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Rosier v. State

Alabama Court of Criminal Appeals

October 3, 2014

Kenneth Rosier
v.
State of Alabama

          Appeal from Mobile Circuit Court. (CC-13-4146).

         For Appellant: Deborah D. McGowin, Mobile.

         For Appellee: Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen.

         WELCH, Judge. Windom, P.J., and Kellum, Burke, and Joiner, JJ., concur.

          OPINION

         WELCH, Judge.

         Kenneth Rosier was charged with two counts of violating § 13A-6-122, Ala. Code 1975, addressing electronic solicitation of a child and attempted electronic solicitation of a child, and one count of traveling to meet a child for an unlawful sex act, § 13A-6-124, Ala. Code 1975. Pursuant to a plea agreement, Rosier pleaded guilty to one count of violating § 13A-6-122, and the State nol-prossed the remaining charges. The Mobile Circuit Court sentenced Rosier, pursuant to the plea agreement, to 10 years in prison, split to serve 18 months in prison followed by 5 years of supervised probation. He was further ordered to pay court costs, a $50 assessment to the Crime Victims' Compensation Fund, and a bail-bond processing fee.

         Facts

         The Saraland Police Department set up a sting operation by placing an advertisement on the Internet Web site, " Craigslist." The advertisement contained embedded initials indicating that the advertisement was intended to lead to the Internet pornography site, " Family Fun," which was described at trial as " a euphemism for a parent who has underage children available for sex." (R. 5.) Approximately two hours after the advertisement was posted, Rosier responded via the Internet. An undercover officer posed as Cindy Carmichael (" Cindy" ), a mother of two girls who were 13 and 11 years old and a son who was 8 years old. Conversations via computer continued between Rosier and Cindy during the following days. Cindy assured Rosier that her daughters were " fine" with engaging in sexual activity arranged by their mother, and she said: " They are active participants. They are obedient and disciplined." (C. 54.) Rosier expressed a desire to have sexual contact with the two girls while Cindy watched. Rosier arrived at the address Cindy had given him, and he was arrested by detectives of the Saraland Police Department.

         Rosier confessed to police that he was there to have oral sex with the children, and police found condoms in his car. Rosier moved to dismiss the case, and he argued that all of his communication had been with an adult and not a child or someone he believed to be a child. Therefore, he said, his conduct did not fall within the range of behavior prohibited by the statute and, accordingly, the indictment should be dismissed. The State filed a response to the motion to dismiss and argued that, because Rosier had made arrangements for sex with minors by communicating with the person who he believed had total control over the children, the motion to dismiss should be denied. Rosier pleaded guilty and reserved for appeal the issue raised in his motion to dismiss. The trial court then denied the motion to dismiss as moot.

         Analysis

         Rosier argues that the trial court erred when it denied his motion to dismiss because, he says, the facts are undisputed and they failed to establish a violation of § 13A-6-122, Ala. Code 1975. Both Rosier and the State agree that this is a case of first impression in Alabama. We apply the de novo standard of review to questions of statutory construction. Ex parte Ankrom, 152 So.3d 397, 407 (Ala. 2013). We also apply a de novo standard of review when considering a trial court's conclusions of law and its application of law to the facts. Stewart v. State, 990 So.2d 441, 442 (Ala.Crim.App. 2008).

         Section 13A-6-122, Ala. Code 1975, provides:

" [A] person who, knowingly, with the intent to commit an unlawful sex act, entices, induces, persuades, seduces, prevails, advises, coerces, lures, or orders, or attempts to entice, induce, persuade, seduce, prevail, advise, coerce, lure, or order, by means of a computer, on-line service, Internet service, Internet bulletin board service, weblog, cellular phone, video game system, personal data assistant, telephone, facsimile machine, camera, universal serial bus drive, writable compact disc, magnetic storage device, floppy disk, or any other electronic communication or storage device, a child who is at least three years younger than the defendant, or another person believed by the defendant to be a child at least three years younger than the defendant to meet with the defendant or any other person for the purpose of engaging in sexual intercourse, sodomy, or to engage in a sexual performance, or sexual conduct for his or her benefit or for the benefit of another, is guilty of electronic solicitation of a child."

         The parties agree that Rosier did not communicate with a child or with a person who he believed to be a child. Rosier argues that, by communicating exclusively with an adult, his actions did not violate § 13A-6-122. The State argues that, because the statute criminalizes not only the completed offense, but also an attempt to commit the offense, proof that Rosier had direct communication with a child or a person he believed to be a child was not necessary. The State further argues that Rosier was guilty of attempted solicitation of a child because he communicated with the purported mother of the children in an attempt " to entice, induce, persuade, seduce, prevail, advise, coerce, lure, or order" the children to engage in sexual ...


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