After a bench trial, Anthony Scott Brown was convicted of criminal attempt to commit child molestation, OCGA §§ 16-4-1,16-6-4 (a) (1), and computer child exploitation, OCGA § 16-12-100.2 (d) (1). He appeals. Because we find that the evidence was sufficient, that the state had jurisdiction to prosecute Brown for these offenses, and that the offenses did not merge for sentencing, we affirm.
1. Sufficiency of the evidence.
Brown argues that the evidence was insufficient to support his conviction for attempted child molestation. When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia,
So viewed, the evidence showed that on June 3, 2009, a Whitfield County, Georgia, sheriffs deputy posted a “Craigslist” advertisement in which he purported to be “Brittany,” a female looking for male companionship. Brown, a 26-year:old Tennessee resident, responded to the advertisement. The two began communicating, first by e-mail and then by Internet instant messages. In a June 7 e-mail, “Brittany” told Brown that she was only 14 years old. Brown then asked what she had in mind, and “Brittany” gave a vague response. Brown then responded: “ah, i see i see, so your looking for someone to basicly, take your virginity, and show you the world of such pleasures, well i súpose i could help you with that, if your interested.”
i could teach you everything if you like, but only if you feel comftable enough to learn, and don’t worry i know your not some sort of a nasty girl, i can tell you really don’t know much, i do need to know though, you are a virgin right? you know your first time might hurt some, so i need to know so i could try to make things as painless as possible.
Later on June 7, in a series of instant messages, Brown and “Brittany” discussed more specifically where in Georgia she lived, and Brown again asked what she would be comfortable doing, mentioning both oral and vaginal sexual contact. He then asked, “if we was to meet up, do you have any place in mind, or know of any places where we wouldnt be botherd during your learning process?” “Brittany” replied that she often would sneak out and meet friends behind her apartment. Brown emphasized that he was “serious about meeting up” with “Brittany.”
On June 14, Brown initiated another series of instant messages with “Brittany.” Brown asked whether she had found a “teacher” and stated that he would “still be willing to if your still interested.” He asked “Brittany” when she “would like to do this,” and the two arranged for a date and time to meet at her apartment. Brown asked “where are we going to do this” and suggested her room. When “Brittany” expressed concern about getting hurt, Brown responded, “I’ll try not to,... i mean you know losing your virginity will be alittle painfull right?” He asked that “Brittany” “wear as little as possible” when
The two engaged in another series of instant messages on June 15 and 16. Brown asked “Brittany’ to masturbate and digitally penetrate herself in preparation for their meeting. He later asked her how it felt and stated that it “will feel even better when someone eles does it.” He also asked questions about how to contact her and find her apartment. And he again stated that he did not know if “Brittany” would experience pain and again suggested that she masturbate and digitally penetrate herself to give her “an idea of what it would feel like to lose your virginity.”
On June 18, Brown asked “Brittany” in an instant message if she was looking forward to their meeting, planned for the next day, and the two confirmed the time and place of their meeting. Brown described the vehicle he would be driving and the clothes he would be wearing. The following morning, Brown arrived at the planned location in Whitfield County, Georgia, where law enforcement officers arrested him.
This evidence was sufficient to show attempted child molestation. The state was required to prove that Brown “took a substantial step towards doing ‘any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or (himself).’ ” (Quoting OCGA § 16-6-4 (a) (1), citing OCGA § 16-4-1.) Castaneira v. State,
2. Jurisdiction.
Brown argues that the state lacked jurisdiction to prosecute him because he was a Tennessee resident with no ties to Georgia -before being lured to this state by law enforcement officers. But Georgia law pertinently provides that “a person shall be subject to prosecution in this state for a crime which he commits, while either within or outside the state, . . . if . . . [t]he crime is committed either wholly or partly within the state[.]” OCGA § 17-2-1 (b).
The state had jurisdiction under OCGA § 17-2-1 to prosecute Brown for attempted
The state also had jurisdiction under OCGA § 17-2-1 to prosecute Brown for computer child exploitation. The Code section establishing that crime subjects a person to prosecution in Georgia under OCGA § 17-2-1 for “any conduct made unlawful by [OCGA § 16-12-100.2] which the person engages in while... [e]ither within or outside of this state if, by such conduct, the person commits a violation of [OCGA § 16-12-100.2] which involves ... another person believed by such person to be a child residing in this state.” OCGA § 16-12-100.2 (h). Here, the evidence showed that, after being told that “Brittany” lived in Georgia, Brown violated OCGA § 16-12-100.2 by utilizing computer on-line services to continue to communicate with her and to entice her to meet him to engage in sexual activities. See OCGA § 16-12-100.2 (d) (1) (making it unlawful for any person intentionally or wilfully to, inter alia, utilize a computer on-line service to entice or attempt to entice a person believed to be a child to commit any illegal act described in OCGA § 16-6-4 relating to child molestation). In addition, in addressing violations of OCGA § 16-12-100.2, Georgia courts have held that a defendant utilizes computer on-line services in the county of the recipient of the computer messages, even when the defendant sent the messages from elsewhere. See Patel v. State,
3. Merger.
Alternatively, Brown argues that, for sentencing purposes, his conviction for attempted child molestation must merge into his conviction for computer child exploitation. The parties dispute whether merger is precluded by the provision of the computer child exploitation statute, which states that “[a]ny violation of this Code section shall constitute a separate offense.” OCGA § 16-12-100.2 (i). We note that our Supreme Court has held that similar language in the statute establishing the offense of possession of a firearm or knife during the commission of a felony, OCGA § 16-11-106 (e), evidences a “legislative intent to provide punishment for both the possession offense and the predicate felony.” State v. Marlowe,
Even if, as Brown contends, merger of a computer child exploitation statute offense with an attempted child molestation offense is required in an appropriate case — OCGA § 16-12-100.2 (i) notwithstanding — merger is not required in this case. “To determine if one crime is included in and therefore merges with another, we apply the ‘required evidence’ test set forth in Drinkard v. Walker,
Judgment affirmed.
Notes
We have quoted Brown’s statements exactly as they appear in the e-mails and instant messages, including any spelling or other errors.