Georgia v. Cosmo, 2014 WL 1584512 (Ga.), April 2014

Appellant was convicted of, among other things, a violation of section (d)(1) of the former version of the “Computer or Electronic Pornographic 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). The state Supreme Court 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.

Facts: Appellant communicated via the internet, phone, and text message to who he thought was a woman offering to engage in sexual acts with appellant, herself, and one of her underage daughters (who Appellant was told was 14). The “woman,” was an undercover police officer. It is undisputed that appellant never directly communicated with a person he believed to be a child.

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, email, 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 in- decent 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.

The Lower Court: Cosmo appealed arguing that the evidence was insufficient to prove any communication between himself and a person he believed to be a child. The Court of Appeals reversed his conviction 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.”

Law/Analysis: The lower court failed to consider that the code makes it a crime to “attempt” to commit any of the aforementioned acts. 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 defend- ant’s attempt to solicit satisfies the intent element of the offense.

The evidence established, Appellant traveled a substantial distance from one part of the state to another to meet the child at the appointed place and time. When taken into custody, he had in his possession $300 cash, condoms, and a receipt for the purchase on that day of a male performance enhancement agent. This evidence would entitle a jury to find Cosmo had engaged in substantial steps to establish criminal attempt of the crime charged. See State v. Grube, 293 Ga. 257, 259–260(2), 744 S.E.2d 1 (2013); Brown v. State, 321 Ga.App. 798, 800(1), 743 S.E.2d 474 (2013).

Reversed, appellant may be retried on this count.  (Remember this was a Government appeal).

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