Electronically Filed 10/23/2013 02:16:08 PM ET
RECEIVED, 10/23/2013 14:18:36, Thomas D. Hall, Clerk, Supreme Court
IN THE SUPREME COURT OF FLORIDA
THOMAS MURPHY,
:
Petitioner,
v.
:
STATE OF FLORIDA,
:
CASE NO.
L.T. No. 1D12-4514/1D12-4810
Respondent.
PETITIONER'S BRIEF ON JURISDICTION
NANCY A. DANIELS
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
RICHARD M. SUMMA
ASSISTANT PUBLIC DEFENDER
FLA. BAR NO. 0890588
LEON COUNTY COURTHOUSE
301 S. MONROE ST., SUITE 401
TALLAHASSEE, FLORIDA 32301
(850) 606-8514
[email protected]
COUNSEL FOR PETITIONER
TABLEOFCONTENTS
PAGE(S)
TABLE OF CONTENTS
i
TABLE OF AUTHORITIES
ii
PRELIMINARY STATEMENT
1
STATEMENT OF THE CASE AND FACTS
2
SUMMARY OF THE ARGUMENT
3
ARGUMENT
4
This Court should exercise jurisdiction because the district court's
decision, with respect to double jeopardy, is in express and direct
conflict with decisions of this Court and other district courts of appeal
and wrecks havoc in the area of double jeopardy law; the decision
also construes the due process provision of the Florida Constitution
and erroneously defines the limits of the provision by employing a
bright line rule in derogation of the established totality of the
circumstances test.
4
CONCLUSION
10
CERTIFICATE OF SERVICE
11
CERTIFICATE OF FONT AND TYPE SIZE
11
1
TABLE OF AUTHORITIES
CASES
PAGE(S)
Bist v. State, 35 So. 3d 936 (Fla. 5th DCA 2010) . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991) . . . . . . . . . 9
Curry v. State, 876 So. 2d (Fla. 4th DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9
Gil v. State, 118 So. 3d 787 (Fla. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 6
Hare v. State, 114 So. 3d 252 (Fla. 5th DCA 2013) . . . . . . . . . . . . . . . . . . . . . 3, 5, 6
Madera v. State, 943 So. 2d 960 (Fla. 4th DCA 2006) . . . . . . . . . . . . . . . . . . . . 4, 9
Munoz v. State, 629 So. 2d 90 (Fla. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Rimondi v. State, 89 So. 3d 1059 (Fla. 4th DCA 2012) . . . . . . . . . . . . . . . . . 3, 5, 6
Rojas v. State, 288 So. 2d 234 (Fla. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
State v. Hume, 512 So. 2d 185 (Fla. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
State v. Sarmiento. 397 So. 2d 643 (Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
United States v. White, 401 U.S. 745 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Valdes v. State, 3 So. 3d 1067 (Fla. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
STATUTES
Section322.34(2), Florida Statutes ..................................... 5
Section322.34(5), FloridaStatutes ..................................... 5
H
TABLE OF AUTHORITIES
STATUTES
PAGE(S)
Section775.021, Florida Statutes ...................................... 6
Section 775.021(4)(b)2, Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7
Section 775.021(4)(b)3, Florida Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
RULES
Rule 9.030(a)(2)(A)(ii), Florida Rules of Appellate Procedure . . . . . . . . . . . . . . . 5
Rule 9.030(a)(2)(A)(iv), Florida Rules of Appellate Procedure . . . . . . . . . . . . . . . 4
CONSTITUTIONS
Fla.Const., Art.I, Sec.12 ............................................ 8
Fla. Const.,Art.I, Sec.9 ......................................... 3,4,9
U.S.Const.,Amend.4............................................... 8
111
IN THE SUPREME COURT OF FLORIDA
THOMAS MURPHY,
:
Petitioner,
v.
:
STATE OF FLORIDA,
:
Respondent.
:
CASE NO.
L.T. No. 1D12-4514/1D12-4810
/
PETITIONER'S BRIEF ON JURISDICTION
PRELIMINARYSTATEMENT
THOMAS MURPHY was the defendant in the trial court and the
appellee/cross-appellant before the First District Court ofAppeal. He will be referred
to herein by name. The opinion ofthe First District Court is State v. Murphy, Slip op.
1D12-4514/l D12-4810 (Fla. 1" DCA, Oct. 9, 2013), and is attached as an appendix
to this brief.
1
STATEMENT OF THE CASE AND FACTS
Petitioner, Thomas Murphy, was convicted after jury trial of one Count of
using a computer service to solicit a person believed to be the parent of a child to
engage in unlawful sexual conduct with a person believed to be the child. §
847.0135(3)(b), Fla. Stat. (2011). Mr. Murphy was also convicted of one Count of
"traveling to meet a minor" after using a computer service to solicit a person believed
to be a parent of a child to engage in unlawful sexual conduct with a person believed
to be the child. § 847.0135(4)(b), Fla. Stat. (2011). The trial court imposed a
downward departure sentence.
Mr. Murphy appealed his judgment and sentence. The State of Florida crossappealed the downward departure sentence.
On appeal, Mr. Murphy argued: (1) the evidence of guilt was legally
insufficient; (2) objective entrapment; (2) a violation of double jeopardy for the
imposition of multiple convictions because the "solicitation" offense was subsumed
within the "traveling" offense. In its decision, the district court rejected all three of
Murphy's arguments on appeal. The district court also rejected the State's challenge
to the downward departure sentence.
2
SUMMARY OF THE ARGUMENT
This Court has discretionary jurisdiction to review the decision ofthe district
court because the decision is in express and direct conflict with decisions of this
Court, and in express and direct conflict with decision of other district courts on the
same points of law. This Court also possesses the discretion to review the case
because the decision below expressly construes article I, section 9, of the Florida
Constitution as to the issue of objective entrapment.
This Court should accept review ofthe case because the doublejeopardy ruling
inflicts great mischief in the area ofdoublejeopardy law. The ruling that offenses of
different degrees, i.e., second degree felony and third degree felony, necessarily
reflect the legislative intent to authorize dual convictions, is legally incorrect and in
express and direct conflict with Gil v. State, 118 So. 3d 787 (Fla. 2013), Valdes v.
State, 3 So. 3d 1067 (Fla. 2009), Hare v. State, 114 So. 3d 252 (Fla. 5'h DCA 2013),
and Rimondi v. State, 89 So. 3d 1059 (Fla. 4th DCA 2012). Specifically, the decision
below carries the profound effect of abrogating section 775.021(4)(b)2. and 3.,
Florida Statutes.
This Court should also accept review of this case because the district court's
ruling on objective entrapment has the effect of explaining, defining or otherwise
eliminating existing doubts arising from the language or terms of article I, section 9,
3
of the Florida Constitution. The decision below established, as bright line rule, that
an offer of sex as an inducement for the commission of a sex crime does not violate
article I, section 9, the "due process" provision of the Florida Constitution. This
ruling explains, defines and limits the protection afforded under article I, section 9,
and thereby eliminates any doubt that due process shields the individual from an offer
of sex as an inducement to commit a sex crime, notwithstanding any contrary
suggestion in Madera v. State, 943 So. 2d 960 (Fla. 4th DCA 2006), and Curry v.
State, 876 So. 2d (Fla. 4th DCA 2004).
ARGUMENT
This Court should exercisejurisdiction because the district
court's decision, with respect to double jeopardy, is in
express and direct conflict with decisions ofthis Court and
other district courts ofappeal and wrecks havoc in the area
of double jeopardy law; the decision also construes the
due process provision of the Florida Constitution and
erroneously defines the limits of the provision by
employing a bright line rule in derogation of the
established totality of the circumstances test.
This Court has discretionaryjurisdiction to review the decision of the district
court because the decision is in express and direct conflict with decisions of this
Court, and in express and direct conflict with decision of other district courts on the
same points of law. Fla.R.App.P. 9.030(a)(2)(A)(iv). This Court also possesses the
discretion to review the case because the decision below expressly construes article
4
I, section 9, of the Florida Constitution as to the issue of objective entrapment.
Fla.R.App.P. 9.030(a)(2)(A)(ii).
DOUBLE JEOPARDY
In the decision below, the district court did not challenge Murphy's assertions
that his dual convictions arose from a single criminal episode, do not constitute
distinct criminal acts, and the elements of the "solicitation" offense are subsumed
within the "traveling" offense. Nevertheless, the district court held that the mere fact
that the two offense are of different degrees (one third degree felony and one second
degree felony) reflects a "clear legislative intent" to authorize multiple punishments.
The district court's reasoning is anomalous. No case has ever held that the degree of
offense is relevant in determining a violation of double jeopardy or legislative intent
to authorize multiple punishments. In this sense, the decision below is in express
conflict with Gil v. State, 118 So. 3d 787 (Fla. 2013), Valdes v. State, 3 So. 3d 1067
(Fla. 2009), Hare v. State, 114 So. 3d 252 (Fla. 5th DCA 2013), and Rimondi v. State,
89 So. 3d 1059 (Fla. 4th DCA 2012).
For example, in Gil v. State, this Court held dual convictions for violations of
section 322.34(2), and section 322.34(5), Florida Statutes, violated double jeopardy.
One offense was a first degree misdemeanor, the other was a third degree felony.
Under the rule of the district court below, Gil was wrongly decided because the
5
offenses are different degrees of crime; the legislature therefore clearly intended
multiple punishments. The decision below is in express and direct conflict with Gil.
Express and direct conflict is also demonstrated in Hare v. State, 114 So. 3d
252 (Fla. 5* DCA 2013), and Rimondi v. State, 89 So. 3d 1059 (Fla. 4* DCA 2012).
In Hare, dual convictions were invalidated for aggravated manslaughter ofa child by
culpable negligence and child neglect. The former offense is a first degree felony, the
latter is a second degree felony. This result is in express and direct conflict with the
decision below.
In Rimondi, the defendant was convicted ofthird-degree grand theft and felony
retail theft, also a third degree felony. Although the two offenses were of the same
degree, multiple convictions were invalidated because the elements of third degree
grand theft were subsumed within the crime of retail theft. This result is likewise in
express and direct conflict with the decision below.
The obvious effect of the district court's decision is to effectively abrogate
section 775.021(4)(b)2., and 3., Florida Statutes, as the legislativelyprescribed means
of determining legislative intent to authorize multiple punishments. As stated in the
decision below, since a "clear legislative intent" was divined from that fact that the
offense are of different degrees, the district court found it unnecessary to refer to
section 775.021, Florida Statutes, as a guide to the determination oflegislative intent.
6
Slip op. at 13, n. 3. This reasoning is shocking because section 775.021(4)(b)2.,
operates to invalidate dual convictions for offenses which are "degrees of the same
offense as provided by statute." Under the reasoning of the district court, however,
the courts will never get to consider the effect of section 775.021(4)(b)2., because the
fact that the crimes are of differing degrees reflects the "clear legislative intent" to
authorize multiple punishments. The ruling of the district court below effectively
nullifies the operation of section 775.021(4)(b)2., Florida Statutes.
It is not surprising, therefore, that the decision below is in express and direct
conflict with the cited decisions, and many others. Because of the great potential for
disturbance in the uniformity of law, this Court should exercise its discretion to
review the decision below.
OBJECTIVE ENTRAPMENT
This Court possesses discretionary jurisdiction because the district court's
decision on the issue of objective entrapment is (1)in express and direct conflict with
decisions ofother district courts with regard to the correct legal test; and (2) construes
a provision of the state or federal constitution.
1. Express and direct conflict.
The determination of objective entrapment is made under a "totality of the
circumstances" test. See 3, Bist v. State, 35 So. 3d 936, 939 (Fla. 5* DCA 2010)
7
(citing Rochin v. California, 342 U.S. 165 (1952)). In the present case, however, the
district court declined to consider the totality of the circumstances. Rather, the
district court focused on only one circumstance, i.e., the offer of sex as an inducement
to commit a sex crime. The district court declined to consider the totality of the
circumstances in express and direct conflict with Bist and numerous other district
court cases. This Court should exercise its jurisdiction to resolve the conflict.
2. Construction of the state or federal constitution.
In order to qualify for discretionary review, the decision below must contain
a ruling which "explains, defines or overtly expresses a view which eliminates some
existing doubt" as to a provision of the Florida or federal constitution. Rojas v. State,
288 So. 2d 234, 236 (Fla. 1973). In State v. Hume, 512 So. 2d 185 (Fla. 1987), the
defendant moved to suppress statements obtained by an undercover agent throughuse
of a "body bug."
Such use of the body bug in the defendant's home was
unconstitutional under State v. Sarmiento, 397 So. 2d 643 (Fla. 1981). Hume argued
that Sarmiento was still good law notwithstanding the recent enactment of the
conformity provision of article I, section 12, of the Florida Constitution. The trial
court granted Hume's motion to suppress. The district court, however, ruled that
conformity provision required the court to follow United States v. White, 401 U.S.
745 (1971), to the effect that the use of the body bug did not violate the Fourth
8
Amendment; Sarmiento was no longer valid. In this manner, the district court
decision had defined the parameters of or resolved an existing doubt about the scope
ofthe conformity provision. See also, City National Bank of Florida v. Tescher, 578
So. 2d 701 (Fla. 1991)(explaining constitutional proscription against devise of
homestead property not applicable where surviving spouse waived right to homestead
through antenuptial agreement and there were no surviving minor children).
In the present case, Mr. Murphy argued that the offer of sex as an inducement
to commit a crime is a factor supporting a finding of objective entrapment, as in
Madera v. State, 943 So. 2d 960 (Fla. 4th DCA 2006), and Curry v. State, 876 So. 2d
29 (Fla. 4'h DCA 2004). In rejecting this argument, the district court explained the
parameters of article I, section 9, and resolved such doubt by ruling that an offer of
sex as inducement to commit a sex crime does not qualify as objective entrapment or
a violation of due process under article I, section 9, of the Florida Constitution.
Specifically, the district court acknowledged that the objective entrapment issue
required the court to define the limits of due process. Slip op. at 10, citing Munoz v.
State, 629 So. 2d 90, 98 (Fla. 1993).
In this manner, the district court explained or defined the parameters of article
I, section 9, and resolved any doubt whether an offer of sex as inducement to commit
a sex crime may constitute objective entrapment and a violation of due process. As
9
such, this Court possesses jurisdiction to review the district court's decision. As the
district court's decision grants law enforcement carte blanche to use the offer of sex
as a tool for inducement, this Court should exercise such jurisdiction to consider this
question of substantial concern. .
CONCLUSION
Based on the foregoing argument and supporting authority, this Court should
exercise its discretion and accept jurisdiction to review the decision of the First
District Court of Appeal.
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by
electronic mail to Heather Ross, Office of the Attorney General, the Capitol, at
[email protected], as agreed by the parties, and by U.S. Mail to
Appellant, Mr. Thomas Murphy, 2321 Eastgate Way, Tallahassee, FL 32308, on this
2
day of October, 2013.
CERTIFICATE OF FONT AND TYPE SIZE
I hereby certify that this brief was typed using Times New Roman, 14 point.
Respectfully submitted,
NANCY A. DANIELS
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
RICHARD M. SUMMA
Assistant Public Defender
Fla. Bar No. 0890588
Leon County Couithouse
301 S. Monroe St., Suite 401
Tallahassee, Florida 32301
(850) 606-8514
[email protected]
COUNSEL FOR PETITIONER
11
APPENDIX
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D12-4514
THOMAS MURPHY
Appellee.
THOMAS MURPHY
Appellant,
CASE NO. 1D12-4810
V.
STATE OF FLORIDA,
Appellee.
/
Opinion filed October 09, 2013.
An appeal from the Circuit Court for Leon County.
Frank Sheffield, Judge.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for State of Florida.
Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public
Defender, Tallahassee, for Thomas Murphy.
MARSTILLER, J.
The State charged Thomas Murphy with using a computer service to solicit a
person believed to be the parent of a child to engage in unlawful sexual conduct
with a person believed to be the child, and with thereafter traveling for the purpose
of engaging in unlawful sexual conduct with a person believed to be a minor. See
§§ 847.0135(3)(b), (4)(b), Fla. Stat. (2011).
The charges arose after Murphy
answered an advertisement posted on the Internet site www.craiaslist.org
("craigslist"), and arranged to have sex with a 14-year-old girl. The advertisement
was placed by a law enforcement officer posing as the girl's father. A jury found
Murphy guilty of both felonies. Departing downward from the 42-month prison
sentence indicated on Murphy's sentencing score sheet, the trial court withheld
adjudication and placed Murphy on concurrent terms of nine months in jail,
followed by five years' sex-offender probation.'
Seeking reversal of the verdicts and sentences, Murphy argues that: (1) he
was entitled to judgment of acquittal because the State presented no evidence
establishing he had solicited a person believed to be the parent of a child; (2) law
enforcement's undercover operation constituted objective entrapment; and (3)
separate punishments for using a computer service to solicit sex with a minor and
i Murphy also was charged with, and pled no contest to, possession of marijuana
and possession of drug paraphernalia. See §§ 893.13(6)(b) and 893.147(1), Fla.
Stat. (2011). For these misdemeanors, the trial court adjudicated Murphy guilty
and sentenced him to 176 days in jail.
2
traveling to meet a minor after using a computer service to solicit sex violate
double jeopardy principles.
The State cross-appeals the downward departure
sentence, arguing there was no competent, substantial evidence supporting the
mitigating factors the trial court relied on to depart from the minimum 42-month
prison term yielded by Murphy's sentencing score sheet, and that the trial court
abused its discretion in departing from the minimum sentence. For the reasons
explained below, we affirm on all issues.
A.
Murphy's Appeal
1.
Motionforjudgment ofacquittal
The provisions of section 847.0135, Florida Statutes (2011), under which the
State charged and prosecuted Murphy, state in pertinent part:
(3) CERTAIN USES OF COMPUTER SERVICES OR
DEVICES PROHIBITED.·-Any person who knowingly
uses a computer online service, Internet service, local
bulletin board service, or any other device capable of
electronic data storage or transmission to:
(b) Solicit, lure, or entice, or attempt to solicit, lure, or
entice a parent, legal guardian, or custodian of a child or
a person believed to be a parent, legal guardian, or
custodian of a child to consent to the participation of
such child in any act described in chapter 794, chapter
800, or chapter 827, or to otherwise engage in any sexual
conduct,
commits a felony of the third degree[.] . . .
(4) TRAVELING TO MEET A MINOR.--Any person
who travels any distance either within this state, to this
3
state, or from this state . . . for the purpose of engaging in
any illegal act described in chapter 794, chapter 800, or
chapter 827, or to otherwise engage in other unlawful
sexual conduct with a child or with another person
believed by the person to be a child after using a
computer online service, Internet service, local bulletin
board service, or any other device capable of electronic
data storage or transmission to:
(b) Solicit, lure, or entice, or attempt to solicit, lure, or
entice a parent, legal guardian, or custodian of a child or
a person believed to be a parent, legal guardian, or
custodian of a child to consent to the participation of
such child in any act described in chapter 794, chapter
800, or chapter 827, or to otherwise engage in any sexual
conduct,
commits a felony of the second degree[.]
Murphy asserts that the trial court erred by denying his motion for judgment of
acquittal because the State's evidence failed to establish he solicited, lured, or
enticed someone believed to be a parent to consent to his having sex with the
person's child.
"In reviewing a motion for judgment of acquittal, a de novo standard of
review applies. Generally, an appellate court will not reverse a conviction that is
supported by competent, substantial evidence. There is sufficient evidence to
sustain a conviction if, after viewing the evidence in the light most favorable to the
State, a rational trier of fact could find the existence of the elements of the crime
beyond a reasonable doubt." Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003)
(citations omitted).
4
At Murphy's trial, the State put on evidence showing that the Tallahassee
Police Department participated with the Internet Crimes Against Children Task
Force in conducting an online undercover operation intended to discover and
apprehend people seeking to sexually exploit children. Officer Russell Huston
placed an advertisement on craigslist with the tagline, "Need a discreet male for
young female - w4m (NE TLH)." The body of the ad read, "Contact me with a
face pic and I will provide details. Be serious and discreet!" and included an email
address.
Murphy, as well as others, responded to the ad.
The State's evidence
included the following email conversation between Murphy and Officer Huston,
which occurred over the course of approximately five hours:
MURPHY: Hey there just seeing if you were still
looking for a guy to meet up with if so hit
me back.
HUSTON: Hey man....she likes your pic...full
disclosure...Im her dad.....she is 14, almost
15. older looking for her age. She had a
bad first experience and looking for an
older, patient experienced guy to show her
how it should really be. I'm ju[s]t here to
make sure some serial killer doesn't come
over. Let me know if you're still interested
and tell me about yourself.
MURPHY: This has to be spam there's no way this is
real. If your real can I see a pic?
HUSTON: its real and we need to talk a bit before i
send you my 14 year old daughters pic
5
MURPHY: Wow Ok well what do you need to know?
HUSTON: If you're Ok with her age, tell me about
yourself. Id also like to show her your face
pic to see if she is interested.
MURPHY: Well I'm 22 im a massage therapist im
really down to earth and chill. I love music
and I love the outdoors.
HUSTON: do you have a plan about what you want to
show her?
MURPHY: Not really just make sure she has a good
time and not take advantage of her. I mean
what did you have in mind for her?
HUSTON: totally up to whoever comes over....but i
need someone who knows what they want..if
thats not you...no hard feelings
MURPHY: I mean I was goin to make love to her and
show her all guys aren't pieces of shit really
I mean that's what you want to show her
right I just don't want to overstep my
bounds ya know
HUSTON: well i think she would be ok with
that...would you take any steps not to hurt
her? she might be a little small for you
MURPHY: Of course I'm not trying to tear her up lol
HUSTON: and would you bring protection? last thing
need is for her to get pregnant and DCF
finding out?
MURPHY: Of course I'm not lookin to have a kid
either.
HUSTON: Ok great...can i show her your face pic?
MURPHY: Yea of course. U still have it right.
6
HUSTON: yeah...just wanted ur permission ..... are you
up for this tonight? we are still up
MURPHY: Yea that's fine
In the remaining exchanges, the men arranged for Murphy's arrival at the agreedupon location where he would have sex with the 14-year-old girl.
Murphy argues that this evidence fails to show solicitation, luring, or
enticement on his part in order to obtain the father's consent. Rather, he argues,
the evidence establishes that the father offered the teenage daughter for sex, and
that he accepted the offer; he did not need to further obtain consent. Considering
the evidence de novo, in the light most favorable to the State, we conclude the
above-quoted email communication was sufficient for the jury to f'md Murphy
solicited, lured, or enticed the father into letting him have sex with the 14-year-old
girl. The email messages between the men reflect Murphy's efforts to satisfy the
father's concerns and requirements for a "patient experienced guy"demonstrating himself to be the right man for the job-in order to obtain the
father's consent.
Murphy relies on Randall v. State, 919 So. 2d 695 (Fla. 4th DCA 2006), and
Stumpf v. State, 677 So. 2d 1298 (Fla. 5th DCA 1996), to argue that merely
describing what he intended to do to the girl did not constitute solicitation. Those
cases involved defendants charged with soliciting a minor to commit a lewd or
lascivious act. See § 800.04(6), Fla. Stat. The court in Randall held that the
7
defendant's statement to a minor saying he "wanted" to lick her vagina did not, as
a matter of law, constitute soliciting the minor to commit an unlawful act. Randall,
919 So. 2d at 697. Similarly, the court in Stumpfheld the defendant's statement to
a minor that he intended to perform oral sex on the child was a threat to make the
child a victim of a crime, but was not solicitation. Stumpf; 677 So. 2d 1298.
We find Randall and Stumpf inapposite. Murphy did not simply describe
what he intended to do, as did the defendants in those cases. He also described
himself ("Well I'm 22 im a massage therapist im really down to earth and chill. I
love music and I love the outdoors."), and responded to the father's concerns ("not
take advantage of her"; "show her all guys aren't pieces of shit"; "not trying to tear
her up"; "not trying to have a kid either"), soliciting the father's consent and trying
to close the deal.
Moreover, the statutory provisions under which Murphy was
charged proscribe "solicit[ing], lur[ing], or entic[ing] a parent . . . of a child or a
person believed to be a parent . . . to consent to" the child's participation in
prohibited sexual conduct. Even if we agreed with Murphy that his statements did
not rise to the level of solicitation, they decidedly constituted luring or enticing the
father into allowing his 14-year-old daughter to participate in unlawful sexual
activity. Finding the State's evidence sufficient to sustain Murphy's convictions,
we affirm the trial court's denial of Murphy's motion for judgment of acquittal.
8
2.
Objective entrapment
Florida recognizes two theories of defense based on entrapment: subjective
entrapment, codified in section 777.201, Florida Statutes, and objective
entrapment, definitively established in Munoz v. State, 629 So. 2d 90, 99 (Fla.
1993). Subjective entrapment focuses on whether conduct by law enforcement
induced, encouraged, or caused the defendant to commit a crime when he or she
was not predisposed to do so. See § 777.201, Fla. Stat.; Jones v. State, 114 So. 3d
1123, 1126 (Fla. 1st DCA 2013). Objective entrapment occurs when egregious law
enforcement conduct amounts to a violation of the defendant's right to due process
under article I, section 9, of the Florida Constitution. See Munoz, 629 So. 2d at 99;
Gennette v. State, No. 1D12-3407, slip op. at 9 n.5 (Fla. 1st DCA Sept. 13, 2013)
(describing objective entrapment as "government action [ ] so egregious that even
a predisposed defendant's due process rights are violated").
Murphy's claim of objective entrapment is not directed specifically to the
undercover investigative technique law enforcement employed here, in which
Officer Huston placed an advertisement in a section of craigslist akin to the
"Personals" in a newspaper, and pretended to be the father of a teenage girl looking
for a man to have sex with her. Rather, Murphy challenges, on general principle,
law enforcement's use of sex-i.e., creating the possibility of a sexual encounteras a lure. He argues that doing so preys on (what he describes as) the most
9
sensitive of human frailties-the primal urge for sex-and preys on sensitive
human emotions. Such law enforcement activity is egregious, he argues, and
constitutes objective entrapment.
"[D]efining the limits of due process is difficult because due process is not a
technical, fixed concept; rather, it is a general principle of law that prohibits
prosecutions brought about by methods offending one's sense ofjustice." Munoz,
629 So. 2d at 98. The Fifth District has provided a helpful guide for assessing
objective entrapment claims:
The defense of outrageous government conduct or
objective entrapment . . . requires reviewing the totality
of the circumstances "'in order to ascertain whether they
offend those canons of decency and fairness which
express the notions of justice of English-speaking
peoples even toward those charged with the most heinous
offenses.'" Rochin v. California, 342 U.S. 165, 169, 72
S.Ct. 205, 96 L.Ed. 183 (1952) (quoting Malinski v. New
York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 89 L.Ed. 1029
(U.S.1945)). Due process is violated when '"the conduct
of law enforcement agents is so outrageous that due
process principles would absolutely bar the
government from invoking judicial processes to
obtain a conviction.'" Tercero v. State, 963 So.2d 878,
883 (Fla. 4th DCA 2007)(quoting State v. Glosson, 462
So.2d 1082, 1084 (Fla.1985)). It is a balancing test; the
court must weigh the rights of the defendant against the
government's need to combat crime. McDonald v. State,
742 So.2d 830, 831 (Fla. 4th DCA 1999).
Bist v. State, 35 So. 3d 936, 939 (Fla. 5th DCA 2010) (emphasis added).2
2 Bist involved an undercover operation using adults to pose as minors in online
10
Law enforcement's use of sex to advance an investigation has been held so
egregious as to constitute a violation of due process, where the defendant was lured
into criminal activity after the undercover government agent purposely established
a sexual relationship with the defendant. See, e.g., Madera v. State, 943 So. 2d
960, 962 (Fla. 4th DCA 2006); Cwvy v. State, 876 So. 2d 29, 31 (Fla. 4th DCA
2004). But that sort of "preying" on human frailties and emotions is not present in
the instant case.
Here, law enforcement was specifically targeting child sex
predators, and we see nothing egregious or outrageous in undercover online
investigations, like the one conducted here, designed to apprehend people bent on
engaging in sexual activity with minors. To hold otherwise would be to tie the
hands of law enforcement in combating this type of sex-related crime. Murphy has
presented us no appellate court decision, or other persuasive authority, indicating
that the government conduct at issue here offends any societal canons of decency
and fairness. Accordingly, we reject his claim of objective entrapment.
chat rooms, and wait for adults to solicit them for sexual activity. The solicitors
were arrested upon arriving at a pre-arranged location where they expected to meet
the minors. Bist, 35 So. 3d at 938. The investigations and arrests were televised
nationally on the NBC network program, "Dateline." Id. Unlike the broad policy
argument Murphy advances here, the objective entrapment claim raised in Bist
went to specific law enforcement actions; i.e., the adult decoys were not law
enforcement officers, but were members of an organization called Perverted
Justice, which had a contingent fee arrangement with NBC. The Fifth District
found no outrageous conduct by law enforcement. Id. at 940-41.
11
3.
Double Jeopardy
"'The most familiar concept of the term "double jeopardy" is that the
Constitution prohibits subjecting a person to multiple prosecutions, convictions
and punishments for the same criminal offense.'"Partch v. State, 43 So. 3d 758,
759 (Fla. 1st DCA 2010) (quoting Valdes v. State, 3 So. 3d 1067, 1069 (Fla.
2009)); see also Amend. V, U.S. Const.; Art. 1, § 9, Fla. Const. Murphy contends
that double jeopardy principles prohibit his being punished both for soliciting a
person believed to be a parent to consent to unlawful sexual activity with a child
and for traveling to meet the minor after soliciting the person believed to be a
parent. This is so, he posits, because the offenses occurred within the same
criminal episode, the acts punished do not constitute distinct criminal acts, and the
elements of the solicitation offense are subsumed within the traveling offense.
We find no double jeopardy violation here because the Legislature expressly
intended to punish both acts. "[T]here is no constitutional prohibition against
multiple punishments 'if the Legislature intended separate convictions and
sentences for a defendant's single criminal act[.]'" Harris v. State, 111 So. 3d 922,
924 (Fla. 1st DCA 2013) (quoting Hayes, 803 So. 2d at 699). The crime of using
the Internet to solicit a person believed to .be a parent to consent to a child's
participation in unlawful sexual activity is defined in section 847.0135(3)(b), and is
designated a third degree felony. The crime of traveling to meet a minor after
12
using the Internet to solicit a person believed to be parent, as described above, is
separately established and defined in section 847.134(4)(b), and is designated a
second degree felony. In light of clear legislative intent to punish solicitation and
traveling after solicitation separately, we conclude Murphy's sentences for the two
crimes do not violate double jeopardy.3
B.
The State's Cross-Appeal
The State appeals the sentences imposed by the trial court-withheld
adjudications and concurrent terms of nine months in jail, followed by five years'
sex offender probation-which represent a significant downward departure from
the 42-month lowest permissible prison sentence yielded by Murphy's sentencing
score sheet.
Seeking remand for resentencing, the State argues there was no
competent, substantial evidence supporting the mitigating factors the trial court
relied on to depart from the score sheet sentence. The State further contends that,
even if the evidence does support the trial court's fmdings, the court nonetheless
abused its discretion in departing so substantially from the minimum score sheet
sentence.
Section 921.0026, Florida Statutes (2011), prohibits a downward departure
3 Having so concluded, we need not proceed further to conduct the analysis set
forth in Blockburger v. United States, 284 U.S. 299 (1932), and codified in section
775.021(4), Florida Statutes. See Gordon v. State, 780 So. 2d 17, 19-20 (Fla.
2001) (stating Blockburger "same elements" test is used "[a]bsent a clear
legislative intent to authorize separate punishments for two crimes").
13
from the lowest permissible sentence, unless the court finds mitigating
circumstances or factors that reasonably justify such departure. The statute lists
several factors a court may consider, including the two the trial court relied on in
this case:
that the victim was an initiator, willing participant, aggressor, or
provoker of the incident; and that the offense was committed in an unsophisticated
manner, and was an isolated incident for which the defendant has shown remorse.
See §§ 921.0026(2)(f), (j), Fla. Stat. (2011). The trial court's decision to impose a
downward departure sentence involves two steps, each of which is subject to
appellate review. The first step involves determining if there are valid grounds to
depart, and this decision "will be sustained on review if the court applied the right
rule of law and if competent substantial evidence supports its ruling." Banks v.
State, 732 So. 2d 1065, 1067 (Fla. 1999). The second step involves determining
whether to depart-a decision that takes into account the totality of circumstances,
and is reviewed for abuse of discretion. Id. at 1068.
We conclude the first factor the trial court relied on for departure is not
valid. "That the undercover officer was an initiator, willing participant, aggressor,
or provoker of the incident is not a proper ground in this case for downward
departure pursuant to section 921.0026(2)(f), Florida Statutes." State v. Holsey,
908 So. 2d 1159, 1161 (Fla. 1st DCA 2005); see also State v. Grant, 912 So. 2d
321, 322 (Fla. 2d DCA 2004) (holding that undercover officer involved in sting
14
operation was not victim of defendant's drug offense as to support downward
departure factor in section 921.0026(2)(f)).
However, there is competent, substantial evidence in the record to support
the departure factor in section 921.0026(2)(j). For this factor, there are three
elements:
1) the crime is committed in unsophisticated manner, 2) it was an
isolated incident, and 3) the defendant has shown remorse. See State v. Adkison,
56 So. 3d 880, 883 (Fla. 1st DCA 2011). The State specifically challenges the trial
court's finding that Murphy's crimes were 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 '"
State v. Walters, 12
So. 3d 298, 301 (Fla. 3d DCA 2009) (quoting Stafß7ey v. State, 826 So. 2d 509,
512-13 (Fla. 4th DCA 2002)) (emphasis in original). Here, Murphy used his
mobile phone to access craigslist online, answer an ad posted on the web site, and
communicate by email with Officer Huston. It was reasonable for the trial court to
conclude that such communication tools and modes are so ubiquitous today as to
no longer require any level of sophistication to use them.
Having determined there is evidentiary support for one mitigating factor
under section 921.0026(2), we consider whether the trial court abused its discretion
in imposing the downward departure sentence. Although we may disagree with the
degree of leniency in the sentence imposed, we cannot say with certainty that "no
15
reasonable person would agree with the trial court's decision" to impose a
downward departure sentence at all. Banks, 732 So. 2d at 1068. The record
demonstrates that the court considered all the circumstances in the case, including
not only the mitigating circumstances in section 921.0026(2), but also that Murphy
was 22 years of age at the time of the offenses and had no prior adult criminal
record, and the court fully explicated its reasons for showing leniency in
sentencing. Because reasonable minds could differ on whether the court should
have departed from the minimum prison term, there is no abuse of discretion.
Accordingly, we affirm Murphy's sentences.
AFFIRMED.
LEWIS, CJ., and OSTERHAUS, J., CONCUR.
16