Opinion
Nos. 1D13–0570 1D13–0907.
2014-07-25
STATE of Florida, Appellant/Cross–Appellee, v. Jermaine Franklin DAVIS, Appellee/Cross–Appellant.
Pamela Jo Bondi, Attorney General, Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, and Katrina Harden, Assistant State Attorney, Gainesville, for Appellant/Cross–Appellee. Nancy A. Daniels, Public Defender, A. Victoria Wiggins, Assistant Public Defender, Tallahassee, and Rachael J. Morris, Assistant Public Defender, Gainesville, for Appellee/Cross–Appellant.
Pamela Jo Bondi, Attorney General, Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, and Katrina Harden, Assistant State Attorney, Gainesville, for Appellant/Cross–Appellee. Nancy A. Daniels, Public Defender, A. Victoria Wiggins, Assistant Public Defender, Tallahassee, and Rachael J. Morris, Assistant Public Defender, Gainesville, for Appellee/Cross–Appellant.
BENTON, J.
The state appeals a downward departure sentence—eighteen months in prison followed by eight years' probation as a sex offender—imposed following Jermaine Franklin Davis's convictions for using a computer service to solicit a person believed to be a thirteen-year-old girl to engage in unlawful sexual conduct, for thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child, and for unlawful use of a two-way communications device. See§§ 847.0135(3)(a), (4)(a); 934.215, Fla. Stat. (2012).
On the main appeal, we affirm the downward departure sentencing for what was conceded to be an isolated incident. The trial court imposed a sentence below the statutory guidelines, basing the downward departure sentence on two statutory subsections: 1) “The victim was an initiator, willing participant, aggressor, or provoker of the incident” and 2) “The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(f), (j), Fla. Stat. (2012).
On this issue, the trial judge explained his reasoning as follows:
It would seem improper that the State is able to argue, well, there is a victim in the case. It's an imaginary victim; it's the State posing as an individual. But there is a sufficient person on the other end to qualify for the offense of traveling to meet a minor, when, in fact, there is no minor, but the Defendant believed there was; where the State has, in fact, been all of those things in the case, and the Court not be able to consider that as a proper mitigator in the case.
This case—if that downward departure, the purpose for that is to have any meaning whatsoever, in this Court's opinion, then this would certainly be the case. And that is, to consider the activity of the individual who is—ends up being the victim in the case and their responsibility for the ultimate result, where they are indeed victims, but still, nonetheless, primarily responsible for the act.
As the state contends, we recently ruled out the “victim as initiator” ground for downward departure in a case in which the defendant was convicted after responding to a Craigslist advertisement purportedly placed by a father seeking “an older, patient experienced guy” to show his 14–year–old daughter “how it should really be” after she had a “bad first experience.” State v. Murphy, 124 So.3d 323, 327 (Fla. 1st DCA 2013). Unlike the present case, however, the fictitious father in Murphy, not the fictitious victim, was the “initiator.” In any event, the rule is that a downward departure should be upheld if any ground on which the trial court relies is valid. See State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999) (“In addition, even if some of the court's stated reasons are insufficient, only one valid reason is necessary to sustain a departure.”). “When multiple reasons exist to support the mitigation, the mitigation shall be upheld when at least one circumstance or factor justifies the mitigation regardless of the presence of other circumstances or factors found not to justify mitigation.” § 921.002(3), Fla. Stat. (2012).
Under subsection (j), the trial court's alternative basis for downward departure, the state conceded that the episode was an isolated incident, and the dissenting opinion concedes that competent substantial evidence supports the trial court's finding of fact that Mr. Davis's remorse was genuine. Competent and substantial evidence also supports the trial court's finding that Mr. Davis, who has lived with his mother his entire life, did not commit these crimes in a “sophisticated” fashion. The “several distinctive and deliberate steps,” see State v. Salgado, 948 So.2d 12, 17 (Fla. 3d DCA 2006), that he took in committing the offense were for the most part along a path government agents carefully laid out for him. The trial judge was entitled to conclude that Mr. Davis was “cooler online” than in real life. For Mr. Davis, it all began when he responded to an online advertisement, purportedly posted by a 32–year–old woman on an adults-only dating website. While the advertisement stated that the 32–year–old's “little sister” was in town and that they were “looking for a friend to have fun with tonight,” the age of the “little sister” was not stated.
I get home, I kiss my mom/And she fixes me a snack/I head down to my basement bedroom/And fire up my Mac
...
Online I'm out in Hollywood/I'm 6'5 and I look damn good/Even on a slow day, I can have a three way/Chat with two women at one time
...
I'm so much cooler online/Yeah I'm cooler online
Brad Paisley, Online (Arista Nashville 2007).
Seeing the ad, Mr. Davis invited the supposed 32–year–old out. But the detective answered (also online) that she (posing as the 32–year old who had posted the ad) and her sister were not “looking to hang out and have a relationship.” Thus began a dialogue that lasted approximately two hours, first online (“instant messenger”), then on the telephone. The detective posing as the 32–year–old repeatedly asked him what he was going to do when he came over and what he wanted to do to her sister. She told him the little sister was a youngster who wanted to learn new things, and directed him to bring condoms with him when he came to see them at the address she gave him. His conversations directly with the purported thirteen-year-old were limited to a few (maybe two) awkward minutes on the telephone, and to about twenty lines on “instant messenger.”
Unlike the defendant in State v. Fureman, ––– So.3d ––––, 2014 WL 656756, 39 Fla. L. Weekly D408 (Fla. 5th DCA Feb. 21, 2014), Mr. Davis did not respond to an advertisement entitled “ ‘Parenting Help Wanted,’ ” understanding that the posting offered sex with a child. Unlike the defendant in State v. Subido, 925 So.2d 1052, 1058 (Fla. 5th DCA 2006), relied on by the Fureman court, Mr. Davis did not hatch a plan on his own, then creep “ ‘in a stealth-like manner’ ” into the sleeping victim's bed. There is no basis on which to disturb the trial court's downward departure.
On cross-appeal, Mr. Davis argues that he was entrapped as a matter of law. He challenges the trial court's denial of his motions to dismiss, which maintained that, on both objective and subjective theories of entrapment, the undercover law enforcement officers had entrapped him. We approve the lower court's denial of these motions and affirm the convictions.
As regards the “objective entrapment” prong of appellant's argument, we reject his characterization of the pleadings and the evidence. Although appellant was originally lured by the prospect of a sexual liaison with a 32–year–old woman, the evidence cannot fairly be read as showing that he was promised the 32–year–old's sexual favors as an inducement to interact sexually with the child.
As regards the “subjective entrapment” prong, the issue boils down to whether the appellant was predisposed to commit the offenses when government agents originally broached the subject. Our recent decision in Gennette v. State, 124 So.3d 273 (Fla. 1st DCA 2013) is not controlling because the state stipulated there that Gennette was not predisposed to commit the offenses charged. Id. at 278.
In the present case, the jury could have found—the evidence was uncontroverted—that Mr. Davis told the undercover officer: “And actually, it's kind of been on my mind to do something like that.” Arguably ambiguous—the government agent had raised the possibility of a ménage à trois—the statement was nevertheless uttered in the context of engaging in sexual activity with the fictitious thirteen-year-old child, and sufficiently raised a factual question as to Mr. Davis's predisposition to engage sexually with children to create a question for the jury. See Munoz v. State, 629 So.2d 90, 100 (Fla.1993) (holding that, when there exists a factual question on predisposition, the case should go to the jury).
Mr. Davis also argues on cross-appeal that his dual convictions under subsections 847.0135(3)(a) and (4)(a) violate constitutional prohibitions against double jeopardy. On this “degree variant” issue, we are bound by our prior decision in Elsberry v. State, 130 So.3d 798, 798 (Fla. 1st DCA 2014), which extended the holding in State v. Murphy, 124 So.3d at 330, to the specific statutory subsections at issue here. See also Cantrell v. State, 132 So.3d 931, 933 (Fla. 1st DCA 2014) (citing Elsberry ) and Griffis v. State, 133 So.3d 653, 654 (Fla. 1st DCA 2014) (citing Elsberry and Cantrell ). Contra Shelley v. State, 134 So.3d 1138, 1141 (Fla. 2d DCA 2014) (“Thus, the soliciting offense does not contain an element that is not found in the traveling offense. As a result, dual convictions for soliciting and traveling in the course of one criminal transaction or episode violate the prohibition against double jeopardy.” (citations omitted)); Hartley v. State, 129 So.3d 486, 491 (Fla. 4th DCA 2014) (same); Pinder v. State, 128 So.3d 141, 142–44 (Fla. 5th DCA 2013) (same). We certify conflict with Shelley, Hartley, and Pinder.
Affirmed. MARSTILLER, J., concurs in result; WETHERELL, J., concurs in part and dissents in part with opinion.
WETHERELL, J., concurring in part and dissenting in part.
I concur in the decision to affirm Davis' conviction, but I respectfully dissent from the decision to affirm Davis' downward departure sentence under section 921.0026(2)(j), Florida Statutes (2011). Accordingly, on the State's appeal, I would reverse and remand for resentencing in accordance with the Criminal Punishment Code scoresheet, which shows a lowest permissible prison sentence of 44.7 months.
I agree with majority that section 921.0026(2)(f) is not a valid basis for a downward departure under the circumstances of this case. See State v. Murphy, 124 So.3d 323, 331 (Fla. 1st DCA 2013) (holding that section 921.0026(2)(f) is not applicable when the victim alleged to be the “initiator, willing participant, aggressor, or provoker of the incident” is actually an undercover officer).
For a downward departure to be valid under section 921.0026(2)(j), the trial court must find based upon the preponderance of the evidence that “1) the crime is committed in an unsophisticated manner, 2) it was an isolated incident, and 3) the defendant has shown remorse.” Murphy, 124 So.3d at 331. The trial court's finding as to each element must be supported by competent substantial evidence. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). Here, it is undisputed that Davis' crime was an isolated incident and there is competent substantial evidence to support the trial court's finding that Davis has shown remorse. Accordingly, the validity of the downward departure in this case turns on whether Davis' crime was committed in an unsophisticated manner.
A crime is committed in an unsophisticated manner when the acts constituting the crime are “artless, simple and not refined.” Murphy, 124 So.3d at 331 (quoting State v. Walters, 12 So.3d 298, 301 (Fla. 3d DCA 2009)). By contrast, a crime is not committed in an unsophisticated manner when it requires the defendant to take “several distinctive and deliberate steps” to commit the crime. State v. Fureman, ––– So.3d ––––, 2014 WL 656756, 39 Fla. L. Weekly D408 (Fla. 5th DCA Feb. 21, 2014) (quoting State v. Salgado, 948 So.2d 12, 18 (Fla. 3d DCA 2006)).
Here, the record reflects that Davis undertook a series of distinctive and deliberate steps to commit the charged offense: he engaged in several hours of conversation with an undercover officer posing as a 13–year–old girl and her older sister, both online and on the phone; he evinced a consciousness of guilt and a desire to conceal the contents of his communications about what he intended to do with the minor by suggesting that they talk in person or on the phone rather than in the online chat; he made unsolicited comments about his sexual prowess and the things that he could “teach” the minor; he drove to Walmart to purchase condoms; and then he drove across town in order to have sex with a minor. These acts, taken together, reflect a level of sophistication that, in my view, precludes a downward departure under section 921.0026(2)(j).
The online conversation started with emails through the Fling.com website and continued on the Yahoo instant messaging service.
For example, after Davis described the types of massages that he could perform—the “a,” or adult, massage being “everything” and the “g” massage being “everything but boobs prmise land and butt”—the following discussion took place in the online chat between Davis and the undercover officer posing as the minor:
[Minor]: whatchu wanna do wit me?
[Davis]: idk deppend on wat u wana do we can chill at first and go from there
[Minor]: oh we aint looking to chill
[Davis]: well i dont want to say it on here u feel [m]e
The following discussion took place on one of the calls that Davis made to the undercover officer posing as the minor's older sister:
[Older sister]: She [the minor] is wanting to learn some new things. What—do you do anything—
[Davis]: Well, I—well, I've studied on women for 13 years and like I know everything, Kama Sutra, G–Spot, hot spot, best way to do oral, best way to finger. Yeah, I used to teach ladies how to have orgasms.
The trial court found that Davis committed the crimes in an unsophisticated manner because he was “naive,” “easily led,” and guided throughout the process by the undercover officers, but the record does not support these findings. Rather, the record reflects that Davis, not the officers, prompted the discussion of sexual matters; that Davis, not the officers, suggested talking in person and on the phone rather than in the online chat; and that, as the trial court found, Davis “knew his conduct wasn't right” and that he had “every opportunity ... to not follow through” with his actions. Additionally, the trial court erred by focusing more on the actions of the undercover officers than on Davis' actions. See Fureman, ––– So.3d ––––, 39 Fla. L. Weekly D408 (“Here, although the lower court found that Fureman's acts were unsophisticated because the police initiated the series of events by posting the advertisement, this rationale fails to account for [Fureman]'s actions in completing the crime.”).
The trial court did not make the Brad Paisley-inspired finding attributed to it by the majority, and even if it had, there is certainly nothing “cool” about Davis' online persona and communications in this case. Moreover, in my view, whether Davis was “ ‘cooler online’ than in real life” has nothing to do with whether he committed the crimes in this case in an unsophisticated manner.
I recognize that, in Murphy, this court affirmed a downward departure sentence for a defendant who, like Davis, arranged to have sex with a minor after responding to an online ad posted as part of an undercover sting operation. The defendant in Murphy used his mobile phone to answer the online ad and communicate with the undercover officers and this court affirmed the trial court's finding that the crime was committed in an unsophisticated manner because the communication tools used by the defendant “are so ubiquitous today as to no longer require any level of sophistication to use them.” See124 So.3d at 332. I do not read Murphy to hold that the use of a mobile phone (or any other “ubiquitous” technological device) is sufficient, standing alone, to establish that the crime was committed in an unsophisticated manner; rather, as I read Murphy, the court simply held that notwithstanding the defendant's use of his mobile phone, there was evidence to support the trial court's determination that the crime was committed in an unsophisticated manner. Here, because in my view the evidence does not support the trial court's finding that Davis' crimes were committed in an unsophisticated manner, Murphy is distinguishable.
But see Fureman, ––– So.3d at ––––, 39 Fla. L. Weekly D408, at n. 2. (disagreeing with Murphy “to the extent it implies that, standing alone, use of a common communication tool in the commission of a crime is competent and substantial evidence that the crime was committed in an unsophisticated matter” and expressing the view that “using a computer to commit a crime evinces a level of sophistication that would not support a downward departure sentence”).
In sum, because the trial court's finding that Davis' crimes were committed in an unsophisticated manner is not supported by competent substantial evidence, the trial court erred in imposing a downward departure sentence under section 921.0026(2)(j). Accordingly, we should reverse Davis' sentence and remand for resentencing in accordance with the Criminal Punishment Code scoresheet.
* * *
[Davis]: thats y i wanted to finish talkin to ur sis make sure everything kool
[Davis]: thats y i call bak
[Davis]: i kno wat yall wana do and im down just got to make sure everything legit thats all
(all misspellings and phonetic words in original).
* * *
[Davis]: So, like—so yeah—so I'm—I could teach her like new stuff, show you new stuff, everything. ....
[Older sister]: Cool.... Well, how would you feel if I just wanted to watch you two?
[Davis]: That's straight
[Older sister]: You're good with that?
[Davis]: Yeah.