In Muse v. State, the Georgia Court of Appeals affirmed the defendant’s convictions for attempted aggravated child molestation and attempted child molestation finding that it was for the jury to determine whether the State had disproved the defendant’s affirmative defense of abandonment.
The evidence showed that the defendant responded to a fake Craigslist ad posted by a police officer with the Georgia/FBI internet-crimes-against-children task force. In his response and subsequent email communications, the defendant communicated his desire to engage in sexual acts with someone he thought was a 14 year-old girl. Through email, the two established a time and location for the encounter—a motel in North Georgia. The defendant then traveled 90 miles to the hotel parking lot.
Five members of the task force also arrived in the parking lot at the meeting time, in unmarked cars and wearing shirts with FBI task force insignia. Two agents parked near the defendant in order to confirm his identity. The defendant subsequently left the parking lot at a high rate of speed, but was stopped and arrested soon after.
In order to support a conviction for criminal attempt under Georgia law, the evidence must show that “with intent to commit a specific crime, [the defendant] performs any act which constitutes a substantial step toward the commission of that crime.” The Court of Appeals held that the defendant’s communications in response to the ad, where he expressed a desire to engage in vaginal intercourse and sodomy with a 14 year-old girl, and his act of traveling more than 90 miles to an established location for the purposes of that encounter, provided sufficient evidence of a substantial step toward the commission of child molestation and aggravated child molestation.
The defendant asserted an affirmative defense of abandonment. Under Georgia law, a defendant may avail himself of this defense when “he abandoned his effort to commit the crime…under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.” Georgia law does not permit an abandonment defense where a person abandons the offense because he believes that circumstances exist which make committing the crime more difficult or increase the probability of being apprehended.
The Court acknowledged that the defendant left the parking lot immediately after law enforcement agents arrived wearing FBI task force insignia. Additionally, the State introduced a recording of the defendant’s post-arrest statements where he said he left because he did not feel “right”.
Based on this evidence, the Court of Appeals held that a reasonable jury could conclude that Muse believed the presence of the law enforcement officers increased the probability that he would be apprehended. According to the Court, this finding would be reasonable even if the jury concluded that the defendant did not know the individuals parked in the lot were law enforcement officers. Since it was for the jury to decide whether the State had disproved the affirmative defense, and because the jury so decided, the Court held that the evidence was sufficient to support the conviction.
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