BENHAM, Justice.
Dennis Cosmo was convicted of, among other things, a violation of section (d)(1) of the former version of the "Computer or Electronic Pornographic and Child Exploitation Prevention Act," OCGA § 16-12-100.2, prior to the statute's amendment in 2013. That conviction was reversed by the Court of Appeals in its decision, Cosmo v. State, 320 Ga.App. 397, 739 S.E.2d 828 (2013). We granted the petition for writ of certiorari filed by the State to consider whether proof of a direct communication with a child is required to prove a violation of the statute. For the reasons set forth below, we conclude that direct communication was not required for a conviction pursuant to the crime as charged in this case, and we reverse the holding of the Court of Appeals as it relates
The facts are set forth in detail in the Court of Appeals opinion and demonstrate that Cosmo communicated via the Internet, and later via telephone and telephone text messaging, with an undercover law enforcement agent posing as a woman named "Amber" regarding Amber's offer to engage in a sexual encounter with Cosmo involving herself and at least one of three under-aged children that she claimed were her daughters. 320 Ga.App. at 398-401, 739 S.E.2d 828. The evidence established that Cosmo engaged in a dialogue and negotiations with Amber regarding Amber's proposal and that he agreed to an encounter with Amber and the girl he was told was fourteen years old. Id. Cosmo set forth in explicit detail the acts he was attempting to solicit with respect to this fictitious child. Id. It is undisputed, however, that Cosmo never communicated directly with a person he believed to be a child and that he communicated only with a person he believed to be Amber, the child's parent.
The wording of OCGA § 16-12-100.2(d)(1) in effect at the time Cosmo was indicted provided:
Cosmo asserted on appeal that the evidence was insufficient to support a conviction because the evidence failed to show any interaction between himself and a child or person he believed to be a child. 320 Ga.App. supra at 402, 739 S.E.2d 828. The Court of Appeals reversed his conviction for this offense on the ground "that the plain meaning of the phrase `seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act' cannot be construed to encompass his communication with only an adult or person known to be an adult." Id. The Court of Appeals, however, failed to consider that this code section makes it a crime to "attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child" to commit an illegal act enumerated in the statute. (Emphasis supplied.) The count of the indictment accusing Cosmo of violating the Act specifically accused him of "attempt to solicit" a person he believed to be a child to commit child molestation and aggravated child molestation.
OCGA § 16-12-100.2(d)(1) makes the attempt to do certain prohibited acts one of the ways in which the statute may be violated. In construing the element of attempt within this statute, we look to OCGA § 16-4-1, the statute that defines criminal attempt as a separate offense: "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." Thus, attempt within OCGA § 16-12-100.2(d)(1) involves two elements: intent to commit a crime (in this case, intent to solicit a child for an unlawful sexual offense), and the taking of a substantial step toward the commission of that crime (in this case, a substantial step
A similar conclusion has been reached by federal courts in construing a federal statute that is substantially similar to OCGA § 16-12-100.2(d)(1). Pursuant to 18 U.S.C. § 2422(b):
In United States v. Murrell, 368 F.3d 1283 (11th Cir.2004), the Eleventh Circuit Court of Appeals affirmed the conviction of a defendant who was charged with attempt to knowingly persuade, induce, entice, or coerce the minor to engage in unlawful sexual activity. Murrell had engaged in Internet communications with an undercover officer posing as the adult parent of a thirteen year-old girl and arranged to meet the purported parent and daughter for the purpose of engaging in sexual activity with the minor. Murrell's actions were viewed as inducement within the statute and the court found that his actions satisfied the intent element of attempt, even though he did not communicate directly with the purported child. According to the court:
Id. at 1287. The court found the second element of attempt — the taking of a substantial step toward the intended goal — was satisfied by evidence of his objective acts, which included making several explicit incriminating statements to the undercover officer, traveling two hours to meet a minor girl for sex in exchange for money, and carrying, among other things, cash and condoms with him when he arrived at the meeting site. Id. at 1288. The court concluded that Murrell's conduct was a violation of the statute because direct communication with a minor is unnecessary pursuant to the terms of the statute and because Murrell's conduct satisfied both elements of attempt. Id. At least five other federal appellate courts have also held that conviction under 18 U.S.C. § 2422(b) does not require communication directly with a child but that the communication may be with an adult intermediary.
The second element of criminal attempt with respect to the crime charged — the taking of a substantial step toward the commission of soliciting a child — is also established in this case. Cosmo engaged in several communications with the undercover officer whom he believed to be the minor child's mother to discuss and negotiate the terms of an encounter with the child. He traveled a substantial distance from one part of the state to another to meet the child at the appointed place and time. When taken into custody, he had in his possession $300 cash, condoms, and a receipt for the purchase on that day of a male performance enhancement agent. This evidence would entitle a jury to find Cosmo had engaged in substantial steps to establish criminal attempt of the crime charged. See State v. Grube, 293 Ga. 257, 259-260(2), 744 S.E.2d 1 (2013); Brown v. State, 321 Ga.App. 798, 800(1), 743 S.E.2d 474 (2013). In fact, the jury, which was instructed on criminal attempt, found Cosmo guilty.
Accordingly, that portion of the Court of Appeals opinion finding Cosmo may not be convicted of that count of the indictment charging him with violating OCGA § 16-12-100.2(d)(1) by attempting to solicit a child, because the evidence shows he did not interact directly with a person he believed to be a child, is reversed. Upon remand of the case to the trial court, Cosmo may be retried on this count of the indictment.
Judgment reversed in part.
All the Justices concur.