Cosmo v. State
320 Ga. App. 397
Ga. Ct. App.2013Background
- Cosmo appeals his conviction for a violation of OCGA § 16-12-100.2 (d) (1).
- He also appeals convictions for attempt to commit a felony (pandering) and three counts of criminal solicitation.
- Conviction arose from online communications with an undercover agent posing as a woman and later a mother-daughter scenario involving alleged minors.
- The state’s evidence focused on Cosmo’s alleged intent and communications proposing sexual acts with a 14-year-old.
- Cosmo denied intent to commit sex with a minor, claiming he was misled by online impersonation and that he did not intend to engage with a minor.
- The trial court denied an entrapment instruction, and Cosmo was tried on multiple counts with a single jury verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for §16-12-100.2(d)(1) | Cosmo contends no interaction with a child or believed child occurred. | Cosmo argues the state failed to prove interaction with a child or someone believed to be a child. | Conviction reversed for §16-12-100.2(d)(1). |
| Entapment charge entitlement | State had evidence of entrapment; Cosmo presented entrapment evidence. | Whether entrapment instruction should be given depends on state’s evidence and defendant’s lack of inconsistent entrapment defense. | Remanded for new trial on Counts 2–5 due to failure to instruct on entrapment. |
Key Cases Cited
- Burmaster v. State, 233 Ga. 753 (Ga. 1975) (strict construction for criminal statutes)
- Cargile v. State, 194 Ga. 20 (Ga. 1942) (strict construction governs criminal statutes)
- Frix v. State, 298 Ga. App. 538 (Ga. App. 2009) (strict construction favors the accused when two constructions exist)
- Gregoroff v. State, 248 Ga. 667 (Ga. 1982) (entrainment defense exception to requiring admission of crime)
- St. Jean v. State, 255 Ga. App. 129 (Ga. App. 2002) (entrapment burden and entitlement standard)
- Ellzey v. State, 272 Ga. App. 253 (Ga. App. 2005) (three elements of entrapment; slight evidence suffices for charge)
- Logan v. State, 309 Ga. App. 95 (Ga. App. 2011) (sufficiency of evidence under §16-12-100.2(d)(1))
- Bolton v. State, 310 Ga. App. 801 (Ga. App. 2011) (particular online interaction sufficiency under §16-12-100.2(d)(1))