Entrapment

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Can an entrapment case in the State of Georgia be won?  Yes.  Does entrapment apply to snitches or government agents?  Yes.  A person is not guilty of a crime if the arrested person’s conduct is induced through entrapment by a government agent.  Entrapment exists when the idea of the committing the crime originated with a government agent by deceitful means and induced the arrested person to commit the act, which the arrested person would not have committed, except for the conduct of the government agent.

To constitute entrapment, the arrested person must have been induced to commit a criminal act that he would not have otherwise committed except by undue persuasion, incitement, or deceitful means implemented by the government agent.

No entrapment exists when a police officer or an agent of the police merely furnishes an opportunity to commit a criminal offense to a person who is already ready and willing to commit the criminal offense.

If an officer has reason to believe that the law is being violated, the officer may proceed to ascertain whether those who are thought to be doing so are actually committing a criminal offense. If the conduct of the officer is such as not to induce an innocent person to commit a crime but to secure evidence upon which a guilty person can be brought to justice, then there is no entrapment.

The State has the burden of proving beyond a reasonable doubt that the arrested person was not entrapped.

If you feel as though you have been entrapped by law enforcement or an agent of law enforcement it is important that you hire an experienced lawyer who will thoroughly investigate your case and fight for you. If you are charged in Gwinnett, Cobb, Cherokee, Fulton, Dekalb, Clayton, or Newton County, and believe law enforcement may have acted inappropriately, call our office at 404-581-0999 today for a free consultation.

Aggravated Child Molestation in Douglas County

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Aggravated Child Molestation is a serious crime in the State of Georgia. In fact, it is the worst crime that one can be accused of committing. It is imperative that you retain a qualified attorney immediately if you are being accused of aggravated child molestation in Douglas County. Many allegations of aggravated child molestation are false. Even if you know the allegation of aggravated child molestation against you is made up, you still must take it very seriously and aggressively defend yourself. All it takes is the word of the child, if believed, to convict you.

If you are arrested, do not talk to the police. You will be taken to the Douglas County jail and you will be on the first appearance calendar the following day.

O.C.G.A. § 16-6-4 defines aggravated child molestation as follows:

A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which physically injures the child or involves an act of sodomy.

If the alleged victim was physically injured then it is not necessary for the state to prove sodomy.

It must be shown that the alleged victim was under 16 at the time of the act in order to be charged with aggravated child molestation.

Penetration or force is not a requirement of aggravated child molestation. The victim’s testimony that it was painful is sufficient to prove physical injury and no medical evidence is required to corroborate.

If you are convicted of aggravated child molestation in Douglas County, then the sentence will either be life imprisonment or a split sentence of a mandatory minimum of 25 years imprisonment and probation for life. The defendant will also have to be placed on the sex offender registry for life.

If someone is making an allegation of aggravated child molestation against you, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of aggravated child molestation and call us. Time is of the essence to properly investigate the allegations.

Do not wait until the Douglas County District Attorney actually returns an indictment against you before seeking an attorney. Child Molestation cases can be proven solely on the victim’s own testimony. Therefore, it is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

DeKalb Sexual Battery Attorney

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in DeKalb County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Sodomy in Clayton County

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Sodomy is a serious crime in Clayton County.  O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A. §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

If you are arrested in Clayton County for sodomy or aggravated sodomy, you will be in the Clayton County jail. You will be on the first appearance calendar the next morning at the Clayton County jail at 11:30am. After that date, you will be a preliminary hearing in Clayton County Magistrate Court.

Once your case is indicted, it will be transferred to Clayton County Superior Court for trial.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Trafficking Marijuana in Dekalb County

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If you are arrested for marijuana in Dekalb County, your case will be prosecuted in Dekalb County Superior Court. The penalties you could possibly face if convicted depend on how much marijuana you have with you at the time of your arrest.

Georgia regulates marijuana through the Georgia Controlled Substance Act and O.C.G.A. §16-13-1(a)(1) says that marijuana is a controlled substance. The Georgia codes that specifically regulate marijuana crimes are O.C.G.A. § 16-13-30(j) and O.C.G.A. § 16-13-31(c). The statutes say that “It shall be unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana”. The penalties an individual faces for possessing marijuana depend on the quantity of marijuana and could range from a simple fine to up to 15 years in prison.

If you are caught with less than an ounce of marijuana, you will be charged with a misdemeanor and face a fine of up to $1000 and/or a year in jail. If you are caught with more than an ounce but less than 10 pounds of marijuana, you face a felony conviction and 1-10 years in prison.

However, for higher amounts of marijuana the penalties are severe. If you possess marijuana in excess of 10 pounds, you will be charged with trafficking marijuana and the penalties depend on the amount you possess:

  • If you are arrested with 10-2,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 5 years in prison and a $100,000 fine.
  • If you are arrested with 2,000-10,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 7 years in prison and a $250,000 fine.
  • If you are arrested with more than 10,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 15 years in prison and a $1 million fine.

As you can see, the penalties for trafficking marijuana are steep. It is important that you hire a skilled criminal defense attorney to represent you if you are charged with this offense. The lawyers at W. Scott Smith are experienced at defending these types of crimes and will work tirelessly to discover defenses in your case and protect you from these severe punishments. Call our office today at 404-581-0999 for a free consultation.

 

 

What is the difference between malice murder, 2nd-degree murder, and felony murder?

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Malice murder in Georgia is defined in OCGA § 16-5-1(a) as causing the death of another human being with malice aforethought. Express malice is the deliberate intention to take a life unlawfully. Malice can also be implied based on the circumstances of the killing. The intent to kill (aforethought) can be formed in an instant and does not require proof of any sort of plan or motive. Malice murder in Georgia carries a punishment of life in prison with or without the possibility of parole.

Murder in the 2nd Degree in Georgia (OCGA § 16-5-1(c)) is limited. It only arises when the death of a child under 18 is caused by criminal negligence. Criminal negligence is an act or failure to act that demonstrates a willful, wonton, or reckless disregard for the safety of others who might reasonably be expected to be injured by the act or failure to act. The punishment for Murder in the 2nd Degree is a minimum of 10 years and a maximum of 30 years in prison.

Felony murder (OCGA § 16-5-1(b)) is exactly what it sounds like. It is where someone dies during the commission of a felony. For example, defendant A drives defendant B to a bank to rob it. Defendant A stays in the car while B goes into the bank. During the robbery, B shoots and kills the teller. A then drives B away from the scene. B can be charged with malice murder and felony murder based on the death of the teller during the robbery. A can be charged with felony murder because a person died during the commission of the felony of robbery. The punishment for Felony Murder is the same as malice murder. It carries a punishment of life in prison with or without parole.

If you or a loved one are charged with malice murder, murder in the 2nd degree, or felony murder give us a call for a free case consultation at 404-581-0999.

Teenager Charged as an Adult in Fulton County

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There are two reasons why a minor might be charged as an adult. The first is they’re 17. Even though you’re not considered an adult until your 18th birthday for most things – i.e. voting, buying tobacco or a weapon – in the Georgia criminal justice system you are an adult at your 17th birthday.

The other reason is the crime the child is charged with. Under OCGA § 15-11-560 a child that is at least 13 will be charged as an adult in Superior Court if they are alleged to have committed certain crimes. These crimes include murder, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, armed robbery with a firearm, and aggravated assault or battery against a police officer. However, there are circumstances that allow these types of cases to be sent back to Juvenile Court.

Every case is different and if your child has been charged as an adult it is imperative to seek out an experienced attorney. Give us a call for a free case consultation.

Self Defense In Georgia: Immunity Hearing in Cobb County

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If you are charged with a crime in Cobb County and believe you acted in self-defense, you are entitled to an immunity hearing. We will need to file an immunity motion and request a hearing in Cobb County Superior Court.

O.C.G.A. 16-3-24.2 gives you this right to an immunity hearing. At this hearing, a judge will determine if you acted in self-defense and the judge can dismiss your case.

Soon after you are arrested, start gathering information that may assist in your defense. Get contact information for any potential witness so we can interview them. Write down everything you remember about the case and why you believed you had to use force.

The Cobb County Superior Court judge has a duty to determine before trial whether a person claiming the use of threats or force in self-defense or defense of property is immune from prosecution.

You have the burden of proof at the immunity hearing in proving that you were justified in using force by a preponderance of the evidence.

If the Cobb County Superior Court judge rules against you in an immunity hearing, you can still have a jury trial and argue self-defense to the jury. It might be easier to win at trial due the burden of proof being beyond a reasonable doubt. At the immunity hearing, the burden is on the defense to prove self-defense. At trial, the burden shifts to the State to show that the defendant was not acting in self-defense.

If you are arrested for any crime in Cobb County where you believe you acted in self-defense, please call our office 24/7 at 404-581-0999. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation.

Enticing A Child for Indecent Purposes in Dekalb County

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Enticing a child for indecent purposes is a serious crime in Dekalb County. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The State must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

The Dekalb County District Attorney’s office vigorously prosecutes these cases.

Do not wait until the Dekalb County District Attorney actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

Rape in Paulding County

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Rape in Paulding County is a serious crime in Georgia. O.C.G.A. § 16-6-1 defines rape as follows:

  1. A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

Here is what you should do if arrested for rape in Paulding County.

  1. Hire an attorney – Make sure that attorney actually handles and tries rape cases. Most criminal defense attorneys do not handle rape cases. Make sure the attorney you talk to does regularly handles rape cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for rape, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    2. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    3. Witnesses – Immediately make a list of any person who you think might have information about this rape accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for rape in  Paulding County.

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

 

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.