Lead Opinion
Edwin Gennette appeals his conviction and sentence for one count of unlawful use of a two-way communications device to facilitate a felony, in violation of section 934.215, Florida Statutes. The conviction was based on Appellant’s plea of nolo con-tendere, entered after the trial court denied the defense’s motion to dismiss the charges.
As a preliminary matter, although not raised by the parties at the motion hearing or on appeal, we consider whether Appellant’s entrapment defense was even cognizable by the trial court on a pre-trial motion to dismiss. As the dissent notes, section 777.201(2), Florida Statutes requires a defendant to prove, “by a preponderance of the evidence that his or her criminal conduct occurred as а result of an entrapment.” The statute further provides: “The issue of entrapment shall be tried by the trier of fact.” The dissent correctly stresses that ordinarily, juries are the triers of fact, tasked with resolving conflicts in the evidence after weighing the credibility and reliability of documents, witnesses and other sources of evidence. However, no disputes of fact or conflicts in evidence were presented to the trial court on the motion to dismiss or argued by the parties on appeal. Where the factual cir
None of the critical factual circumstances of this case are in dispute. Section 934.214, Florida Statutes describes the elements of the offense of “Unlawful use of a two-way communications device” and Appellant did not contest the State’s allegations that he committed the acts described in that statute. The content and sequence of the govеrnment’s advertisement and ensuing e-mail chain were agreed upon by the parties, as was Appellant’s lack of any predisposition to commit any of the offenses charged.
On the merits of this appeal, “[w]e review de novo a trial court’s order on a motion to dismiss.” O’Leary v. State,
Appellant was charged as a result of a police operation intended to apprehend persons seeking illegal contact with minors. To this end, government agents published an on-line (Craigslist) advertisement for apparently legal activity with a fictitious adult or adults: “Sisters looking for a hot night — w4m—19 (Pcola/Des-tin/PC).” Testimony at the motion hearing confirmed that “w4m” meant female looking for male, and the number 19 was to indicate the advеrtiser’s age. The ad did not suggest illegal activity.
Appellant responded to the advertisement late on a Thursday night:
Appellant (11:24 p.m.): For real? nah, I don’t believe it, LOL can U prove me wrong? cute guy here, Trey
“Amber” (11:42 p.m.): Hi Trey! Let see how cute!!! My lil sis is in town visiting me for the summer. She is 14, you ok with that?
The next morning, Appellant continued his e-mail correspondence with the law enforcement agent posing as the 19-year-old “Amber” as follows:
Appellant (10:21 a.m.): well I think she is a bit young, lol but depends on what you have in mind before i send my pic, are there any age requirements? lmao well the hell with it, ill send a pic anyway me and my pet possum.
“Amber” (3:44 p.m.): Nice pic! Why in the world do you have a pet possum? There are no age requirements here.
Appellant (3:59 p.m.): Well thank you.... I found my lil-bear in my backyard when she was just a baby and ive raised her .... she’s so sрoiled and thinks shes a people, lol.now its your turn, lol.
The State maintained that Appellant’s response, in the third e-mail message of the chain, defeated his claim of entrapment because he readily accepted the government’s offer for sexual activity with a minor. To the contrary, Appellant’s e-mail shows only that he understood that a minor sister was visiting 19-year-old “Amber” for the summer. The agent’s quеstion of “you ok with that?” and Appellant’s response “she is a bit young ... but depends on what you have in mind ... are there any age requirements?” was equivocal. Neither the agent’s nor Appellant’s messages at this point contained any reference to sexual activity or performance with either “Amber” or the minor. The early messages are simply too vague to constitute an offer and acceptance for criminal conduct.
In the eighth e-mail message, the agent sent Appellant a photograph of two young women posing as the fictional adult female and the minor. The agent’s subsequent messages described the photo as showing a “fun” weekend and plans to “get into some fun.” Appellant described his weekend plans as watching a movie at home and caring for his pet opossum, who wаs recovering from veterinary surgery. In the seventeenth message, Appellant invited “u” to his home where “we could figure out something to do if you like,” to which the agent replied “we host only.” Appellant then lamented that “u” would be unable to meet his pet possum and inquired “if I was invited over, what would u have in mind?” The agent repeated “fun,” and inquired “what do you have in mind for us?” While the agent used the plural terms “us” and “we” in her e-mails, Aрpellant consistently responded with “u” and “you,” making his intentions ambiguous about whether he was still contemplating contact only with “Amber” (the adult, as originally advertised) at this point in the conversation.
Appellant’s e-mails at this point continued to discuss his pet opossum and contained no words or phrases that suggested any sexual activity with either “Amber” or her “sister” or in the “sister’s” presence. Appellant’s only reference to physical features were to his pet’s “female parts,” because the recovering animal had recently been spayed. He sent a photo of the opossum to “Amber” and suggested “a ride in my talking Mustang.” When Appellant described his current activity as “just cleaning house,” the agent again stated “we are looking to have fun tonight.” The twenty-seventh e-mail in the exchange, sent by Appellant the Friday night after his response to the Craigslist advertisement, stated “maybe you can twist my arm, lol, I have some things to do tomorrow am, and since you cant come here ... but I can be persuaded, lol.” Four more e-mails were exchanged and both of the agent’s messages inquired about what Ap
In the thirty-second e-mail, the agent tried to clarify the offer, stating “do u realize that its me and my lil sis.” Appellant responded: “im trying to keep things clean so to speak, lol until told otherwise, lmao but my car is fast, I can get somewhere pretty quick if needbe, just hope I don’t get a ticket.” The agent' continued to urge Appellant to provide details and assured him that “we like it dirty.” When Appellant’s responses continued to lack sexual content pertaining to the “minor,” the agent insisted that she needed details because “I need to prep her.” Appellant’s response “Prep her? what does that consist of?” shows that the agent’s offer including the minor is finally beginning to dawn on him. Appellant’s vague response caused the agent to demand in the fortieth message: “r u scared to talk about it[?]” Finally, in the forty-first messаge of the email chain, Appellant acknowledges the “underage sister,” asks “is that all consensual,” and the agent assures him that “everything is consensual.” The messages continued into the next day (Saturday). The agent responded to Appellant’s continued use of the singular, “you” by prompting him not to “leave out” the minor sister. From that point on, both the agent’s and Appellant’s messages increased in suggestivenеss, including suggestions of sexual activity including the minor.
The defense of entrapment has evolved under federal and Florida law as both crime and its detection have increased in sophistication. Beginning with the opinion in Sorrells v. United States,
In 1987, the Florida Legislature adopted section 777.201, Florida Statutes, codifying the entrapment defense in this state.
(1) A law enforcement officer ... perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces оr encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(emphasis added). The Florida Supreme Court has described the application of section 777.201 thusly: “The first question to be addressed under the subjective test is whether an agent of the government induced the accused to commit the offense charged. On this issue, the accused has the burden of proof and, pursuant to section 777.201, must establish this factor by a preponderance of the evidence.” Munoz v. State,
“Inducement” in the context of the entrapment defense has been defined as “persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.” State v. Henderson,
In the ease before us, the e-mail chain established, by a preponderance of evidence, that the govеrnment induced or encouraged Appellant, and due to his lack of predisposition, caused him by methods of persuasion to commit the offenses charged. As previously noted, the parties stipulated that Appellant was “a person other than one who is ready to commit” the offense. § 777.201(1), Fla. Stat. Throughout the e-mail chain, it was the agent who took the lead. It was the law enforcement agent who initially suggested the presence of a minor, though without any specific proposition of sexual or other criminal involvement between Appellant and the minor. When Appellant’s communications wandered to innocuous matters, it was the agent who repeatedly steered the conversation back to sexual activity with a minor. The agent redirected Appellant’s lack of focus оn the minor by introducing and promoting the idea of participation by the minor in sexual activity with Appellant. It was the agent who coaxed and cajoled Appellant for more details and challenged Appellant’s reluctance by impugning his nerve and suggesting he was “scared.” The agent’s persistent urging to overcome Appellant’s obvious reluctance to commit or even describe illegal аctivity in his e-mail messages easily fits the statutory definition of entrapment— “induces or encourages” and “as a direct result, causes” Appellant’s eventual unlawful communications — as set out in section 777.201, Florida Statutes. The definitions of “induces” and “encourages,” including “instigation,” “persuasion,” “harassment,” “urging,” “spurring on,” and “incitement to action” all apply to the progression of
Because the preponderance of the evidence, as set out in the e-mail messages, showed the law enforcement officer’s methods of persuasion induced or encouraged, and as a direct result caused Appellant’s unlawful communications, the legal definition of entrapment set out in section 777.201, Florida Statutes was met and the motion to dismiss should have been granted. The law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime.
The conviction and sentenсe are REVERSED and this cause REMANDED for DISMISSAL of the charges.
Notes
. Appellant was originally charged with three additional felonies, but upon his plea to the communications device offense, the State nolle prossed the other three counts.
. Like the defendant in Farley v. State,
. Apparently this type of general advertisement is a common practice by law enforcement agents, who later suggest illegal activity to those who respond to the ad. See Morgan v. State,
Unlike circumstances where the suspect is communicating with a person believed to be a minor, Morgan responded to an advertisement for a casual encounter with an adult female. When the law enforcement officer interjected the prospect of including a minor, Morgan expressed reservations and was equivocal in his responses. We recognize that most within our society would immediately terminаte the conversation at the mention of the involvement of a minor, and perhaps the jury will reject the defense. However, there is at least some evidence with which the defense could suggest that Morgan was entrapped.
Morgan v. State,
. Cruz v. State,
. While an entrapment defense where government action is so egregious that even a predisposed defendant’s due process rights are violated ("objective” entrapment) has survived the passage of section 777.201, Florida Statutes, no such predisposition of the defendant or egregious government action is at issue in this case. See Munoz v. State,
. Merriam-Webster, m-w.com, http://www. merriam-webster.com/dictionary/encouraged? show=0 & t= 1374525505 (last visited July 23, 2013). The "encourage” entry also lists "assure,” "reassure,” and "provoke” as related words. Id.
Dissenting Opinion
dissenting.
I respectfully dissent and would affirm the trial court’s decision tо deny Appellant’s motion to dismiss.
In Munoz v. State, the Florida Supreme Court said that trial judges may resolve the issue of entrapment as a matter of law in a motion to dismiss where two conditions prevail: “when the evidence is not conflicting and factual circumstances are not in dispute.”
Appellant’s entrapment defense asserts a particular interpretation of the evidence to resolve the key question of whether he decided for himself — -versus whether law enforcement directly caused him — tо engage in the unlawful conduct. See § 777.201(1), Fla. Stat. (2011) (recognizing entrapment if law enforcement “induces or encourages and, as a direct result, causes another person to engage in [unlawful] conduct”). Appellant makes a reasonable argument for blaming his conduct on government inducement. And, in fact, the majority sees the evidence his way.
The problem is, however, that Appellant’s perspeсtive is not the only reasonable way of interpreting the evidence. The state has posited an alternate, but perfectly reasonable, interpretation of the facts that places responsibility for Appellant’s conduct on Appellant himself. From the state’s perspective “Appellant failed to establish by a preponderance of the evidence that he was induced by law enforcement to commit the offense.” Compounding the force of the state’s view of the evidence at this juncture is that all questions and inferences from the facts must be resolved in its favor. See, e.g., Parks v. State,
Furthermore, letting a jury resolve the issue of what precipitated Appellant’s unlawful conduct would closely comport with the statute. § 777.201(2), Fla. Stat. (2012) (“The issue of entrapment shall be tried by the trier of fact”). It would also be consistent with how other courts have handled entrapment cases with mixed evidence. See, e.g., Jackson v. State,
For these reasons, I think the trial judge correctly denied the motion to dismiss and kept this case on track for the trier of fact to resolve whether government inducement caused Appellant’s conduct.