October 3, 2014
State of Alabama
from Mobile Circuit Court. (CC-13-4146).
Appellant: Deborah D. McGowin, Mobile.
Appellee: Luther Strange, atty. gen., and Tracy M. Daniel,
asst. atty. gen.
Judge. Windom, P.J., and Kellum, Burke, and Joiner, JJ.,
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.
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
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.
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).
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."
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
activity with him, and he took substantial steps toward the
commission of the offense by negotiating terms of the sexual
contact and traveling to the apartment where he believed the
this is a case of first impression, the rules of statutory
interpretation governing our resolution of this issue are
" 'When the language of a statute is plain and
unambiguous, as in this case, courts must enforce the statute
as written by giving the words of the statute their ordinary
plain meaning --they must interpret that language to mean
exactly what it says and thus give effect to the apparent
intent of the Legislature.' Ex parte T.B., 698
So.2d 127, 130 (Ala.1997)."
Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala.
1999), quoted with approval in Ex parte Ankrom, 152
So.3d 397, 409 (Ala. 2013).
statute criminalizes direct communication with a child at
least three years younger than a defendant and communication
with someone the defendant believes to be a child at least
three years younger than the defendant for the purpose of
engaging in sexual acts with the child. The statute also
criminalizes an attempt by a defendant " to entice,
induce, persuade, seduce, prevail, advise, coerce, lure, or
order" a child to meet with the defendant for the
purpose of engaging in sexual activity. " A person is
guilty of an attempt to commit a crime if, with the intent to
commit a specific offense, he does any overt act towards the
commission of such offense." § 13A-4-2, Ala. Code
attempted to induce the two children to meet with him to
engage in sexual activity. Definitions for the term "
induce" include " to call forth or bring about by
influence or stimulation" and " to cause the
formation of." Merriam--Webster's Collegiate
Dictionary 637 (11th ed. 2003). By communicating
electronically with a person he believed to be the mother of
the children with whom he intended to engage in sexual
activity, by stating the types of sexual activity he desired
to have with the children, and by traveling to the apartment
where he believed the children lived, Rosier attempted to
cause or bring about a meeting with the minors to engage in
unlawful sexual activity with them. Therefore, Rosier's
actions fulfilled the statutory requirements necessary to
prove an attempt to commit electronic solicitation of a
child. The trial court did not err when it denied
Rosier's motion to dismiss.
Although such decisions are not binding on this Court, we
note that several courts of appeals have reached the same
conclusion we have here. The Georgia Supreme Court in
State v. Cosmo, 295 Ga. 76, 757 S.E.2d 819 (2014),
held that a defendant can be convicted of attempting to
induce, solicit, or otherwise entice a child into engaging in
sexual activity even though the defendant communicated only
with the person the defendant believed to be the parent of
that child. Cosmo was convicted of violating Ga. Code Ann.
§ 16-12-100.2(d)(1), entitled the " Computer or
Electronic Pornography and Child Exploitation Prevention Act
of 2007." The version of the statute in effect at the
time Cosmo was indicted was similar in all relevant respects
to § 13A-6-122, Ala. Code 1975. The Georgia statute
prohibited any person from intentionally or willfully using a
computer on-line service " or other electronic device to
seduce, solicit, lure, or entice, or attempt to seduce,
solicit, lure, or entice a child or another person believed
by such person to be a child" to commit an unlawful sex
act. Cosmo communicated via the Internet and telephone with
an undercover agent posing as the mother of a minor daughter,
and they agreed on details of the sexual encounter Cosmo
intended to have with the minor. Cosmo argued on appeal that
the evidence did not support his conviction because, he said,
the State failed to prove that he had contact with a child or
someone he believed to be a child. The Georgia Court of
Appeals agreed and reversed his conviction, Cosmo v.
State, 320 Ga.App. 397, 739 S.E.2d 828 (2013), but the
Georgia Supreme Court reversed that judgment. The Georgia
Supreme Court held:
" [Ga. Code Ann.,] § 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 [Ga. Code Ann.,]
§ 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 [Ga. Code Ann.,] § 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 toward soliciting a
child for that unlawful offense). Communication with a person
the defendant believes to be the parent of a child who is the
object of the defendant's attempt to solicit satisfies
the intent element of the offense."
State v. Cosmo, 295 Ga. at 78, 757 S.E.2d at 820-21
Georgia Supreme Court discussed United States v.
Murrell, 368 F.3d 1283, 95 Fed.Appx. 1283 (11th Cir.
2004), in which the United States Court of Appeals for the
Eleventh Circuit reached the same result when construing a
substantially similar federal statute. That statute, 18
U.S.C. § 2422(b), provides:
" Whoever, using the mail or any facility or means of
interstate or foreign commerce ... knowingly persuades,
induces, entices, or coerces any individual who has not
attained the age of 18 years, to engage in prostitution or
any sexual activity for which any person can be charged with
a criminal offense, or attempts to do so, shall be fined
under this title and imprisoned not less than 10 years or for
Georgia Supreme Court stated:
" In United States v. Murrell, 368 F.3d 1283,
95 Fed.Appx. 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:
" 'By negotiating with the purported father of a
minor, Murrell attempted to stimulate or cause the minor to
engage in sexual activity with him. Consequently,
Murrell's conduct fits squarely within the definition of
" induce." Moreover, we note that the efficacy of
§ 2422(b) would be eviscerated if a defendant could
circumvent the statute simply by employing an intermediary to
carry out his intended objective. In this case, Murrell
communicated with an adult who he believed to be the father
of a thirteen-year-old girl and who presumably exercised
influence over the girl. Murrell's agreement with the
father, who was acting as an agent or representative, implied
procuring the daughter to engage in sexual activity. Because
we find that Murrell acted with the intent to induce a minor
to engage in unlawful sexual activity, the first element of
attempt is satisfied.'
" Id. at 1287."
295 Ga. at 78-79, 757 S.E.2d at 821.
Georgia Supreme Court also stated that at least five other
United States Circuit Courts of Appeals had held that 18
U.S.C. § 2422(b) is violated even when the defendant
does not communicate directly with the child, but
communicates with a parent or other adult intermediary.
State v. Cosmo, 295 Ga. at 79 n. 3, 757 S.E.2d at
821 n.3 (citing cases). We also agree with the recent
analysis of this issue by the United States Court of
Appeals for the Seventh Circuit. United States v.
McMillan, 744 F.3d 1033 (7th Cir. 2014). That court
stated: " The statute prohibits not only the knowing
persuasion (etc.) of the minor, but also attempts to
persuade, induce, entice, or coerce the minor into the
criminal sexual acts. One particularly effective way to
persuade or entice a person to do something is to enlist the
help of a trusted relative, friend, or associate."
Id. at 1035-36.
our holding in this case -- that Rosier was properly
convicted of violating § 13A-6-122 because he attempted
to commit the electronic solicitation of a child -- is the
same as the holding reached by other courts of appeals.
on the foregoing, we affirm the circuit court's judgment.
P.J., and Kellum, Burke, and Joiner, JJ., concur.