Stinson v. State

898 S.E.2d 612

STINSON

v.The STATE.

A23A1320

Court of Appeals of Georgia.

February 20, 2024

Kelsey Geary Wiley Wiley, for Appellant.

Penny Alane Penn, Courtney Lois Mills Moore, for Appellee.

Land, Judge.

After a jury trial, Mackenzi Stinson¹ was found guilty of criminal attempt to commit child molestation (OCGA §§ 16-4-1 and 16-6-4). Stinson appeals, arguing that the trial court erred in denying her general demurrer and in denying her motion to suppress her in-custody statements. We find no error and affirm.

[1, 2] "On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State, 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only 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." (Emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that in September 2019, the Forsyth County sheriff’s office conducted a multi-agency undercover operation to identify and arrest online sexual predators targeting minor children. As part of the operation, police officers posed as minors online, setting up profiles on social media pages and other internet platforms.

On September 6, 2019, a Floyd County police sergeant posing as a fourteen-year-old named "Brittney Smith" was contacted by a user named "Mackenzi" on an internet platform used by individuals to meet and engage in sexual encounters. "Mackenzi" was later identified to be Stinson. Stinson told "Brittney" that she was looking for someone to "come stay with them for the weekend," meaning her and her boyfriend, Jonathan Butler. "Brittney" told Stinson that she was 14 years old, but Stinson continued to message her and asked how she would get away for the weekend.

Stinson provided "Brittney" with a cell phone number, and the online conversation then moved to text messaging. During the text messages, Stinson stated repeatedly that "Brittney" was beautiful and asked "Brittney" if she was a virgin, if she had kissed a girl before, and if she wanted to be "just ours."

Stinson made plans for her and Butler to drive from Tennessee to pick "Brittney" up at a gas station in Forsyth County, and return to Tennessee. On September 7, 2019, Stinson and Butler arrived at the gas station in Forsyth County. The two were immediately arrested and taken to a sheriff’s office precinct for questioning. At the time of the interview, Stinson was 19 years old and had completed one year of college. After signing a Miranda² waiver, Stinson admitted that she had texted "Brittney" and that she knew "Brittney" was 14 years old. Although Stinson initially denied that she had sexual intentions toward "Brittney," she ultimately admitted to having sexual fantasies about being with a girl again. Stinson admitted that she had asked "Brittney" questions about her sexual experiences and that her interest in "Brittney" was sexual.

Stinson was indicted for computer pornography (count 1), criminal attempt to commit child molestation (count 2), and criminal attempt to commit interstate interference with child custody (count 3). She filed a motion to suppress her in-custody statements, and at a hearing, a video of Stinson’s interview was played for the trial court. Although the record before us does not contain this video, a transcript of the video was made as it was being played in court. The following exchange took place as the interview began:

Interviewer: Before we start asking you some questions, though, because you’re in custody, I got to read you a couple things, all right?

…

Interviewer: Okay …. [L]et me advise you of these things … You have the right to remain silent. Anything that you can say can be used against you in court [of] law. You have the right to talk to a lawyer to be present while being questioned. If you cannot afford to hire a lawyer one will be appointed to you for questioning if you wish. You can decide at any time to exercise these rights and not answer questions or make any statements. You understand that?

Okay. So just getting the first couple things out of the way. Your name is Mackenzi, but I’m not exactly sure how to spell it. How do you spell it?

Stinson: M-A-C-K-E-N-Z-I.

The interviewing officer testified that she read a waiver of rights form to Stinson, who signed the form after having the opportunity to read it herself. The officer testified that neither she nor the detective offered Stinson any hope of benefit or threatened her in any way, and that Stinson appeared to understand the questions being asked of her. When Stinson initially denied having any intent to have sexual contact with "Brittany," the detective interrupted her:

Interviewer: Okay. Wait, wait. Don’t—don’t do this to yourself. Trust me. The last thing that you want to do is come into this room and look me in the face and lie to me because I already know what’s going on, okay? So even though I ask you questions, I already know what the response should [be] because I know what the truth is …. So I want you to look deep in you and you need to be able to tell me the truth, okay? Because if you’re going to lie to me, this whole thing is going to change and not for the good, okay? Okay. It’s going to be much worse, all right? … If you do the right thing and you tell us the truth. That’s going to go way further than giving us … lies.

Stinson: So if I tell you the truth, me and my daughter and my fiancé can (inaudible)?

Interviewer: Absolutely not. Absolutely not. That is a foregone conclusion at this point, both you and he are going to jail (inaudible).

Later in the interview, as the officer was leaving the interview room, she told Stinson that "[t]he FBI is interested in you …. And let me tell you, it’s going to be much, much easier for you to talk to me [and the detective.]" Stinson then asked "is there any way we can be home tomorrow if I’m honest?" The detective then told Stinson

If you’re upfront and honest, like [the detective] just said, and (inaudible) go a lot better because obviously [the judge and everybody], they’re going to see that you’re an honest person ….

The trial court orally denied Stinson’s motion to suppress her in-custody statements and later issued a written order, finding that Stinson’s statements had been voluntarily made without the slightest hope of benefit or remotest fear of injury.

After the jury was sworn, defense counsel for both defendants jointly raised a general demurrer to the indictment. The trial court dismissed Counts 1 and 3 for failing to state venue, but rejected Stinson’s argument that Count 2 was defective for failing to allege a substantial step taken towards the commission of the crime of child molestation. The jury found Stinson guilty of Count 2, and she was sentenced to ten years with three to serve, with the remainder to be served on probation. Stinson’s amended motion for new trial was denied, and this appeal followed.

[3–5] 1. Stinson argues that the trial court erred in denying her general demurrer as to the indictment’s criminal attempt to commit child molestation charge because the indictment failed to allege the "substantial step" element of the offense.³ We disagree.

[6–11] "A general demurrer challenges the sufficiency of the substance of the indictment." (Citation and punctuation omitted.) Stapleton v. State, 362 Ga. App. 740, 741 (1), 869 S.E.2d 83 (2021). "To withstand a general demurrer, an indictment must: (1) recite the language of the statute that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish a violation of a criminal statute." (Citation and punctuation omitted.) Id. "If the indictment states the offense in the terms and language of the relevant Code section or so plainly that the nature of the offense charged may easily be understood by the jury, it shall be deemed sufficiently technical and correct." (Punctuation and footnote omitted.) Dennard v. State, 243 Ga. App. 868, 870, 534 S.E.2d 182 (2000).

The issue is not whether the indictment could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow a defendant to prepare his defense intelligently and to protect him from double jeopardy.

(Punctuation and footnote omitted.) Coleman v. State, 318 Ga. App. 478, 480 (1), 735 S.E.2d 788 (2012), overruled on other grounds by State v. Heath, 308 Ga. 836, 840, 843 S.E.2d 801 (2020). We review a trial court’s ruling on a general demurrer de novo. Stapleton, 362 Ga. App. at 741, 869 S.E.2d 83.

[12, 13] "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. "The offense of criminal attempt consists of three elements: first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime; and third, a failure to consummate its commission." (Citation and punctuation omitted.) Stapleton, 362 Ga. App. at 744 (1) (b), 869 S.E.2d 83. See OCGA § 16-4-1 ("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"). "[T]o properly charge attempt, the State must merely allege that, with an intent to commit the...