2138

Court of Appeals of Georgia.

March 6, 2019

Stuart Hunter Patray, for Appellant

Richard Ashley Mallard, Dist. Atty., Keith A. McIntyre, Asst. Dist. Atty., Statesboro, for Appellee

Rickman, Judge.

Following a bench trial, Richard Allen Reid was convicted on one count of criminal attempt to commit child molestation and two counts of computer pornography. On appeal, Reid contends that the evidence was insufficient to support his conviction for criminal attempt to commit child molestation and that the evidence established the affirmative defense of entrapment. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(Citation and punctuation omitted.) Hall v. State , 335 Ga. App. 895, 783 S.E.2d 400 (2016).

So viewed, the evidence showed that in the summer of 2015, an investigator with the Effingham County Sheriff’s Office placed an ad on Craigslist stating that he was a female and was "home alone bored." Reid responded to the ad, "I am very much interested in hanging out. I'm a lot of fun to be around but will let you be the judge of that if you're interested. Hit me up and let’s see what kind of fun we can get into." When the investigator replied that she was 15 years old, Reid stated, "[o]h wow, but you're only 15 though."

The investigator sent a photograph purporting to be a photograph of the 15-year-old girl, but it was actually a photograph of a female deputy at the sheriff’s office, and Reid sent a photograph of himself. After communicating through Craigslist, Reid and the investigator, posing as the 15-year-old girl, began exchanging text messages. The investigator testified that Reid "constantly ask[ed] for nude photos of the child" and stated that he was a "horny old man." Reid sent text messages to the investigator stating that the child was a "very attractive young lady" and that he was "really a lot older than [her]," Reid asked the investigator what kind of "fun" she liked and he replied, "I lik all kinds and mayb even new stuff." Reid responded, "[d]on't tease me girl[.]" Reid expressed concern to the investigator about being discovered by law enforcement and told him to "get rid of" all of their conversations so that a parent did not discover them.

Reid and the investigator arranged to meet at a gas station. Prior to their meeting, Reid requested more revealing photos that showed more skin so that he would have something to look forward to. The investigator testified that Reid stated, "[w]e can still play and get all worked up and be ready to have fun when I do make it up there" and that he wanted to "see [her] naked before I see you Friday, that'd also prove that you're serious." Reid confirmed that the investigator would be alone when he met with the child after work and stated that he was "pretty excited" about meeting with her. After they met, Reid planned to go back to the child’s house.

Once Reid indicated that he was close to the arranged meeting location, the investigator began surveillance. The investigator observed a male in a Jeep pull into a parking space toward the end of the parking lot. The male sat in his vehicle for several minutes without exiting before backing up and attempting to leave the location. Thereafter, the investigator conducted a traffic stop and identified the male as Reid. The investigator testified that Reid initially stated that "he was just simply riding around" but then admitted "that he was coming to meet a female that he knew was underage."

Reid was indicted for one count of criminal attempt to commit child molestation and two counts of computer pornography. Reid entered a guilty plea to all counts of the indictment but subsequently successfully moved to withdraw the guilty plea. Following a bench trial, Reid was convicted on all counts. Reid filed a timely motion for new trial, which was denied by the trial court. This appeal follows.

1. Reid contends that the evidence was insufficient to support his conviction for criminal attempt to commit child molestation. Specifically, Reid argues that he never took a substantial step toward committing child molestation or, alternatively, that he abandoned any attempt to commit child molestation. We disagree.

"A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1. To establish that Reid attempted to commit child molestation, the State was required to prove that he took a substantial step toward 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 the person." OCGA § 16-6-4 (a) (1). "[W]hether a particular act is ‘immoral or indecent’ is a [question for the factfinder] that may be determined in conjunction with the intent that drives the act." Slack v. State , 265 Ga. App. 306, 307 (1), 593 S.E.2d 664 (2004).

The communications between Reid and the alleged child need not describe the particular sexual acts that he intended to engage in with the child to establish intent because "intent, which is a mental attitude, can be inferred." (Citation and punctuation omitted.) Schlesselman v. State , 332 Ga. App. 453, 455 (1), 773 S.E.2d 413 (2015). "And whether a defendant possessed the necessary intent is a question of fact for the [factfinder] after considering all the circumstances surrounding the acts of which the accused is charged." (Citation and punctuation omitted.) Id.

Here, Reid communicated with someone he believed to be a 15-year-old girl. Reid asked the alleged child repeatedly for nude photographs, told her that he was a horny and dirty old man, and asked her not to "tease" him when she told him that she would like to try new things. Prior to Reid’s arranged meeting with the alleged child, he told her they could "play and get all worked up and be ready to have fun" before meeting, that he wanted to see her naked to prove that she was serious, and that he was "pretty excited" about meeting her. This was enough evidence for the trial court to determine that, with the intent toward doing an immoral or indecent act with a 15 year old girl, Reid took a substantial step toward committing child molestation by arranging to meet the child, and traveling to the meeting place. See Schlesselman , 332 Ga. App. at 455 (1), 773 S.E.2d 413 (affirming defendant’s conviction for attempted child molestation where the defendant arranged to pay for a night of "companionship" with a 14-year-old girl and drove to the meeting location); Lopez v. State , 326 Ga. App. 770, 774 (1) (b), 757 S.E.2d 436 (2014) ("We have held that a conviction of attempted child molestation is authorized where the evidence shows that the defendant communicated with an adult whom the defendant believed to be a child under sixteen years old and took substantial steps to meet with that person to engage in sexual activity that would constitute child molestation.").

Alternatively, Reid argues that he abandoned any criminal purpose when he left the arranged meeting place without exiting his vehicle.

When a person’s conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1, it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.

OCGA § 16-4-5 (a). "[W]hen a defendant raises and testifies in support of an affirmative defense, the State has the burden of disproving that defense beyond a reasonable doubt."(Citation and punctuation omitted.) Muse v. State , 323 Ga. App. 779, 782 (1), 748 S.E.2d 136 (2013).

Here, Reid did not testify and he argued that he never had any "intent to do the things that were specifically listed in the State’s indictment, and that was criminal attempt to commit child molestation." However, he still alleges that evidence presented at trial showed he abandoned any criminal purpose. The evidence established that, prior to the arranged meeting, Reid expressed concern that he would be discovered by law enforcement or the child’s parents, and that Reid was under law enforcement surveillance the entire time he was at the gas station. After Reid was apprehended, he never explained to the investigator why he left the gas station or expressed a change of heart. "It was for the [factfinder] to determine whether the State met any burden to disprove an affirmative defense of abandonment—a determination which the [factfinder] made in the State’s favor." (Citation omitted.) Muse , 323 Ga. App. at 783 (1), 748 S.E.2d 136. Accordingly, we find that the trial court’s determination that the State met any burden to disprove the affirmative defense of abandonment was supported by the evidence. See id. ; Bentley v. State , 261 Ga. 229, 230 (2), 404 S.E.2d 101 (1991).

2. Reid contends that the evidence established the affirmative defense of entrapment, and that he was entrapped to commit computer pornography.

"Entrapment is an affirmative defense that is established by showing that (1) the idea for the crime originated with the State agent; (2) the defendant was induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant was not predisposed to commit the crime." Logan v. State , 309 Ga App. 95, 97 (1) (a), 709 S.E.2d 302 (2011).

As a general rule, in order

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