In State v. Cosmo, the Georgia Supreme Court partially reversed the Court of Appeals, holding that direct communication with a child was not required for a conviction under the old version of the Computer or Electronic Pornography and Child Exploitation Prevention Act, O.C.G.A. §16-12-100.2 (the statute was amended in 2013).
The record showed that the defendant communicated via internet, telephone, and text messages with who he thought was a woman named “Amber” regarding Amber’s offer to engage in a sexual encounter involving herself, the defendant, and at least one underage child that Amber claimed to be her daughter. Amber was actually an undercover law enforcement agent. Evidence showed that the defendant agreed to meet with Amber and a 14 year-old child, and set out in “explicit detail” specific acts he intended to engage in with the child. It was undisputed that the defendant never communicated with a person he believed to be a child, but only with Amber, who he believed to be the child’s parent.
On appeal, the defendant argued that the evidence was insufficient to support a conviction because there was no interaction between the defendant and a person he believed to be a child. The Georgia Court of Appeals reversed the conviction on the grounds that the statute did not apply to someone who communicated only with an adult or a person believed to be an adult (See, Convictions Reversed in North GA Internet Sting Case).
The Georgia Supreme Court disagreed with the Court of Appeals and held that the statute can be violated not only by committing prohibited acts, but by attempting to commit them. Specifically, the Court pointed out that the indictment accused the defendant of “attempting to solicit” a person he believed to be a child to commit child molestation and aggravated child molestation. For guidance as to what constitutes an “attempt”, the Court pointed to O.C.G.A. § 16-4-1 which provides that it contains two elements: (1) the intent to commit a crime and (2) a substantial step toward the commission of that crime.
The Court stated that “[c]ommunication with a person the defendant believes to be the parent of a child who is the object of the defendant’s attempt” satisfies the first element. Thus, the defendant’s communication with Amber established his intent to commit a crime.
The Court also held that the defendant had taken a substantial step toward the commission of the offense because he had discussed and negotiated the terms of an encounter with the child, traveled a substantial distance to meet with the child at the arranged place and time, and was taken into custody in possession of condoms. Therefore, the Georgia Supreme Court held that both elements to prove an attempt to solicit had been satisfied. As a result, the Court reversed the Court of Appeals and held that the defendant could be convicted of attempting to solicit a child to commit child molestation under O.C.G.A. § 16-12-100.2 (d)(1).
The Court, however, only partially reversed the Court of Appeals’ decision. The Court agreed that the defendant was entitled to a new trial due to the trial court’s refusal to instruct the jury on the defense of entrapment. So, the defendant will receive a new trial but will still be subject to prosecution under Georgia’s Computer Pornography and Exploitation Act.
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