Following a trial by jury, Preston Muse was convicted of criminal attempt to commit aggravated child molestation and criminal attempt to commit child molestation. On appeal from these convictions, Muse asserts that (1) the State failed to prove that he did not abandon the attempts and (2) he is entitled to a new trial in light of newly discovered evidence. For the reasons set forth infra, we affirm Muse’s convictions.
Viewed in the light most favorable to the jury’s guilty verdict,
Over the course of several weeks, Muse contacted Father Dave multiple times to set up a time and location to meet the stepdaughter for the sexual encounter, communicating via e-mail, phone calls, and text messages. Eventuаlly it was agreed that Muse would drive from Atlanta to a motel in north Georgia, where he would meet Father Dave and the girl.
On the day in question, Muse and Father Dave sent text messages back and forth regarding the details of the meeting time and location, and at one point Muse requested a nude photograph of the girl and inquired as to her hygieniс habits. Although Muse indicated that he would be late to the meeting and driving a black Ford F150 truck, he showed up on time in a white GMC truck and parked outside of the room number designated by Father Dave. Five task force members arrived at the hotel parking lot at the meeting time in unmarked vehicles and wearing t-shirts that bore an FBI task force insignia on the left breast.
The lead agent posing as Father Dave and an adult female companion arrived in a silver Mazda, the type of car Muse was told to expect, and parked next to the white GMC. The agent believed he recognized Muse as the truck’s occupant from the photograph Muse had provided. Thereafter, at the lead agent’s request, another agent pulled into the parking space beside the Mazda, rolled down his window, examined the truck’s occupant, agreed that it was Muse, and relayed same to the agent in the Mazda before returning to his original strategic parking location.
At that point, Muse exited the motel parking lot at a high rate of speed and drove onto the interstate. The agents pursued Muse, initiated a stop, and made an arrest. Muse was then taken to the FBI office and spoke with law enforcement voluntarily. This appeal follows Muse’s indictment for and subsequent conviction on charges of attempted child molestation and attempted aggravated child molestation, and the trial court’s denial of his motion for new trial.
At the outset, we note that 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.”
1. Muse first argues that the evidence against him was insufficient because the State’s evidence failed to prove that he did not abandon the attempted crimes of child molestation and aggravated child molestation. We disagree.
To begin with, a person commits child molestation when he or she “[d]оes 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 the person”
In the case sub judice, Muse was convicted of attempting to commit child molestation and aggravated child molestation on the basis of his communications with Fathеr Dave, in which he expressed a desire to engage in sodomy and vaginal intercourse with a 14-year-old female, and his act of traveling over 90 miles to the north Georgia motel on a predetermined date and time for the purpose of same. The evidence of Muse’s extensive communications expressing his sexual desires after learning the child’s age and his decision to travel to an established meeting location for the purpose of engaging in the planned encounter provided sufficient evidence of a “substantial step” to sustain his convictions for attempted child molestation and attempted aggravated child molestation.
With regard to the defense of abandonment, when a person’s conduct would otherwise constitute an attempt to commit a crime under OCGA § 16-4-1, “it is an affirmative defense that he abandоned his effort to commit the crime . . . under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.”
Here, Muse did not testify, but he argues that there was evidence at trial to show abandonment in that he left the motel parking lot. And while the evidence indeed showed that Muse left the parking lot shortly after law enforcement’s arrival, the evidence also showed that the undercover agents wore t-shirts bearing a large task-force insignia on the front breast, that at least two agents in two separate cars parked next to Muse and scrutinized him to make an identification, that the two agents — one occupying a car Muse was led to believe contained “Father Dave” — communicated through open windows about Muse’s identification, that the second agent moved his car back to a strategic position after identifying Muse, and that Muse left the parking lot at a “high rate of speed” almost immediately after this transpired. Additionally, the jury heard a recording of the statements Muse made to law enforcement following his arrest and, although
Based on the foregoing evidence, even if the jury did not conclude that Muse knew thаt the individuals in the cars were law-enforcement officers, “[Muse] was acutely aware of the individual [s’] presence, and a reasonable jury could conclude that [Muse] believed the individual[s’] presence increased the probability of his apprehension.”
2. Muse next argues that the trial court abused its discretion in denying his extraordinary motion for a new trial based on newly discovered evidence. Once again, we disagree.
Pursuant to OCGA § 5-5-23,
[a] new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its chаracter but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.
When we review the denial of an extraordinary motion for new trial based on newly discovered evidence, our review “is circumscribed because motions for new trial on this ground are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless that discretion is abused.”
(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.16
And here, the State discovered, following Muse’s convictions, that the Craig’s List posting presented to the jury at trial was not the posting to which Muse responded. Upon learning this, Muse made an extraordinary mоtion for new trial pursuant to OCGA § 5-5-23. He asserted before the trial court, and continues to assert before this Court, that the language in the posting presented at trial — as opposed to the posting to which he actually responded — strongly implicated that it sought a participant for a potentially illegal
The record reflects that the State presented the jury with the following internet post as being that to which Muse responded:
Looking for a special bread [sic] of man who would be interest [sic] in helping me with the training of my yOu ng [sic] female friend. Must be someone who is completely open minded and who understand [sic] the importance of teaching the finer aspects of womanhood. I am completely straight and there will be no male to male contact, but I will be there to watch. If you are looking for a special adventure ... drop me a line.
However, the posting to which Muse actually responded, which was titled “Interested in Fa/Dau Meeting??,” read as follows:
Atruely [sic] unique opportunity fоr the right man. I’m a 55 year old [white male] who really likes to watch. My partner is a daughter type who likes to be watched. If any of this seems interesting to you[,] drop me a [message] and we can talk about it.
The trial court denied Muse’s extraordinary motion for new trial, determining that Muse had knowledgе of the correct posting prior to trial and that, even if he did not, the correct posting was not so material as to produce a different result. The trial court did not abuse its discretion in making this determination. Indeed, Muse was the party who actually responded to the Craig’s List post and, accordingly, was necessarily aware of its content.
Accordingly, for all the foregoing reasons, we affirm Muse’s convictions.
Judgment affirmed.
Notes
See, e.g., Castaneira v. State,
After the initial response, various task force members acted as Father Dave when communicating with Muse through different means.
In response to this request, law enforcement sent a childhood photograph of a consenting adult female and а photograph of realistic hut fake female genitalia.
Castaneira,
OCGA § 16-6-4 (a) (1).
OCGA § 16-6-4 (o); see also OCGA § 16-6-2 (a) (1) (“A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”).
OCGA § 16-4-1.
See Brown v. State,
OCGA§ 16-4-5 (a).
OCGA § 16-4-5 (b).
Bentley v. State,
Heard v. State,
Bentley,
Cf. Brockman v. State,
Fetter v. State,
Timberlake v. State,
We note that Muse has never asserted that the State acted in bad faith in presenting an erroneous internet posting, and the State explained at the motion-for-new-trial hearing that the error was attributable to the task force having provided an incorrect posting and that the State discovered the error during the рrosecution of a subsequent case and immediately notified Muse and the court.
Cf. Fetter,
Cf. Brinson v. State,