State v. Cosmo
295 Ga. 76
Ga.2014Background
- Dennis Cosmo communicated online, by phone, and by text with an undercover officer posing as "Amber," who claimed her daughters (one aged 14) would engage in sex with Cosmo. Cosmo negotiated explicit sexual acts and agreed to meet.
- Cosmo never communicated directly with anyone he believed to be a child; he only dealt with the person he believed was the mother.
- He was indicted under the then-existing OCGA § 16-12-100.2(d)(1) for attempting to solicit a child to commit unlawful sexual acts.
- The Court of Appeals reversed Cosmo’s conviction, holding the statute’s plain meaning required direct communication with the child or someone believed to be a child.
- The Georgia Supreme Court granted certiorari to decide whether direct communication with a child is required to convict under the statute as charged (attempt to solicit).
- The Supreme Court concluded that attempt liability under the statute can be established by communications with an adult intermediary the defendant believes has custody or control of the child, and reversed the Court of Appeals as to this issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under OCGA § 16-12-100.2(d)(1) requires direct communication with the child | State: attempt to solicit can be proven by intent and substantial steps, even via an intermediary | Cosmo: solicitation requires direct communication with the minor; no evidence he communicated with a child | Held: Direct communication with the child is not required; communication with an adult intermediary can satisfy intent and substantial-step elements for attempt |
| Whether intent element is met by negotiating with an adult believed to be the child’s parent | State: negotiating with a parent/intermediary demonstrates intent to solicit the child | Cosmo: intent to solicit a child not shown absent direct contact with child | Held: Intent satisfied by communications with adult intermediary believed to control the child |
| Whether substantial-step element was established by Cosmo’s conduct | State: travel to meeting site, cash, condoms, explicit statements constitute substantial steps | Cosmo: steps insufficient without contact with child | Held: Evidence (travel, paraphernalia, statements) established substantial step toward solicitation |
| Whether federal analogues bear on statutory construction | State: federal courts interpreting 18 U.S.C. § 2422(b) allow intermediary communications to support attempt convictions | Cosmo: federal cases distinguish solicitation and inducement | Held: Court relied on federal authority to support that intermediary communications suffice for attempt under the Georgia statute |
Key Cases Cited
- United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004) (holding communication with an adult intermediary who purportedly controlled a minor can satisfy attempt to induce a minor under § 2422(b))
- United States v. Nestor, 574 F.3d 159 (3d Cir. 2009) (concluding attempt liability under § 2422(b) does not require direct communication with the minor)
- United States v. Douglas, 626 F.3d 161 (2d Cir. 2010) (upholding conviction where defendant communicated with purported mother as attempt to entice minors)
- United States v. Spurlock, 495 F.3d 1011 (8th Cir. 2007) (holding conversation with purported parent constituted attempt to persuade minors)
- United States v. Caudill, 709 F.3d 444 (5th Cir. 2013) (finding communication with an adult supervising minors sufficient for attempt to persuade or entice)
- United States v. Berk, 652 F.3d 132 (1st Cir. 2011) (upholding attempt conviction based on communication with an adult intermediary)
- State v. Grube, 293 Ga. 257 (Ga. 2013) (discussing sufficient proof of substantial-step elements for attempt in Georgia)
- Brown v. State, 321 Ga. App. 798 (Ga. Ct. App. 2013) (addressing evidentiary sufficiency for attempt-related convictions)