1 The Court of Appea ls’ reve rsal of c onviction s and remand for r etrial a s a result of the trial court ’s fai lure t o charge on ent rapmen t is n ot im pacted by this C ourt’ s ruli ng. 295 Ga. 76 FINAL C OPY S13G1070. THE STATE v. CO SMO. B ENHAM , Justice. Dennis Cosmo w as convi cted of , am ong other t

hings, a violati on of secti on (d) (1) of th e form er vers ion of the “Comput er o r E lectronic Pornography

and Chil d E xploit ation Pre vention A ct,”OCGA § 16-12-100.2 , prior to the st atute’ s amendment in 2013. That conv iction w as reversed by the Court of Appeals in its d ecision, Cosmo v. State , 320 Ga. App. 397 (7 39 SE2d 828) (2013). We

grante d the pe tition

for writ o f

certiorari filed by the

State to consid er w hether proof of a direct com munication with a c hild is required to prove a viola

tion of the

statute . For the

reasons set fort

h below, we conclud e that direct

comm unicat ion was n ot requir ed for a convictio n pursuant to the crime as charged in thi s cas e, a nd we re verse t he holding of the Co urt of Appeals as it relates to Cosmo’s convi ction for v iolation of this statute. 1 The facts are se t forth in detail in the Cour t of Appe als op ini on and demonstrate that Cosmo comm unicated via

the Internet, a

nd late r via te lephone2

and tele phone text me ssaging, with an undercov er law enforcement a

gent posin g

a s a wo man named “Amber” regarding Amber’ s offer to eng age in a sexual encounter with Cos mo invol ving hersel f and at least one of t hree under-aged childr en that she

claimed wer e her da

ughters. 320 Ga. App. at 398-401. Th e evidence establ ish ed that Cosmo engaged in a dia logue and negotiations with Amber regarding Amber’ s propos al and that he agreed to an en c ounter with Amber and thegirl he was told was fourteen ye ars old. Id. Cosmo set forth in explicit detail the ac ts he was attem pting to solicit

with re spect t o this fic titious child. Id. It is undisputed, however, that Cosmo never comm unicated directly with a pers on he believ ed to bea chil d and tha t he com munic ated onl

y with a person he beli eved to be Amber, the chil d’s parent. The wordingof OCGA § 16- 12-1 00.2 ( d) (1 ) in ef fect at th e time Cosmo was indicted provided:

It shall be unlawful for any person inte ntionally or wi l lfully to utilize a com puter on-l ine ser

vice or Interne t servic e, inc luding but not limited to a local bulletin board servi ce, Inter net chat room, e-mail, on-line messagi ng serv ice , or other electronic device, to seduce, solicit, lure, or entice, or attempt to sedu ce, solicit, lure, or entice a chil d or another pers on believed by such person to b e a child to commit any ille gal ac t descr ibed in C ode Sec tion 16-6-2, relating to the off

ense of sodomy

or aggra vated sodo my ; Code Secti on 16-6-4, re lating t o the offense of c hild mol estation or2 Effect iv e July 1, 201 3, this Code Section was amended, in pertinent part, to insert the phrase “any pe rson having custody

or control of

a child, or another person believed by suchperson to have custody or c ontrol of a child,” after the phrase “or a nother person believed by such person to be a child . . . .” See Ga. L. 2013, p. 663 § 3/HB 156. 3 aggravated child m olesta

tion; Code

Sectio n 16-6-5, re lating t o the offenseof entic ing a child for indec ent purpose s; or Code Sectio n 16-6-8, relating to the offense of public indecency or to engage in any conduct that by its natu re is a n unlawfu l sexua l offense agains t a child

. 2 Cosmo assert ed on appe al that the evi de nce was insufficient to support a convict ion because the evidence failed to show any intera ction between him self and a chil d or person he beli eved to be a c hild. 320 Ga. App. at 402. The Court of Appeal s rever sed his c onviction for this off

ense on t he ground “that the plain

mea ning of the phrase ‘seduce, so licit, lure, or ent ice a chil d or another person believed by such perso n to be a child to co mmit any i llegal act’ c annot be construed to encompass his communica tion with only an adult or person known to be an adult.” Id. The Court of Appeals, howe ver, failed to consider tha t this Code secti on make s it a c rimeto “ attempt to sed uc e, solicit, lure, or entice a child or another p erson believed by such perso n to be a child” to commit an ille gal act e numera

ted in the statute . (Em

phasis sup plied.) The c ou nt of th e indictm ent

accu sing Cosm o of vi olating the Ac t speci fical ly ac cused hi m of4

“attem ptto solicit” a pers on he believ ed to be a child to comm it child molestation and ag gravated child molestation. OCGA § 16-12 -100.2 (d) (1) m akes th e attempt to do certain p rohibited acts one of the ways in wh ich the statute m ay be viola ted. In construi ng the elem ent of atte mpt wi thin thi s statu te, we look to OCGA § 16-4-1, the statute that defines criminal attem pt as a separa

te offe nse: “A p erson co mmi ts the offenseof criminal attempt when, with in ten t to com

mit a specif ic cri me, he perfo rms any a ct whic h constit utes a s ubstanti al ste

p toward the comm

ission of that crim e.” T

hus, att empt w ithin OC GA § 1 6-1 2-100.2 (d) (1) involves two elements: intent to commit a crime (in this ca se, intent to solicit a child f or an unlawful sexual offense ), and

the ta king of a su

bstantia l step to ward the

comm ission of that c rime(i n this c ase, a substa ntial st ep towa

rd solici ting a child for that un lawful offens e). Communication with a p erson the defenda nt believes to be the

parent of a chi ld who is the obje ct of the defenda nt’s att empt to solicit sat isfies the int ent element of the off ense. A simil ar conc lusion has been re ached by federa l courts in

construi ng a federal statute t hat is su bstantia lly sim ilar to O CGA § 16- 12-100.2 (d) (1). Pursuant to 18 U.S.C. § 2422 (b):5

Whoever , using th e m ail or a ny fac ility or

mea ns of inte rstate

or foreign commerce . . . knowingly per suades, induces , entic es, or coerces any individual w

ho has not attained the age of 18 years, to engage in prostit ution or a ny sexua l acti vity for

which any pe rson can be cha

rged wit h a crim inal offe nse, or a ttem pts to do so, sh all be fined under thi s titleand im prisoned no t less t

han 10 ye ars or

for life. In United States v. Murrell , 368 F3d 1283 ( 11 th Cir. 200 4), the Eleventh Circuit Court of Appeals affir med

the conviction of a defendant w ho was charged with attem ptto knowingl

y persuade, induc e, ent

ice, or coerce the

minor to engage in unlawful sexual activity. Murrell had engaged in Internet communica

tions with an underc over offic er posing as the adult parent of a

thirteen year-old

girl and arranged to me et thepurported parent and daughte r for the p urpose of engaging in sexual activity w ith the m inor. Mur rell’s a ctions w ere viewe d as induc eme nt within t he statute, and thecourt foun d that his action s satisf ied theintent elem ent of attempt, e ve n though he d id not com

munic ate directly

with the purported child. According to the court: By negotiating with the purp orted f ather of a minor, Murre ll attempted to stimulate o r cause the minor to eng age in sexual activity with him . Conse quently , Murre ll’s con duct fits squarely within the definitio n of “ind uce.” Moreove r, we note that the efficacy of § 2422 (b) would be eviscerated if a defe ndant could ci rcum vent the statute simply

by employing an intermediary to carry o ut his i ntended objective. In this c ase, Murrell3 See United Sta tes v. Cau dill , 709 F3d 444 (5 th Cir. 2013) (defendant’s communic ation with

a person he thought to be an adult who was supervising minor c hildren was sufficient to show a knowing attempt

to persua de, induc e, or ent

ice the mi nors); United States v. Berk , 652 F3d 132, 140 6 communicated with an adult w ho he bel ieved t o be thefather of a thirteen-year-old

girl and who presumably exercised influence over the girl. Mu

rrell’s agree ment

with the father, wh o was acting as an agent or repre sentative, im

plied proc

uring the daughte r to engage in sexual activity. Because we find that Mur rell a cted w ith the intent t o inducea min or to engage in unla wful sex ual ac tivity, the first element of attempt is satisfied. Id. at 1287. The c ourt found the second e lement of att empt — the ta king of a substanti al ste p toward the intended goal — was satisfie d by evidence of his objective acts, which included making se veral explicit incriminating state ments to the unde rcover o ff

icer, tr aveling two hours to meet a minor girl for sex in excha nge for money, and

carrying, among oth er

things, cash and condoms with him when he arrived at th e meeting site. Id. at 128 8. The court conclu ded that Murrell ’s conduct

was a violati on of the statute beca use dire ct com

munic ation with a minor is unnecess ary pursuant t o the terms of the st atute an d beca us e Murrell ’s conduct satisfie d both ele ments of attempt. Id. At least f ive other federal appell ate c ourts have also he ld that c onviction under 18 U .S.C. § 2422 (b) does not req uire communication d irectly with a chi ld but tha t the communication may be with an adul t intermediary. 3(1 st Ci r. 2011), cert. denied, ___ U. S. ___ (132 SCt 1650, 182 LE2d 245) (2012) ( defendant’s

communicationwith one he thought was the minor’s mother was sufficient to support conviction for attempt to entice a minor to e

ngag e in sexual

activ ity in vio lation of t

he fede ral statu te); United States v. Douglas , 626 F3d 161, 164-165 (2d Cir. 2010) (defendant’s conversation with purported mother of minors constitute d an atte mpt to persuad

e the mino rs throug

h their mot

her to en gage in prohibited

sexual con

duct); United States v. Nestor , 574 F3d 159, 162 (3d Cir. 2009) (because the crimedefined by 18 U.S.C. § 2422 (b) is one of attempt, a defen dant who communicates with an adult intermediary to a

ttempt to persuade, induce, entice, or coerce the child can be h eld to viola

te the statute) ; United States v. Spurlock, 495 F3d 1011, 1014 (8 th Cir. 2007) (defendant’s conversation with purported mother of minors constituted an attempt to persuade the minors through their mother to engage in prohibited sexual conduct). 7 Cosmo urges that attem pting to solicit a min or to engage in ill egal conduct, pursuant

to OCGA § 16-12-100.2 (d) (1), is materia lly distinguishable from attempting to in duce a minor to engag e in illegal co ndu ct pursua nt to 18 U.S.C. § 2422 (b), the criminal activity for which th e defendant in th e Murrell

casewas found

guilty. This is be cause , Cos mo ass ert s, solic itation require s a direct communication with th e minor. We disagree. 1 8 U.S.C . § 2422 (b) relates to conduct wh ereby t he def endant “ knowingly

persuad es, indu ces, entice s, or coerces” a minor to eng age in prohi bited sexual conduct . In United States v. Ne

stor , the Third C ircuit Co urt of Appe als exa mined the te rm “pe rsuade,” another term used i n the federal statu te, and concluded that persuas ion does n ot req uire d irect co mm u nicati on with the

person the

actor seeks to persuade becaus e, for example, “[b]usines ses and individuals regularly seekto persuade other s through a dv e rtising in term ediari es and ne gotiati ng8

agents.” 574 F3d 15 9, 162, n. 4. Likewise, a solic itation of another may

be made by c ommunication with a third pa

rty. Ju st as sol icita

tion of prost

itution

can be ma de through a

third par ty pim p, solic itation

of a chi ld to com

mit the acts prohibi ted by OCGA § 16-12-100.2 (d) (1) may be c onducted through an adult interm ediary

who is believed to bein a posit ion of trust

or authori ty with respect to the chi ld. As t

he Ele venth Circuit C ourt stat ed in Murrell , “th e effica cy of [the statute] would be evisc erated if a defendant could circumvent the statute simply by employi ng an intermediary to carry ou t his intend ed objective.” Murrell, sup ra, 368 F3d at 1287. Certainl y, the intent to solic it a ch ild for illegal sexual activity may be established b y communication with su ch an adult intermediary. The int ent element o f atte mpt to solicit a

child pursuant to OCGA § 16-12- 100.2 (d) is established by the evidence in th is case. The second e lement of cri minal attem ptwith respect to the crime charged

— the taking of a substantial step tow ard the comm ission of solicitin g a chil d

— is also established in this case. Cosmo engaged in sev eral comm unications with the undercover officer whom he believed to be the minor child’s mother to discuss and neg otiate the te rms of a n encount er with

the chi ld. Hetravel ed a substanti al distanc e from

one part of t

he stat e to ano ther to m eet the child a t the9

appointed place and time. When ta ke n into cus tody, he

had in his possessi on $300 cash, condoms, and a r eceipt for the purchase on that day of a male performance enhanc eme nt agent . This evidence would ent

itle a jury to f

ind Cosmo had enga

ged in sub stan tial st eps to e stablis h crim inal at tempt of the crime charg ed . See State v . Grube , 293 Ga . 257, 259- 260 (2) (744 SE 2d 1) (2013); Brown v. State , 321 Ga . App. 79 8, 800 (1) (743 SE2d 474) (2013). In fact, the jury, which was in structed on criminal attem pt, found Cosmo guilty. Accordingly, that port

ion of theCourt

of Appeal s opi nion find ing Co smo may not be convi ctedof that c ount of theindictm ent cha rging him wi th violat

ing OCG A § 16-12 -100.2 (d) ( 1) by at tempt ing to solic it a ch ild, be cause the evidence shows he d

id n ot interact dir ectly with a person h e believed to be a child, i s reverse d. Upon remand of the ca se to the

trial c ourt, Cos mo ma

y be retried on this count of the indictme nt. Judgme nt reve rsed in pa

rt. All the Justi ces c oncur.10 Decid ed April

22, 2014. Certio rari to t

he Court of Appeals of Ge orgia – 320 Ga. A pp. 397. Herber tE. Fran klin , Jr., Distric t Attorney, Ala n C. Nor ton, Assi stant District Attor ney , for appellant. Adam M. Hames , for appellee.