In Cosmo v. State, the Georgia Court of Appeals reversed the defendant's convictions in an internet sting operation when it found that the State failed to prove the elements of computer pornography and exploitation since the defendant never engaged in conversation with someone he believed to be a child.
The Court also held that the defendant was entitled to a jury instruction on entrapment.
Dennis Cosmo was charged with violating the “Computer or Electronic Pornography and Child Exploitation Prevention Act,” attempt to commit a felony (pandering), and three counts of criminal solicitation. Cosmo replied to a personal ad on Craigslist where a police officer was posing as a woman named “Amber” who indicated that she and several other “girls” were interested in providing sexual services. Cosmo and Amber began a conversation about the nature of the services, during which Amber indicated the other girls involved were her three daughters. Amber stated that she was 32 years-old and her daughters were all minors, ages 14, 12, and 9.
Eventually, Cosmo and Amber started communicating via phone and text messages about meeting plans. Cosmo eventually explained he was “not comfortable with this underage thing” and stated he wanted to meet with Amber alone. Cosmo reiterated his desire to meet only with Amber over several texts. Cosmo once again indicated he would not be comfortable with the involvement of the minors but still planned to meet with just Amber. When Cosmo showed up at the designated meeting place, he was arrested.
At trial, Cosmo testified that engaging in sex with a minor was entirely Amber’s idea and he just told her initially what he thought she wanted to hear. Cosmo testified he only intended to have a one-on-one sexual encounter with an adult and at no time did he intend to engage in sex with a minor. The jury was not given an instruction on the defense of entrapment and Cosmo was convicted.
Under O.C.G.A. § 16-12-100.2(d)(1), the computer pornography and exploitation act, it is unlawful to “intentionally or willfully utilize a computer on-line service or Internet service . . . 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 . . . .” Since Cosmo only communicated with “Amber”, and not a child or someone he believed to be a child, the Court of Appeals held that the State failed to prove the elements of the offense.
Regarding the entrapment issue, it is a general rule that the defendant must first admit that he committed the crime before he can assert the entrapment defense. An exception to this rule allows a defendant to maintain an entrapment evidence as long as it is not inconsistent with his denial of committing the crime. The Court of Appeals found that Cosmo’s testimony that the idea for the underage sex came from the undercover agent and that she induced him to agree to the underage sex by stating that she would not have sex with him if he refused was not inconsistent with his assertion that he did not commit the crime. Thus, the Court held that the evidence warranted a jury instruction on entrapment. As a result, the Court reversed Cosmo’s remaining convictions and held that he was entitled to a new trial on all charges.
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