Ferguson v. State

335 Ga.App. 862

783 S.E.2d 380

FERGUSON

v.The STATE.

No. A15A1818.

Court of Appeals of Georgia.

March 1, 2016.

Thomas Sterling Robinson, III, for Appellant.

Robert D. James Jr., for Appellee.

ELLINGTON, Presiding Judge.

A DeKalb County jury found Erik Ferguson guilty beyond a reasonable doubt of trafficking a person for sexual servitude, OCGA § 16–5–46(c), and two counts of attempting to commit that offense, OCGA § 16–4–1; pimping for a person less than 18 years of age, OCGA §§ 16–6–11(5); 16–6–13(b), and two counts of conspiring to commit that offense, OCGA § 16–4–8; enticing a child under the age of 16 years for indecent purposes, OCGA § 16–6–5(a); and nine counts of conspiring to commit sexual exploitation of a child, OCGA §§ 16–4–8; 16–12–100(a)(4)(D), (b)(8). Following the denial of his motion for a new trial, Ferguson appeals, contending that the evidence was insufficient to support his convictions, that the trial court erred in denying his motion to dismiss the indictment and failing to instruct the jury on corroboration of an accomplice, and that his trial attorney was ineffective in failing to request that jury instruction. Finding no reversible error, we affirm.

1. Ferguson contends that the evidence was insufficient to support his convictions.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, [the appellate court] must uphold the jury's verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705, 606 S.E.2d 269 (2004).

(a) Count 1 of the indictment charged Ferguson with committing the offense of trafficking a person for sexual servitude during the period October 15, 2007, to January 31, 2008. Ferguson contends that the evidence established that he was incarcerated during that period. In addition, he contends that the alleged victim, A.G., was his accomplice as to that offense and that her testimony was not corroborated, rendering the evidence insufficient under former OCGA § 24–4–8.¹

A.G. testified that she met Ferguson in January 2007, about a month before she turned 17; she immediately moved in with him. Within a year, she had Ferguson's child. Just after she turned 17, A.G. first became involved in sex work when, at Ferguson's direction, she accompanied another young woman to meet a customer of an escort service. Ferguson operated an escort service called "Addicted Pleasure Models." A.G. worked for Ferguson as a prostitute, having sex for money, danced at adult entertainment clubs and "stripper parties," and gave erotic massages. Ferguson acted as her pimp, and she gave all the money she earned to him. If she failed to turn over the money, he would beat her. To promote the escort services, A.G. regularly passed out business cards and fliers, and multiple times per day she posted ads on Craigslist in the "escort services" section. A.G. helped recruit other girls to work for Ferguson's escort service; he generally had about five at any given time.

A.G. testified that on January 9, 2009, she, Ferguson, and three of Ferguson's other girls were headed downtown to meet customers at a hotel, and they passed out Addicted Pleasure Models business cards around a bus stop on Candler Road. A.G. explained that their purpose in passing out the cards was to solicit customers for prostitution services. Police officers stopped the girls to question them and detained them when they discovered that two girls, who had just started working for Ferguson, were runaways. A.G. was carrying a camera that included numerous images that Ferguson had taken of A.G. and the other girls to use in Craigslist ads. Nine of the images, introduced at trial as State's Exhibits 71 through 79, depict girls other than A.G., displaying their genitals to the viewer.

A.G. was arrested. While she was in jail, in recorded telephone calls with Ferguson, the two discussed the operations of the prostitution business. He told her that one of the other girls had made $50 the previous night, and he "had the money in [his] pocket." He said that the girl was going to walk the streets, passing out flyers to get some more business. He told her he had taken a girl away from another man and that the new girl was inexperienced in demanding a higher price from customers, rather than agreeing to the price first offered. They discussed having enough girls working for them, and Ferguson said that adding some "white hoes" to their operation would "take [them] all the way to the tip-top," and he remarked that those girls tended to be more "loyal to their man." Ferguson asked A.G. for the password for her Craigslist account so he could delete the ads and photographs she had posted, some of which included photographs of underaged girls, and she coached him through that process.

As noted above, Ferguson contends that the alleged victim, A.G., was his accomplice as to the offense charged in Count 1 of the indictment, trafficking a person for sexual servitude, and that her testimony was not corroborated, rendering the evidence insufficient under former OCGA § 24–4–8.² Ferguson does not identify any legal authority for the underlying premise that a person can be an accomplice in his or her own sexual servitude.³ See Lemery v. State, 330 Ga.App. 623, 623–628(1), 768 S.E.2d 800 (2015)(explaining the elements of coercion and deception in the context of sexual servitude); OCGA § 16–3–6(providing that a person is not criminally responsible for sexual crimes where the person was being trafficked for sexual servitude and was either less than 18 years of age or was under coercion or deception).

Pretermitting whether corroboration was required, the evidence authorized the jury to find that A.G.'s testimony was corroborated, by a variety of evidence. For example, Ferguson's telephone conversations with A.G. while she was in jail, regarding the day-to-day operation of the ongoing prostitution enterprise, and the need to remove ads from the Craigslist website that included photographs of underage girls, connected Ferguson to the Addicted Pleasure Models escort service promoted in those postings and therefore to the prostitution enterprise. Lemery v. State, 330 Ga.App. at 626–627(1), 768 S.E.2d 800; Lewis v. State, 278 Ga.App. 160, 161(1), 628 S.E.2d 239 (2006).

In contending that the evidence established an alibi of incarceration, Ferguson points only to his own testimony that he was incarcerated during the period specified in Count 1 of the complaint, October 15, 2007 to January 1, 2008. Even if the jury accepted Ferguson's self-serving testimony that he was in jail during that period, the evidence authorized the jury to find that A.G. prostituted herself for Ferguson's benefit multiple times a day nearly every day from approximately February 2007 through January 2009 (and beyond) and continued to prostitute herself for him regardless whether he was physically present on any given day.⁴

(b) Counts 2 and 3 charged Ferguson with attempting to commit trafficking a person for sexual servitude. The indictment alleged that on January 9, 2009, Ferguson had two girls, sixteen-year-old K.P. and fifteen-year-old K.L., distribute business cards for Addicted Pleasure Models in order to solicit men to buy sexual services from the girls. In Counts 6 and 7, the indictment charged Ferguson with conspiring to commit pimping for the same two girls, on the same date, again by having the girls distribute business cards for Addicted Pleasure Models in order to solicit men to buy sexual services from them.⁵ In Count 8, the indictment charged Ferguson with enticing a child under the age of 16 for indecent purposes, through taking K.L. to 2004 Candler Road on the same date, for the purpose of prostitution.⁶ Ferguson argues that K.P. was the only witness who testified who was in a position to corroborate A.G.'s testimony that Ferguson directed the girls in escort service activities and that K.P.'s testimony did not corroborate A.G.'s. He contends that he cannot be convicted on A.G.'s uncorroborated testimony. He also contends that there was no evidence that K.L. was younger than 16 years old.

K.P. testified that in early January 2009, she met Ferguson and A.G. in a bar; she was sixteen years old and a runaway. She testified that K.L. was also there that night. K.P. and K.L. were friends and had lived on the same street growing up. K.P. and K.L. left the bar with Ferguson and A.G. and stayed at their house. Ferguson talked to K.P. about "what would happen and how [she] would be there and what [she] would do there." He asked if she would be "comfortable doing prostitution," and she said she would. K.P. testified that, on January 9, 2009, a few days after she met Ferguson, she was with him, A.G., K.L., and another girl at a bus stop on Candler Road. K.P. testified that they were on their way to go shopping, and that she and K.L. gave an Addicted Pleasure Models business card to a man in a car. As Ferguson contends, K.P. testified that they did not solicit sex from anyone that day.

Two police officers testified that there was an unusual amount of activity at that bus stop that day and that four girls (including A.G., K.P., and K.L.) were handing out adult entertainment business cards to men. Officers determined that, after initially giving false dates of birth, K.P. and K.L. provided the correct dates; K.P. was 16 years old and K.L. was 15 years old. An officer dialed the telephone number on the business card, and A.G.'s cell phone rang. The...