State v. Cosmo

• Decision Date: 22 April 2014
• Docket Number: No. S13G1070.,S13G1070.
• Citation: 757 S.E.2d 819,295 Ga. 76
• Court: Georgia Supreme Court
• Parties: The STATE v. COSMO.

295 Ga. 76

757 S.E.2d 819

The STATE

v.COSMO.

No. S13G1070.

Supreme Court of Georgia.

April 22, 2014.

Alan Christopher Norton, Asst. Dist. Atty., Herbert E. Franklin, Jr., Dist. Atty., LaFayette, for appellant.

Adam Marshall Hames, Atlanta, for appellee.

BENHAM, Justice.

Dennis Cosmo was convicted of, among other things, a violation of section (d)(1) of the former version of the “Computer or Electronic Pornography and Child Exploitation Prevention Act,” OCGA § 16–12–100.2, prior to the statute's amendment in 2013. That conviction was reversed by the Court of Appeals in its decision, Cosmo v. State, 320 Ga.App. 397, 739 S.E.2d 828 (2013). We granted the petition for writ of certiorari filed by the State to consider whether proof of a direct communication with a child is required to prove a violation of the statute. For the reasons set forth below, we conclude that direct communication was not required for a conviction pursuant to the crime as charged in this case, and we reverse the holding of the Court of Appeals as it relates to Cosmo's conviction for violation of this statute.¹

The facts are set forth in detail in the Court of Appeals opinion and demonstrate that Cosmo communicated via the Internet, and later via telephone and telephone text messaging, with an undercover law enforcement agent posing as a woman named “Amber” regarding Amber's offer to engage in a sexual encounter with Cosmo involving herself and at least one of three under-aged children that she claimed were her daughters. 320 Ga.App. at 398–401, 739 S.E.2d 828. The evidence established that Cosmo engaged in a dialogue and negotiations with Amber regarding Amber's proposal and that he agreed to an encounter with Amber and the girl he was told was fourteen years old. Id. Cosmo set forth in explicit detail the acts he was attempting to solicit with respect to this fictitious child. Id. It is undisputed, however, that Cosmo never communicated directly with a person he believed to be a child and that he communicated only with a person he believed to be Amber, the child's parent.

The wording of OCGA § 16–12–100.2(d)(1) in effect at the time Cosmo was indicted provided:

It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16–6–2, relating to the offense of sodomy or aggravated sodomy; Code Section 16–6–4, relating to the offense of child molestation or aggravated child molestation; Code Section 16–6–5, relating to the offense of enticing a child for indecent purposes; or Code Section 16–6–8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child.²

Cosmo asserted on appeal that the evidence was insufficient to support a conviction because the evidence failed to show any interaction between himself and a child or person he believed to be a child. 320 Ga.App. at 402, 739 S.E.2d 828. The Court of Appeals reversed his conviction for this offense on the ground “that the plain meaning of the phrase ‘seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act’ cannot be construed to encompass his communication with only an adult or person known to be an adult.” Id. The Court of Appeals, however, failed to consider that this Code section makes it a crime to “ attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child” to commit an illegal act enumerated in the statute. (Emphasis supplied.) The count of the indictment accusing Cosmo of violating the Act specifically accused him of “attempt to solicit” a person he believed to be a child to commit child molestation and aggravated child molestation.

OCGA § 16–12–100.2(d)(1) makes the attempt to do certain prohibited acts one of the ways in which the statute may be violated. In construing the element of attempt within this statute, we look to OCGA § 16–4–1, the statute that defines criminal attempt as a separate offense: “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.” Thus, attempt within OCGA § 16–12–100.2(d)(1) involves two elements: intent to commit a crime (in this case, intent to solicit a child for an unlawful sexual offense), and the taking of a substantial step toward the commission of that crime (in this case, a substantial step toward soliciting a child for that unlawful offense). Communication with a person the defendant believes to be the parent of a child who is the object of the defendant's attempt to solicit satisfies the intent element of the offense.

A similar conclusion has been reached by federal courts in construing a federal statute that is substantially similar to OCGA § 16–12–100.2(d)(1). Pursuant to 18 U.S.C. § 2422(b):

Whoever, using the mail or any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

In United States v. Murrell, 368 F.3d 1283 (11th Cir.2004), the Eleventh Circuit Court of Appeals affirmed the conviction of a defendant who was charged with attempt to knowingly persuade, induce, entice, or coerce the minor to engage in unlawful sexual activity. Murrell had engaged in Internet communications with an undercover officer posing as the adult parent of a thirteen year-old girl and arranged to meet the purported parent and daughter for the purpose of engaging in sexual activity with the minor. Murrell's actions were viewed as inducement within the statute and the court found that his actions satisfied the intent element of attempt, even though he did not communicate directly with the purported child. According to the court:

By negotiating with the purported father of a minor, Murrell attempted to stimulate or cause the minor to engage in sexual activity with him. Consequently, Murrell's conduct fits squarely within the definition of “induce.” Moreover, we note that the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective. In this case, Murrell communicated with an adult who he believed to be the father of a thirteen-year-old girl and who presumably exercised influence over the girl. Murrell's agreement with the father, who was acting as an agent or representative, implied procuring the daughter to engage in sexual activity. Because we find that Murrell acted with the intent to induce a minor to engage in unlawful sexual activity, the first element of attempt is satisfied.

Id. at 1287. The court found the second element of attempt—the taking of a substantial step toward the intended goal—was satisfied by evidence of his objective acts, which included making several explicit incriminating statements to the undercover officer, traveling two hours to meet a minor girl for sex in exchange for money, and carrying, among other things, cash and condoms with him when he arrived at the meeting site. Id. at 1288. The court concluded that Murrell's conduct was a violation of the statute because direct communication with a minor is unnecessary pursuant to the terms of the statute and because Murrell's conduct satisfied both elements of...