Alleged Sex Offender Receives Ten Years in Prison

After a jury convicted him, a Winterville, Georgia man who allegedly tried to hook up with a 14-year-old girl will spend the next 120 months in a federal prison.

“Child predators will go to great lengths to victimize a child, as seen in this case and in nearly all of the online exploitation cases we encounter. I hope this case serves as a reminder to parents and responsible adults to be aware of your young person’s online activity and who they are communicating with,” said U.S. Attorney Peter D. Leary. “Law enforcement at every level is collaborating through Georgia’s Internet Crimes Against Children Task Force program to protect children from online exploitation.”

According to court documents, an officer, while posing as a 14-year-old girl, placed an ad on an escort website. The defendant chatted with “her” and agreed to meet her at a local supermarket and pay $60 for sex. Officers arrested the man after he arrived at the supermarket and swept through the building and parking lot.

The case was investigated by the Georgia Internet Crimes Against Children (ICAC) Task Force, the GBI’s Child Exploitation and Computer Crimes Unit (CEACC), the Athens-Clarke County Police Department (ACCPD), the FBI and the Athens-Clarke County District Attorney’s Office.

Procedural Issues in Georgia

According to an old saying, too many chefs spoil the broth. Phil doesn’t ask Steve if he added salt, so Phil adds more salt, thus spoiling the broth. Multiple agencies might closely “cooperate” during an investigation. However, as most of us know, close cooperation doesn’t necessarily include close communication. These communication issues often affect search and seizure issues.

Personal crimes, like child enticement, usually don’t involve search warrants. Possession crimes, like illegal pornography possession, are a different matter. That’s especially true in electronic possession cases. This technology, and therefore the law in this area, is still evolving.

The most recent major Supreme Court case in this area is probably 2014’s Riley vs. California. Officers detained a man for a traffic violation. They scrolled through his phone and found text messages which, in their experience, related to gang activity. Subsequent inquiries lead to the discovery of illegal weapons.

The Supremes ruled that people have a privacy interest in anything past the home screen. Therefore, unless officers have warrants in these cases, a narrow search warrant exception must apply. Some common ones include:

• Consent: This C-word means different things in different contexts. Usually, consent is a current, voluntary agreement to allow a search or engage in other conduct. However, many probation and other court supervision orders contain blanket consent provisions. Officers may search the defendant’s property at any time.
• Plain View: If Officer Tony sees Jimmy looking at illegal pornography, Officer Tony may seize Jimmy’s cell phone. However, under Riley, Officer Tony may need a warrant to go through the rest of Jimmy’s phone and look for additional illegal images.

Speaking of images, even if officers find illegal images on a smartphone or laptop, the defendant may not have legally possessed them. Spam filters catch many emails. Others contain thumbnail images too small to see clearly. Knowledge is a key element of possession in Georgia.

Child Enticement in The Peachtree State

Search warrant law is rather complex. Child enticement, one of the most common sex offenses in Georgia, is usually straightforward, at least on the surface. According to Section 16-6-5, prosecutors must only prove the following elements in court:

• Soliciting, enticing, or taking
• A child under 16 to any place
• To commit “indecent acts” with the child.

This law includes a partial “Romeo and Juliet” exception. If the alleged victim is between 14 and 16, and the defendant is less than four years older, 16-6-5 is a misdemeanor. Otherwise, this offense is a felony that means between ten and thirty years in prison.

The elements of this law are much more subjective than they appear. Courts greatly disagree as to what constitutes “enticing.” Technically, the law requires prosecutors to prove an overt act. If Tim agrees to meet Lisa, his overt act could be as simple as walking out his front door. Such an innocent overt act is hard to connect with child enticement. If Tim shows up at the agreed-upon time at the agreed-upon place, that’s clearly connected to child enticement.

Most law enforcement officers like to move in a little earlier, so they can still arrest Tim if he gets cold feet. The burden of proof is beyond a reasonable doubt. People reasonably walk out of their front doors for many reasons. However, most people don’t reasonably search through grocery stores and grocery store parking lots, unless it’s to find something, or someone, specific.

We suppose that a defendant could argue that he was desperate to find fresh apples. But that argument is a bit far-fetched.

Furthermore, this law doesn’t define “indecent acts.” The late, great Potter Stewart once famously said he couldn’t define obscenity, but he knew it when he saw it. Roughly the same principle applies in child enticement cases.

Possible Defenses

Consent, one of the most effective sex crime defenses, isn’t available in enticement cases. Children of this age cannot legally consent to sexual acts, regardless of what they say, how they dress, or how they act.

Effective defenses, such as a lack of evidence and entrapment, are available to a Marietta criminal defense lawyer.

We mentioned a lack of evidence above. Technically, an attorney must only create a reasonable doubt in the mind of one juror. If that juror is string enough to stick to his/her principles in Twelve Angry Men style, the defendant is not guilty as a matter of law. Prosecutors could retry the defendant, but in most cases, they’d rather cut a favorable deals than go to all that trouble.

Entrapment is an affirmative defense. The defendant must admit his illegal conduct and claim the officer enticed him into it. Entrapment has two basic elements:

• Illegal Enticement: Usually, officers can say or do pretty much anything in these cases. However, they usually cannot commit illegal acts. This issue sometimes comes up when officers smoke marijuana or commit other minor infractions so they can gain the defendant’s trust and arrest him for a major crime.
• No Predisposition: Most entrapment defenses fail on this point. “No predisposition” means just that. The defendant must have absolutely no inclination to commit the charged offense. If Larry is in a sex chat room, he has at least a slight inclination to commit a sex crime. If Larry was on Facebook Messenger, he might still have an entrapment defense.

In the movies, if undercover officers lie about their identity, the defendant walks. However, that’s not the case in the real world. If officers aren’t upfront about their identities, that may affect their credibility as witnesses. But it doesn’t derail a criminal prosecution.

There’s a difference between a criminal charge and a criminal conviction. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.