State v. Cosmo

295 Ga. 76
FINAL COPY

S13G1070. THE STATE v. COSMO.

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 SE2d

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

1
The Court of Appeals’ reversal of convictions and remand for retrial as a result of the trial
court’s failure to charge on entrapment is not impacted by this Court’s ruling.
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. 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

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 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. 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

2
Effective July 1, 2013, this Code Section was amended, in pertinent part, to insert the
phrase “any person having custody or control of a child, or another person believed by such person
to have custody or control of a child,” after the phrase “or another person believed by such person
to be a child . . . .” See Ga. L. 2013, p. 663 § 3/HB 156.

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“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):

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 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 F3d 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

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 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 attempt. Id. At least five other

federal appellate courts have also held that conviction under 18 U.S.C. § 2422

(b) does not require communication directly with a child but that the

communication may be with an adult intermediary.3

3
See United States v. Caudill, 709 F3d 444 (5th Cir. 2013) (defendant’s communication with
a person he thought to be an adult who was supervising minor children was sufficient to show a
knowing attempt to persuade, induce, or entice the minors); United States v. Berk, 652 F3d 132, 140

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 Cosmo urges that attempting to solicit a minor to engage in illegal

conduct, pursuant to OCGA § 16-12-100.2 (d) (1), is materially distinguishable

from attempting to induce a minor to engage in illegal conduct pursuant to 18

U.S.C. § 2422 (b), the criminal activity for which the defendant in the Murrell

case was found guilty. This is because, Cosmo asserts, solicitation requires a

direct communication with the minor. We disagree. 18 U.S.C. § 2422 (b)

relates to conduct whereby the defendant “knowingly persuades, induces,

entices, or coerces” a minor to engage in prohibited sexual conduct. In United

States v. Nestor, the Third Circuit Court of Appeals examined the term

“persuade,” another term used in the federal statute, and concluded that

persuasion does not require direct communication with the person the actor

seeks to persuade because, for example, “[b]usinesses and individuals regularly

seek to persuade others through advertising intermediaries and negotiating

(1st Cir. 2011), cert. denied, ___ U. S. ___ (132 SCt 1650, 182 LE2d 245) (2012) (defendant’s
communication with one he thought was the minor’s mother was sufficient to support conviction for
attempt to entice a minor to engage in sexual activity in violation of the federal statute); United
States v. Douglas, 626 F3d 161, 164-165 (2d Cir. 2010) (defendant’s conversation with purported
mother of minors constituted an attempt to persuade the minors through their mother to engage in
prohibited sexual conduct); United States v. Nestor, 574 F3d 159, 162 (3d Cir. 2009) (because the
crime defined by 18 U.S.C. § 2422 (b) is one of attempt, a defendant who communicates with an
adult intermediary to attempt to persuade, induce, entice, or coerce the child can be held to violate
the statute); United States v. Spurlock, 495 F3d 1011, 1014 (8th Cir. 2007) (defendant’s conversation
with purported mother of minors constituted an attempt to persuade the minors through their mother
to engage in prohibited sexual conduct).

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agents.” 574 F3d 159, 162, n. 4. Likewise, a solicitation of another may be

made by communication with a third party. Just as solicitation of prostitution

can be made through a third party pimp, solicitation of a child to commit the acts

prohibited by OCGA § 16-12-100.2 (d) (1) may be conducted through an adult

intermediary who is believed to be in a position of trust or authority with respect

to the child. As the Eleventh Circuit Court stated in Murrell, “the efficacy of

[the statute] would be eviscerated if a defendant could circumvent the statute

simply by employing an intermediary to carry out his intended objective.”

Murrell, supra, 368 F3d at 1287. Certainly, the intent to solicit a child for

illegal sexual activity may be established by communication with such an adult

intermediary. The intent element of attempt to solicit a child pursuant to OCGA

§ 16-12-100.2 (d) is established by the evidence in this case.

The second element of criminal attempt with respect to the crime charged

— the taking of a substantial step toward the commission of soliciting a child

— is also established in this case. Cosmo engaged in several communications

with the undercover officer whom he believed to be the minor child’s mother to

discuss and negotiate the terms of an encounter with the child. He traveled a

substantial distance from one part of the state to another to meet the child at the

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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 SE2d 1)

(2013); Brown v. State, 321 Ga. App. 798, 800 (1) (743 SE2d 474) (2013). In

fact, the jury, which was instructed on criminal attempt, found Cosmo guilty.

Accordingly, that portion of the Court of Appeals opinion finding Cosmo

may not be convicted of that count of the indictment charging him with violating

OCGA § 16-12-100.2 (d) (1) by attempting to solicit a child, because the

evidence shows he did not interact directly with a person he believed to be a

child, is reversed. Upon remand of the case to the trial court, Cosmo may be

retried on this count of the indictment.

Judgment reversed in part. All the Justices concur.

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 Decided April 22, 2014.

Certiorari to the Court of Appeals of Georgia – 320 Ga. App. 397.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant

District Attorney, for appellant.

Adam M. Hames, for appellee.

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