Young v. State

327 Ga.App. 852

761 S.E.2d 801

YOUNG

v.The STATE.

No. A14A0096.

Court of Appeals of Georgia.

July 7, 2014.

Sanford Allen Wallack, Atlanta, Scott Richard King, Steven Miles Lefkoff, for Appellant.

Christopher Allen Arnt, Herbert E. Franklin, for Appellee.

DOYLE, Presiding Judge.

Michael Lewis Young appeals from the denial of his motion for new trial following his conviction by a jury of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007 ¹ (“Computer Child Exploitation”) (two counts) and attempting to commit the felonies ² of aggravated child molestation ³ and child molestation ⁴ (two counts each). Young contends that (1) the trial court erred by excluding his expert's testimony on his lack of predisposition to commit the offenses, (2) he was denied his Constitutional right to be present during certain bench conferences, (3) the evidence was insufficient to support the guilty verdict, (4) the trial court gave erroneous jury instructions, (5) he received ineffective assistance of counsel, and (6) his sentence was unlawful. For the reasons that follow, we affirm.

Construed in favor of the verdict,⁵ the evidence shows that Young visited the Craigslist website and looked in the “Casual Encounters” section for sexual companionship. He encountered a listing from “daddychris. 520@ gmail. com” seeking a “discreet” male who “would like to teach the finer aspects of life to a young female friend of mine.” The listing was placed by a police detective working with an FBI task force investigating crimes against children. Young responded expressing interest and describing his body and penis size and attaching a photo of himself nude. The detective replied and the following email exchange occurred:

Detective: Thank-you for your reply. I just need to know what level of open mindedness and discretion you have. I have two step-daughters, who are not quite the legal age. Both are very beautiful and very much up for this. They are both very mature, open minded, and discreet. If you are interested in this out of the ordinary experience please respond ... discretion is a must.

Young: I would be interested and will be very discrete [sic] as well [a]s I will need to make sure no on finds out as well. But would be very interested [.] Let me know how we meet[.]

Detective: My step-daughters are both equally beautiful ... Kara is 12 and Nikki is 14 ... both are very into this ... if this is something you would be interested in tell me in detail what you would do with them ... cops [cannot] say that ... and you must send the picture ... discretion is a must.

Young: Gotcha, As young ladies they would need to know how to [perform oral sex] ... I will teach ... We can slowly teach them what it is like to receive oral pleaseure [sic] from me as well and finally with full intercourse and my (smaller than average) [penis] inside their vagina they will learn how to relax and have a great orgasm as part of this pleasurable experience....

Detective: Ok I believe we are thinking on the same level, I believe this could be a good relationship. I am glad to see that you have a smaller penis, that would be better for Kara the 12–year–old.

Young: Would you like to do this [T]hursday evening? I have a nice two bedroom apartment we can all hang out ... for a while and work our way to the fun? I am in Dunwoody....

The detective and Young then proceeded to negotiate a meeting time and place. Young also asked for pictures of the girls, and the detective replied that he did not want to send pictures because “they could one day be traced back to me,” feigning a fear of being caught. Young replied that he understood that concern is “legit,” and that the girls “sound very cute and just tell me if there is anything I missed out on that you want me to teach them when we are together[.]” Young later asked if the girls were developing breasts yet, and the detective and Young continued trading emails to arrange a mutually agreeable meeting at a hotel, whereupon Young was arrested. The entire email exchange took place in several emails over the course of four days. At the time of his arrest, Young's license plate had been removed, he had a note with the detective's email address and phone number and, as discussed in emails, Young's vehicle contained a pack of condoms and some wine coolers.

Young was charged with six counts based on his conduct and, following a trial, a jury found him guilty on all counts. Young moved for a new trial, which was denied, giving rise to this appeal.

1. Young contends that the trial court erred by refusing to admit testimony from his expert witness that would support his sole defense of entrapment. Specifically, he argues that his expert, Dr. Dave Davis, would have testified that Young was not predisposed to have sexual contact with underage children, which is one of the prima facie elements of entrapment he must show.⁶ This Court recently addressed this question regarding the same expert under similar facts in Lopez v. State.⁷ We find that analysis applicable here:

Under Georgia law, where (a) the path from evidence to conclusion is not shroudedin the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. In general, expert testimony that a defendant does not have the psychological characteristics of a person who is predisposed to having sexual contact with underaged children invades the province of the jury as to the ultimate issue, that is, the defendant's guilt or innocence, and is properly excluded. We conclude that the trial court did not abuse its discretion in ruling that whether [Young] would have committed the crime[s] charged absent the inducement of law enforcement officers was a question the jury could and must resolve without the assistance of expert opinion evidence and that Dr. Davis's opinions on the subject were therefore inadmissible.⁸

2. Young also argues that the trial court should have granted his motion for new trial because he was denied his Constitutional right to be present at a critical stage of his trial when bench conferences occurred during voir dire. But the voir dire process was not transcribed and Young makes no argument that he objected during trial. At the hearing on Young's motion for new trial, Young's trial counsel explained that the trial court instructed jurors to stand and answer questions during voir dire, and if they had something they wanted to speak about more privately, they could approach the bench. Young's counsel stated that he was present for all of the conferences and each conference would happen while Young was seated at counsel's table, six or eight feet away. Young's counsel would tell Young what was happening, and both Young and his counsel were present in the courtroom during the entire process, yet neither objected. Under these circumstances, “ because all of the bench conferences in question took place while [Young] was in the courtroom, and [he] voiced no objection to them, [he] has waived appellate review of the alleged improper conferences.” ⁹

3. Young next contends that the evidence was insufficient to support the guilty verdict because he never had contact with a child or anyone posing as a child. He relies on Cosmo v. State, which held that the plain meaning of OCGA § 16–12–100.2¹⁰ “cannot be construed to encompass [a defendant's] communication with only an adult or a person known to be an adult,” ¹¹ so no violation of that Code section occurred absent some communication with a minor. But, after the briefing in this case, Cosmo was reversed by the Supreme Court of Georgia, which concluded “that direct communication [with a minor] was not required for a conviction pursuant to the crime as charged in this case,” because Cosmo was accused of attempting to solicit or entice a person he believed to be a child.¹² The Court explained that

a solicitation [or enticement] of another may be made by communication with a third party. Just as solicitation of prostitution can be made through a third party pimp, solicitation of a child to commit the acts prohibited by OCGA § 16–12–100.2(d)(1) may be conducted through an adult intermediary who is believed to be in a position of trust or authority with respect to the child. As the Eleventh Circuit Court stated in [United States v.] Murrell,¹³ “the efficacy of the statute would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective.” ¹⁴

Here, this analysis applies because Young's indictment accused him of essentially the same conduct in violation of the same statute. Accordingly, this enumeration is without merit.

4. Young argues that the trial court gave erroneous jury instructions.

(a) Failure to give instruction as to mere preparation. Young argued that his conduct amounted to only mere preparation, and he requested such an instruction, which the trial court declined to give. “In determining whether the trial court's charge to the jury contains error, we read and consider the instructions as a whole. Moreover, a trial court does not err by failing to give a jury charge where the requested charge is not adjusted to the evidence presented at trial.” ¹⁵

Young's indictment alleged that he “did intentionally utilize a computer Internet service to attempt to seduce and entice [the victim], a person believed by the accused to be a child, to commit child molestation and aggravated child molestation....” The evidence showed that Young responded to a listing on Craigslist and sent a series of emails to arrange a meeting with the purported underage victims to engage in oral sex and intercourse with them. Such a use of a computer constituted the actual crimes, if the requisite intent was found. It was undisputed that Young used the computer to communicate with...