740 S.E.2d 400 | Ga. Ct. App. | 2013
Ryan Allen Castaneira was tried by a Fayette County jury and convicted of criminal attempt to commit child molestation,
On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that Detective Heather Jones is an officer with the Peachtree City Police Department whose job is to investigate Internet crimes against children. In September 2006, Detective Jones created an account on the Adult Friend Finder (“AFF”) website.
During the conversation that followed the exchange of photographs, Castaneira asked about April’s living situation and if she had “strict parents.” She responded that she had just recently moved to Georgia from North Carolina, that she lived with her aunt, and that she was home schooled together with her cousins. When Castaneira asked if April’s aunt would let him take her out, she replied “we don’t have to tell her”; Castaneira then stated “I like the way you think.” The two then discussed meeting in person, with Castaneira asking if April would be available to “hang out” for “at least an hour or two.” Castaneira also suggested the possibility that the two could go to a hotel. April and Castaneira then discussed the fact that April was a sexually inexperienced virgin, with Castaneira suggesting that he could perform oral sex on her.
Two days later Castaneira had a second online conversation with April, and on September 18 they had a third. April had to pause the third conversation at least twice, first telling Castaneira that her aunt was calling her and then reporting that her aunt kept coming into the room. During that conversation, Castaneira mentioned the possibility of meeting April later that week. After some discussion, they agreed to meet on the night of Wednesday, September 20, with April telling Castaneira that she would need to be home by “9:30 or so.” Castaneira then stated, “well, depending on how much time we have, we may not be able to use the hotel room to its full potential... but we could still have a lot of fun there.” He later told April that “since we won’t have all that much time, maybe we can just start
Castaneira chatted with April again on September 19, the day before their planned meeting, and told her he had driven to Peachtree City that day to locate the Kroger. He also asked her how she would get to Kroger, and she told him that a friend’s brother would drop her off. Castaneira instructed April to wait for him outside the grocery store and told her he would be driving a black car.
On September 20, Castaneira had another online conversation with April and asked her where he would be dropping her off after they were through “hanging out”; April replied that he could just drop her off at the Kroger. When April indicated that she was nervous about her first sexual encounter, Castaneira told her, “[w]e may not go all the way tonight, but I promise to make you feel good.” He then discussed the possibility of performing oral sex and digitally penetrating her, telling April, “I think you would really like [those things].”
That evening, Detective Jones, accompanied by other undercover officers, went to the designated meeting place and stood in front of the Kroger store. She was dressed as a young girl, wearing shorts, a t-shirt, and a baseball cap, and carrying a backpack. Shortly after 8:00 p.m., a black car drove past Detective Jones and from the picture he had sent, she recognized the driver as Castaneira. Castaneira parked and he and Detective Jones walked toward each other. Detective Jones asked Castaneira if he was Ryan; when he responded affirmatively and then said, “April,” she arrested him. The police obtained a search warrant for Castaneira’s car, from which they recovered a bottle of lubricant, a condom, a laptop computer, and a small amount of marijuana.
Castaneira’s defense was that he lacked the requisite intent to commit the crimes at issue, because he did not believe he was in contact with or going to meet a 15-year-old girl. Specifically, evidence was introduced showing that Castaneira and his wife met on the AFF website and that they were “swingers” — i.e., they were a couple who, as a couple, enjoyed participating in sexual activities with other couples. Both Castaneira and his wife testified that they liked to participate in sexual “role play,” and that they advertised on the AFF
In support of his testimony, Castaneira introduced a copy of an e-mail that he allegedly sent to April on September 18, 2006. The e-mail begins, “Hey Guys,” and is written as if it were going to a couple, with Castaneira asking “where all have you two searched ... for other couples to swing with” and “how long have you two been in the lifestyle?” The e-mail goes on to apologize for not remembering all the details of their conversation, explaining that Castaneira had been overwhelmed with school and work and noting that he had and his wife had received numerous responses to their online ads seeking other couples. Castaneira also writes, “So I can tell you’re into role playing. What other roles do you play? From what I can remember you [April] like to play a home-school[ed] girl. And what does he play?”
There was no evidence, however, that Detective Jones ever received this e-mail. And on cross-examination, Castaneira admitted that this was an e-mail he furnished to his lawyer sometime following his indictment, claiming that he had found it by logging into his e-mail account; neither police nor Castaneira’s own computer expert had located the e-mail on his laptop’s hard drive. Castaneira further admitted that, even after he allegedly sent the e-mail, he continued to correspond with April and arranged for their meeting. He also acknowledged that there was nothing in April’s AFF profile or in their conversations that indicated she was part of a couple.
Based on the foregoing evidence, the jury found Castaneira guilty. He then filed a motion for a new trial, which was denied. This appeal followed.
1. We first address Castaneira’s claim that the trial court erred in refusing to instruct the jury on mistake of fact. There is nothing in the record that shows Castaneira ever requested a charge on mistake of fact. Moreover, during the charge conference, the trial court stated that it was not going to give an instruction on mistake of fact, noting that the charge “which uses the word induced is not quite applicable.” The court stated that instead it would give a charge on the State’s burden of proof as to the defendant’s knowledge of the facts necessary to commit the crime. Castaneira’s lawyer did not object to this proposal, nor did she object to any part of the charge after it was given.
Mistake of fact represents an affirmative defense, under which “[a] person shall not be found guilty of a crime if the act . . . constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” OCGA § 16-3-5. See also Price, supra at 459 (2). A defendant is not entitled to a jury charge on this defense, however, where the evidence shows that his ignorance or mistake of fact was “superinduced by the [defendant’s own] fault or negligence.” (Citation and punctuation omitted.) Gabriel v. State, 280 Ga. 237, 240 (5) (626 SE2d 491) (2006). Here, it appears that the trial court concluded that any mistake of fact by Castaneira resulted from his own fault or negligence. We agree.
This is not a case where an adolescent led the defendant to believe that she was an adult; rather, this is a case where the intended victim told the defendant that she was underage. And, having been made aware of that fact, Castaneira nevertheless continued his contact with April, engaging her in sexually explicit conversations and arranging to meet her for a sexual encounter. Even though Castaneira claimed that he believed “April” was an adult playing the role of an adolescent, he took no steps to confirm this belief. Specifically, after being informed that April was 15, Castaneira never asked her if she was, in fact, an adult posing as a child before arranging to meet her. Thus, any mistake or ignorance on Castaneira’s part resulted from his own failure to inquire further into April’s actual age. See Gabriel, supra at 240 (5). “It follows that a charge on mistake of fact under OCGA § 16-3-5 was not authorized.” (Citation omitted.) Id.
Moreover, assuming that the evidence did raise the affirmative defense of mistake in fact, we still find no error in the trial court’s failure to give the specific charge at issue. “Atrial court... need not specifically charge on an affirmative defense when the entire charge fairly presents the issues, including the defendant’s theory, to the jury.” (Citations omitted.) Tarvestad, v. State, 261 Ga. 605, 606 (409
2. Castaneira also asserts that the evidence is insufficient to sustain his convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes. With respect to this claim of error,
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. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.
(Citation and footnote omitted.) Wade v. State, 305 Ga. App. 819, 821 (701 SE2d 214) (2010).
To convict Castaneira of criminal attempt to commit child molestation the State was required to prove that he took a substantial step toward 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].” OCGA §§ 16-6-4 (a) (1); 16-4-1. To convict Castaneira of criminal attempt to
Castaneira contends that the State failed to prove beyond a reasonable doubt that he believed “April” was a 15-year-old girl, rather than an adult playing the role of an adolescent, and it therefore failed to prove that he had the requisite knowledge and intent to commit these crimes. We find no merit in this contention. While Castaneira did introduce some evidence, in the form of his September 18 e-mail, to support his claim that he believed he was dealing with an adult, that evidence was not conclusive. As noted above, the State impeached that evidence by showing that Detective Jones never received it, and that neither Castaneira’s own computer expert nor local police were able to locate that e-mail on the hard drive of Castaneira’s laptop. Moreover, even after Castaneira allegedly sent that e-mail, he continued conversing with “April” without clarifying her age. And the content of his messages, including his questions about how she would get to the Kroger, where he should drop her off after their encounter, and what time she had to be home, indicated a belief that he was communicating with someone under the age of 16. Additionally, although Castaneira contended that he believed “April” was part of a couple, he conceded during his testimony that nothing in her AFF profile or in their conversations supported that belief. Finally,
given that [Castaneira] testified at trial as to the reasons underlying his conduct, it was solely for the jury, viewing that testimony in light of the other evidence, to assess [Castaneira’s] credibility and determine whether his testimony was truthful. And if the jury concluded that his testimony was not truthful, as we must assume it did, the jury was entitled to take his untruthfulness as substantive and affirmative evidence of his guilt.
(Citations and punctuation omitted.) Louisyr v. State, 307 Ga. App. 724, 730 (1) (706 SE2d 114) (2011). Accordingly, the evidence is sufficient to sustain the convictions. See Logan v. State, 309 Ga. App. 95, 99-100 (2) (a) (709 SE2d 302) (2011) (evidence that defendant asked an undercover officer posing online as adolescent to engage in sexual intercourse and oral sodomy, even after being told that person was 14, and that defendant went to the location the two had discussed meeting for sex, in possession of a condom on his person, sufficed to
3. Castaneira next claims that he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance, Castaneira bears the burden of proving both that the performance of his lawyer was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). If Castaneira cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). Here, we find that Castaneira failed to establish that his lawyer’s performance was deficient.
In determining whether defense counsel afforded his client adequate representation, “we bear in mind that ‘judicial scrutiny of counsel’s performance must be highly deferential.’ Strickland, 466 U. S. at 689 (III) (A).” Arnold v. State, 292 Ga. 268, 270 (2) (a) (737 SE2d 98) (2013). Thus,
[t]o demonstrate deficient representation, a convicted criminal defendant must show that counsel’s representation fell below an objective standard of reasonableness. Such a defendant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case.
(Citation, punctuation and footnote omitted.) Smith v. State, 302 Ga. App. 128, 133 (2) (690 SE2d 449) (2010).
Castaneira’s ineffective assistance claim is premised on his lawyer’s failure to object to the admission of certain material recovered from the hard drive of his laptop computer. This material, which Castaneira contends unduly prejudiced him, consisted of pornographic images, including videos that showed Castaneira performing sex acts either alone or with his wife. At the motion for new trial hearing, trial counsel testified that her decision not to object to the admission of these materials was strategic in nature. She explained that the evidence included “some information that we needed in our
Given the strategic nature of counsel’s decision with respect to this evidence, it “can provide no grounds for reversal unless it was so patently unreasonable that no competent attorney would have chosen it.” (Citation, punctuation and footnote omitted.) Mantooth v. State, 303 Ga. App. 330, 336 (1) (b) (693 SE2d 587) (2010). And it is Castaneira who bears the burden of rebutting the strong presumption that this strategy was a reasonable one, made in the exercise of reasonable professional judgment. Thornton v. State, 301 Ga. App. 784, 793 (4) (689 SE2d 361) (2009). Castaneira cannot carry this burden.
The evidence against Castaneira was so substantial that his defense was to concede the conduct, but argue a lack of knowledge or intent. And to prove that lack of knowledge, Castaneira had to reveal his lifestyle as a swinger to the jury. Given these circumstances, trial counsel’s decision to use the information and images contained on Castaneira’s computer to argue that he would never knowingly attempt to seduce a 15-year-old was not an unreasonable strategy. See, e.g., Norton v. State, 320 Ga. App. 327, 333 (3) (739 SE2d 782) (2013) (given the substantial evidence against defendant, defense counsel acted reasonably in conceding possession charges and arguing that while defendant was a user of methamphetamine, he was not a drug trafficker); Paul v. State, 257 Ga. App. 86, 87 (570 SE2d 399) (2002) (“considering the overwhelming evidence” that defendant had committed the crime at issue, trial counsel acted reasonably in arguing “that the State could prove robbery, but not armed robbery”). “That this strategy was ultimately unsuccessful in securing a defense verdict on all charges does not show that trial counsel’s” performance was deficient. Farris v. State, 293 Ga. App. 674, 678 (3) (667 SE2d 676) (2008). Accordingly, the performance of Castaneira’s trial counsel was not deficient.
4. Castaneira also asserts that the trial court erred in admitting into evidence transcripts of all of the online conversations between Castaneira and Detective Jones, posing as April. We disagree.
Detective Jones testified that although she could print out copies of her computer screen as an online chat occurred, she did not preserve the conversations in this fashion. Instead, she prepared a
Relying on Detective Jones’s testimony that she could have printed out copies of her computer screen as each conversation transpired, Castaneira argues that the trial court abused its discretion in admitting the transcripts, because they violated OCGA § 24-5-4,
Under Georgia law, transcripts of conversations that occurred via online instant messaging are admissible provided they are created and/or authenticated by someone who participated in that conversation, and who testifies “that the transcript accurately represent^] the on-line conversation.” (Footnote omitted.) Ford v. State, 274 Ga. App. 695, 697 (1) (61-7 SE2d 262) (2005). Here, Detective Jones testified that she participated in all of the online conversations with Castaneira; that she created the transcripts by copying the text exactly as it appeared on her computer screen, without making any additions, omissions, or other alterations to that text; and that the transcript reflected the exact words used in the conversation, as well as the online names used by the persons who typed those words. “Under these circumstances, [Detective Jones’s] testimony was tantamount to that of a witness to an event and was sufficient to authenticate the transcript.” (Footnote omitted.) Id. at 698 (1). See
Additionally, we find no merit in Castaneira’s claim that because the transcripts introduced at trial were photocopies of the ones originally printed out by Detective Jones, their admission violated OCGA § 24-5-4. The best evidence rule does not prohibit the introduction of photocopies, so long as the originals are “satisfactorily accounted for.” OCGA § 24-5-4 (a). Here, the original transcripts were accounted for as having been placed in the case file, and there is no evidence that the photocopied transcripts were not exact duplicates of the originals. “Under these facts, the trial court did not abuse its discretion in admitting photocopies.” (Citation omitted.) Chastain v. State, 231 Ga. App. 225, 226 (2) (498 SE2d 792) (1998).
5. Castaneira further claims that the trial court erred in sentencing him, because it failed to follow the guidelines set forth in OCGA § 17-10-6.2.
Here, the trial court sentenced Castaneira to concurrent sentences of ten years imprisonment for both criminal attempt to commit child molestation (Count 1) and criminal attempt to entice a child for indecent purposes (Count 2); twelve months imprisonment for possession of marijuana (Count 6), concurrent with Count 1; ten years probation for computer pornography and child exploitation (Count 3), consecutive to Count 1; and ten years probation for obscene Internet contact (Count 4), consecutive to Count 3. The court also imposed fines of $25,000, $10,000, and $1,000 on Counts 3, 4, and 6, respectively. These sentences were within the statutory range. See OCGA §§ 16-4-6 (b) (criminal attempt to commit a felony punishable by “impris
6. Finally, Castaneira contends that the trial court erred in failing to merge his convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes. We disagree.
“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.” OCGA § 16-4-1. Here, the State alleged that Castaneira took substantial steps toward committing both child molestation and enticing a child for indecent purposes when he: (i) solicited April, whom he believed to be 15 years old, to meet at the Kroger “for the purpose of engaging in acts of sexual intercourse and oral sodomy involving the sex organs of the person believed by the accused to be a child under 16 years of age and the mouth of the accused”; and (ii) traveled to the Kroger to meet with April. Because his conviction for both crimes was premised on the exact same conduct, Castaneira argues, the trial court should have merged those convictions as a matter of fact.
Under OCGA § 16-1-7, when the same conduct of an accused establishes “the commission of more than one crime, the accused may be prosecuted for each crime,” unless “[o]ne crime is included in the other.” OCGA § 16-1-7 (a) (1). 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, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, we examine “whether each offense requires proof of a fact which the other does not.” Lucky v. State, 286 Ga. 478, 481 (689 SE2d 825) (2010). Here, to convict Castaneira of criminal attempt to commit child molestation, the State had to prove that he took a substantial step toward doing an immoral or indecent act to or with someone he believed to be under the age of 16, “with the intent
Judgment affirmed.
OCGA §§ 16-4-1; 16-6-4 (a) (1).
OCGA §§ 16-4-1; 16-6-5 (a).
OCGA § 16-12-100.2 (d) (1).
OCGA § 16-12-100.2 (e) (1).
OCGA § 16-13-2 (b).
Although the website states that no one under the age of 18 is permitted to access it, the site does not require that a user provide proof of their age.
OCGA § 24-5-4 was in effect at the time of Castaneira’s trial. Effective January 1, 2013, this Code provision was replaced by OCGA § 24-10-1002 (“[t]o prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required”) and OCGA § 24-10-1003 (“A duplicate shall be admissible to the same extent as an original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) A circumstance exists where it would be unfair to admit the duplicate in lieu of the original.”).
That statute provides, in relevant part, that when a defendant is convicted of certain sexual offenses, including child molestation and enticing a child for indecent purposes, he “shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense . . . and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year.” OCGA § 17-10-6.2 (b). The statute also grants the trial court discretion, under certain circumstances, to “deviate from the mandatory minimum sentence.” OCGA § 17-10-6.2 (c) (1).
