A jury convicted Mohammed Leon Bolton of one count of computer pornography and child exploitation (“on-line solicitation”) (OCGA § 16-12-100.2 (d) (1)). Bolton appeals, challenging the sufficiency of the evidence and the effectiveness of trial counsel. Finding that the State proved the offense as charged and that counsel did not render ineffective assistance of counsel, we affirm.
The standard of review for sufficiency of the evidence in a criminal case is set out in Jackson v. Virginia[, 443 U. S. *802 307 (99 SC 2781, 61 LE2d 560) (1979)]. The relevant question is whether, after viewing the evidence in the light most favorable to the [verdict], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In addition, appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.
(Footnotes omitted.)
McKenney v. State,
So viewed, the evidence shows that on October 25, 2005, an “internet-crimes-against-children” officer employed by the Peach-tree City Police Department logged into a website denominated as the “Adult Friend Finder,” using the name “Shelby.” On that day, Bolton under the user name “I Mean Business,” began “messaging” Shelby.
Shelby and Bolton communicated further through MSN’s instant messaging program. Thereafter, Bolton messaged Shelby using the user ID “momusic36.” In the messaging which followed, Shelby disclosed that she was only 15-years old and sent Bolton a photograph of herself. Bolton questioned Shelby’s age based on her photograph, and after an exchange of messages of a sexual nature, asked if she “want[ed] to do it today.” Shelby responded that she was unable to sneak away from her aunt, but could meet the next day. Bolton suggested that he could secretly meet Shelby at her house during the night, indicating that “I do it all the time” and “[I] am really [horny], would love to see yo[u] tonight. I promise to be safe. I am an expert.” When Shelby resisted the nighttime rendezvous, Bolton responded “[U] asking me to take a risk that I could be locked up for and u can’t take this risk.” Ultimately, Bolton suggested the Peachtree City Wal-Mart store at 9:00 a.m. and provided Shelby his cell phone number. Shelby stated that she would be waiting in the store’s garden area and described the clothes that she would be wearing. As the exchange of messages ended, Bolton told Shelby that he was 19 years old and sent her a sexually explicit photograph. Earlier, he had described himself as a 40-year-old African-American man.
Prior to the meeting, Shelby learned that Bolton was using a computer located at the Harvest International Church in Clayton County. At or about the appointed time, officers observed Bolton drive into the Wal-Mart parking lot. Bolton exited his vehicle, entered and exited the Wal-Mart, and then proceeded to the store’s garden area. As Bolton walked past Shelby, who was dressed in the *803 clothes that she had previously described, Bolton said hello. Other officers entered and took Bolton into custody. As he was being placed in handcuffs, Bolton stated, “I was just going to talk to her.” Shelby then dialed the cell phone number that Bolton had provided. Bolton’s cell phone rang. Shelby verified that the call she placed from her cell phone had registered to Bolton’s cell phone.
1. Bolton contends that his conviction for computer pornography and child exploitation (“on-line solicitation”), OCGA § 16-12-100.2 (d) (1), must be reversed because the State failed to prove the underlying offense of child molestation as set out in the indictment. His contention is without merit.
The indictment charged that Bolton violated OCGA § 16-12-100.2 (d) (1) in that he
did intentionally and willfully utilize a computer on-line service: to wit: MSN, to solicit a person believed by said accused to be a child under the age of [16] to engage in conduct which would constitute a violation of OCGA § 16-6-4 by enticing said person to engage in an act of sexual intercourse, contrary to the laws of said State, the good order, peace and dignity thereof.
(Emphasis supplied.) OCGA § 16-12-100.2 (d) (1) pertinently provides:
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 16-6-4, relating to the offense of child molestation or aggravated child molestation ... or to engage in any conduct that by its nature is an unlawful sexual offense against a child.
(Emphasis supplied.)
Relying upon
Selfe v. State,
Selfe
is distinguishable based upon the trial evidence presented
*804
in that case. As an initial matter, the indictment in
Selfe
set forth proper allegations to sustain a violation of the on-line solicitation offense. See OCGA § 16-12-100.2 (d) (1);
Selfe,
supra,
Contrary to Bolton’s contentions in this case, the rulings in
Vines v. State,
Although the on-line solicitation crime references child molestation as an
underlying
purpose, the principal act proscribed by the crime is
solicitation
and does not require the accomplishment of an act of child molestation. See OCGA § 16-12-100.2 (d) (1). In this regard, the on-line solicitation offense is substantially similar and analogous to the offense of enticing a child for indecent purposes. See OCGA § 16-6-5 (a). “A person commits the offense of enticing a child for
*805
indecent purposes when he or she
solicits, entices,
or takes any child under the age of 16 years to any place whatsoever for the purpose of
child molestation
or indecent acts.” (Emphasis supplied.) Id. The statutory language in both OCGA §§ 16-6-5 (a) and 16-12-100.2 (d) (1) similarly proscribe the “solicit[ation]” or “entice[ment]” of a child for the underlying purpose of child molestation. In the context of OCGA § 16-6-5 (a), we have held that a conviction of the offense “need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted[.]” (Citation and punctuation omitted.)
Lasseter v. State,
Based upon the plain language of OCGA § 16-12-100.2 (d) (1) and the allegations of the indictment, the principal act constituting the offense was the use of a computer on-line service or internet service “to solicit... or entice” a person who he believed to be a child for the underlying purpose of child molestation. Here, the evidence establishes that Bolton committed the offense by using a computer on-line service to solicit sex from a person who he believed was a 15-year-old girl, an act which would have constituted child molestation. Contrary to Bolton’s contentions that there was a fatal variance between the allegations of the indictment and the trial evidence, the evidence set forth above was sufficient to establish his guilt of the on-line solicitation offense as charged. See OCGA § 16-12-100.2 (d) (1). See, e.g.,
Dennard v. State,
2. Bolton also challenges the effectiveness of trial counsel, arguing that trial counsel failed to request a jury charge on entrapment. Again, we discern no error.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.
(Citations and punctuation omitted.)
Robinson v. State,
If a defendant fails to prove one prong of this test, the reviewing court need not examine the other prong. . . . [Further,] [i]n reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, and we independently apply the legal principles to the facts.
(Punctuation and footnotes omitted.)
Burce v. State,
To establish his claim that trial counsel was ineffective in failing to request a jury charge on the affirmative defense of entrapment, Bolton was required to show that entrapment was raised by the evidence. See
Sanford v. State,
[a]s a general rule, in order to raise the defense of entrapment, the defendant must first admit the commission of the *807 crime and then show that he did so because of the unlawful solicitation or inducement of a law enforcement officer. The rationale for this rule is that it is thought to be factually inconsistent and confusing for a defendant to deny that he committed a criminal act and simultaneously to complain that he was entrapped into its commission. But, if a reasonable inference of entrapment may be drawn by a rational jury from the State’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.
(Citations and punctuation omitted.) Id.
Bolton did not admit to his commission of the crime. Nor do we find that the State’s case shows any evidence of entrapment. Specifically, the evidence shows: (i) that the notion of meeting for sexual activity originated with Bolton; (ii) that even after Shelby identified herself as 15 years old, Bolton was asking Shelby sexually explicit questions; and (iii) that Bolton was predisposed to commit the crime because he pursued the illicit activity he sought while contemporaneously expressing fear of the potential criminal sanctions he faced.
Under these circumstances, Bolton was not entitled to a jury charge on entrapment. Consequently, counsel’s failure to request a jury charge on entrapment was not deficient performance of counsel.
See Harvill v. State,
Judgment affirmed.
Notes
When the decisions in
Vines v. State,
We note that
Selfe
is also factually distinguishable since there was no evidence that the defendant solicited sex from the child. See
Selfe,
supra,