                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                          RICKMAN and MARKLE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     March 6, 2019




In the Court of Appeals of Georgia
 A18A2138. REID v. THE STATE.

      RICKMAN, Judge.

      Following a bench trial, Richard Allen Reid was convicted on one count of

criminal attempt to commit child molestation and two counts of computer

pornography. On appeal, Reid contends that the evidence was insufficient to support

his conviction for criminal attempt to commit child molestation and that the evidence

established the affirmative defense of entrapment. For the following reasons, we

affirm.

      On appeal from a criminal conviction, we view the evidence in the light
      most favorable to support the jury’s verdict, and the defendant no longer
      enjoys a presumption of innocence. We do not weigh the evidence or
      judge the credibility of the witnesses, but determine only whether the
      evidence authorized the jury to find the defendant guilty of the crimes
      beyond a reasonable doubt in accordance with the standard set forth in
      Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).


(Citation and punctuation omitted.) Hall v. State, 335 Ga. App. 895 (783 SE2d 400)

(2016).

      So viewed, the evidence showed that in the summer of 2015, an investigator

with the Effingham County Sheriff’s Office placed an ad on Craig’s List stating that

he was a female and was “home alone bored.” Reid responded to the ad, “I am very

much interested in hanging out. I’m a lot of fun to be around but will let you be the

judge of that if you’re interested. Hit me up and let’s see what kind of fun we can get

into.” When the investigator replied that she was 15-years-old, Reid stated, “[o]h

wow, but you’re only 15 though.”

      The investigator sent a photograph purporting to be a photograph of the 15-

year-old girl, but it was actually a photograph of a female deputy at the sheriff’s

office, and Reid sent a photograph of himself. After communicating through Craig’s

List, Reid and the investigator, posing as the 15-year-old girl, began exchanging text

messages. The investigator testified that Reid “constantly ask[ed] for nude photos of

the child” and stated that he was a “horny old man.” Reid sent text messages to the

investigator stating that the child was a “very attractive young lady” and that he was

                                          2
“really a lot older than [her],” Reid asked the investigator what kind of “fun” she

liked and he replied, “I lik all kinds and mayb even new stuff.” Reid responded,

“[d]on’t tease me girl[.]” Reid expressed concern to the investigator about being

discovered by law enforcement and told him to “get rid of” all of their conversations

so that a parent did not discover them.

      Reid and the investigator arranged to meet at a gas station. Prior to their

meeting, Reid requested more revealing photos that showed more skin so that he

would have something to look forward to. The investigator testified that Reid stated,

“[w]e can still play and get all worked up and be ready to have fun when I do make

it up there” and that he wanted to “see [her] naked before I see you Friday, that’d also

prove that you’re serious.” Reid confirmed that the investigator would be alone when

he met with the child after work and stated that he was “pretty excited” about meeting

with her. After they met, Reid planned to go back to the child’s house.

      Once Reid indicated that he was close to the arranged meeting location, the

investigator began surveillance. The investigator observed a male in a Jeep pull into

a parking space toward the end of the parking lot. The male sat in his vehicle for

several minutes without exiting before backing up and attempting to leave the

location. Thereafter, the investigator conducted a traffic stop and identified the male

                                           3
as Reid. The investigator testified that Reid initially stated that “he was just simply

riding around” but then admitted “that he was coming to meet a female that he knew

was underage.”

      Reid was indicted for one count of criminal attempt to commit child

molestation and two counts of computer pornography. Reid entered a guilty plea to

all counts of the indictment but subsequently successfully moved to withdrawal the

guilty plea. Following a bench trial, Reid was convicted on all counts. Reid filed a

timely motion for new trial, which was denied by the trial court. This appeal follows.

      1. Reid contends that the evidence was insufficient to support his conviction

for criminal attempt to commit child molestation. Specifically, Reid argues that he

never took a substantial step towards committing child molestation or, alternatively,

that he abandoned any attempt to commit to child molestation. 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. To establish that Reid attempted 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

                                          4
of either the child or the person.” OCGA § 16-6-4 (a) (1). “[W]hether a particular act

is “immoral or indecent” is a [question for the factfinder] that may be determined in

conjunction with the intent that drives the act.” Slack v. State, 265 Ga. App. 306, 307

(1) (593 SE2d 664) (2004).

      The communications between Reid and the alleged child need not describe the

particular sexual acts that he intended to engage in with the child to establish intent

because “intent, which is a mental attitude, can be inferred.” (Citation and

punctuation omitted.) Schlesselman v. State, 332 Ga. App. 453, 455 (1) (773 SE2d

413) (2015). “And whether a defendant possessed the necessary intent is a question

of fact for the [factfinder] after considering all the circumstances surrounding the acts

of which the accused is charged.” (Citation and punctuation omitted.) Id.

      Here, Reid communicated with someone he believed to be a 15-year-old girl.

Reid asked the alleged child repeatedly for nude photographs, told her that he was a

horny and dirty old man, and asked her not to “tease” him when she told him that she

would like to try new things. Prior to Reid’s arranged meeting with the alleged child,

he told her they could “play and get all worked up and be ready to have fun” before

meeting, that he wanted to see her naked to prove that she was serious, and that he

was “pretty excited” about meeting her. This was enough evidence for the trial court

                                           5
to determine that, with the intent toward doing an immoral or indecent act with a 15-

year-old girl, Reid took a substantial step toward committing child molestation by

arranging to meet the child, and traveling to the meeting place. See Schlesselman, 332

Ga. App. at 455 (1) (affirming defendant’s conviction for attempted child molestation

where the defendant arranged to pay for a night of “companionship” with a 14-year-

old girl and drove to the meeting location); Lopez v. State, 326 Ga. App. 770, 774 (1)

(b) (757 SE2d 436) (2014) (“We have held that a conviction of attempted child

molestation is authorized where the evidence shows that the defendant communicated

with an adult whom the defendant believed to be a child under sixteen years old and

took substantial steps to meet with that person to engage in sexual activity that would

constitute child molestation.”).

      Alternatively, Reid argues that he abandoned any criminal purpose when he left

the arranged meeting place without exiting his vehicle. “When a person’s conduct

would otherwise constitute an attempt to commit a crime under Code Section 16-4-1,

it is an affirmative defense that he abandoned his effort to commit the crime or in any

other manner prevented its commission under circumstances manifesting a voluntary

and complete renunciation of his criminal purpose.” OCGA § 16-4-5 (a). “[W]hen a

defendant raises and testifies in support of an affirmative defense, the State has the

                                          6
burden of disproving that defense beyond a reasonable doubt.” (Citation, punctuation,

and footnote omitted.) Muse v. State, 323 Ga. App. 779, 782 (1) (748 SE2d 136)

(2013).

      Here, Reid did not testify and he argued that he never had any “intent to do the

things that were specifically listed in the State’s indictment, and that was criminal

attempt to commit child molestation.” However, he still alleges that evidence

presented at trial showed he abandoned any criminal purpose. The evidence

established that, prior to the arranged meeting, Reid expressed concern that he would

be discovered by law enforcement or the child’s parents, and that Reid was under law

enforcement surveillance the entire time he was at the gas station. After Reid was

apprehended, he never explained to the investigator why he left the gas station or

expressed a change of heart. “It was for the [factfinder] to determine whether the

State met any burden to disprove an affirmative defense of abandonment—a

determination which the [factfinder] made in the State’s favor.” (Footnote omitted.)

Muse, 323 Ga. App. at 783 (1). Accordingly, we find that the trial court’s

determination that the State met any burden to disprove the affirmative defense of

abandonment was supported by the evidence. See id.; Bentley v. State, 261 Ga. 229,

230 (2) (404 SE2d 101) (1991).

                                          7
      2. Reid contends that the evidence established the affirmative defense of

entrapment, and that he was entrapped to commit computer pornography.

      “Entrapment is an affirmative defense that is established by showing that (1)

the idea for the crime originated with the State agent; (2) the defendant was induced

by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant was not

predisposed to commit the crime.” Logan v. State, 309 Ga. App. 95, 97 (1) (a) (709

SE2d 302) (2011).

      As a general rule, in order to raise the defense of entrapment, the
      defendant must first admit the commission of the 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.


(Citation and punctuation omitted). Id. “If the defendant establishes a prima facie case

of entrapment, the burden is then upon the State to disprove entrapment beyond a

reasonable doubt. The determination of whether the defendant was entrapped is for


                                           8
the [factfinder] unless the uncontroverted evidence demands a finding of

entrapment.” Id. at 97-98 (1) (a).

      As noted in Division 1, Reid did not testify or present any other evidence

admitting that he committed the charged crimes. The evidence showed that after the

alleged child revealed that she was 15 years old, Reid continued to communicate with

her and never reported her to Craig’s List,1 he repeatedly asked her for naked pictures,

and he expressed excitement after arranging to meet her in person. Additionally, Reid

was concerned that he would be discovered by law enforcement or the alleged child’s

parents. Accordingly, the evidence supports the trial court’s conclusion that

entrapment did not occur. See Logan, 309 Ga. App. at 98 (1) (a) (finding that the

evidence supported jury’s conclusion that there was no entrapment where the

defendant did not testify, continued communicating with the child on Craig’s List,

and initiated the sexual conversation).

      Judgment affirmed. Markle, J., concurs, and McFadden, P. J., concurs in part

to Division 2 and dissents in part to Division 1.*




      1
        “The website requires users to verify that they are 18 years old in order to post
advertisements in the section in question.” Logan, 309 Ga. App. at 98 (1) (a), n. 9.

                                           9
*DIVISION 1 OF THIS OPINION IS PHYSICAL PRECEDENT ONLY.

COURT OF APPEALS RULE 33.2(a).”




                             10
In the Court of Appeals of Georgia
 A18A2138. REID v. THE STATE.

      MCFADDEN, Presiding Judge, concurring in part and dissenting in part.

      I concur with the decision of the majority to affirm Reid’s conviction on the

computer pornography counts (Division 2), but I respectfully dissent to the decision

to affirm his conviction for criminal attempt to commit child molestation (Division

1) because the state did not meet its burden of disproving Reid’s affirmative defense

of abandonment.

      As the majority explains, abandonment is an affirmative defense to the offense

of criminal attempt. OCGA § 16-4-5. By its terms, OCGA § 16-4-5 (a) makes this
affirmative defense available to persons whose “conduct would otherwise constitute

an attempt to commit a crime[.]” The question before us is whether Reid “abandoned

his effort to commit the crime [of child molestation] under circumstances manifesting

a voluntary and complete renunciation of his criminal purpose.” Id.

      This is a classic case of abandonment. Reid drove to the scene of a planned

crime, hesitated, then drove away. That’s really all we know. The undisputed

evidence at the bench trial showed that, shortly before the arranged meeting time,

Reid stopped responding to the investigator’s messages and that he left the arranged

meeting place after a few minutes. Citing this evidence, Reid’s counsel argued to the

trial court that he had abandoned any effort to commit the crime.

      So the state had the burden of disproving Reid’s affirmative defense beyond

a reasonable doubt. See Bishop v. State, 271 Ga. 291 (2) (519 SE2d 206) (1999)

(“When a defendant raises an affirmative defense and offers evidence in support

thereof, the [s]tate has the burden of disproving that defense beyond a reasonable

doubt.”). Accord Bunn v. State, 284 Ga 410, 413 (3) (667 SE2d 605) (2008).

      The state could have met that burden by proving that Reid’s departure

“result[ed] from, (1) [a] belief that circumstances exist[ed] which increase[d] the

probability of detection or apprehension . . . or which render[ed] more difficult the

                                         2
accomplishment of the criminal purpose; or (2) [a] decision to postpone the criminal

conduct until another time.” OCGA § 16-4-5 (b).

      But the state offered no evidence to show Reid’s frame of mind when he

decided to leave without meeting the girl with whom he thought he had been

communicating — other than the departure itself. Unlike in Muse v. State, 323 Ga.

App. 779, 782 (1) (748 SE2d 136) (2013), there is no evidence that Reid realized that

he was under law enforcement surveillance when he left. The fact that Reid did not

explain his reason for leaving, either to the investigator at the time or to the court at

trial, cannot be said to supply that deficiency — Reid was under no obligation to

explain.

      The state did present circumstantial evidence that on earlier occasions Reid had

seemed concerned with being caught. But that is not enough. Abandonment inspired

by the general deterrent effect of the criminal law is still abandonment. The state’s

burden was to disprove a “voluntary and complete renunciation of his criminal

purpose,” which it could have done by proving that Reid departed because he

perceived circumstances increasing his risk of being caught on this particular

occasion or because he decided merely to postpone the crime. OCGA § 16-4-5.

Evidence of Reid’s generalized fear of being caught cannot carry that burden. See

                                           3
generally Comment 8 to Model Penal Code § 5.01, Part I Commentaries, vol. 2, at

356-357 (“A ‘voluntary’ abandonment occurs when there is a change in the actor’s

purpose that is not influenced by outside circumstances. . . . A reappraisal by the actor

of the criminal sanctions applicable to his contemplated conduct would presumably

be a motivation of the voluntary type as long as the actor’s fear of the law is not

related to a particular threat of apprehension or detection.”).

      The evidence before us does not tell us why Reid stopped trying to commit the

crime and so does not provide a basis “from which [the trial court] could exclude the

very reasonable alternative hypothesis that [Reid had voluntarily and completely

renounced any criminal purpose when he left the meeting place].” Prater v. State, 279

Ga. App. 527, 531 (3) (b) (631 SE2d 746) (2006) (citation omitted). See OCGA § 24-

16-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not

only be consistent with the hypothesis of guilt, but shall exclude every other

reasonable hypothesis save that of the guilt of the accused.”). Because the state did

not meet its burden of disproving Reid’s affirmative defense, we should reverse his

criminal attempt conviction.




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