Duclos-Lasnier v. State, No. 2D14–2415.

CourtCourt of Appeal of Florida (US)
Writing for the CourtSLEET, Judge.
Citation192 So.3d 1234
Parties Pierre Ludovic DUCLOS–LASNIER, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 2D14–2415.
Decision Date27 May 2016

192 So.3d 1234

Pierre Ludovic DUCLOS–LASNIER, Appellant,
v.
STATE of Florida, Appellee.

No. 2D14–2415.

District Court of Appeal of Florida, Second District.

May 27, 2016.


N. Adam Tebrugge of Tebrugge Legal, Bradenton, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Susan M. Shanahan and Jason M. Miller, Assistant Attorneys General, Tampa, for Appellee.

BY ORDER OF THE COURT:

Appellant's motion for rehearing is granted. The prior opinion dated April 1, 2016, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

SLEET, Judge.

Pierre Duclos–Lasnier challenges his convictions and sentences for use of a computer to seduce, solicit, or entice a child to commit a sex act (count one); traveling to seduce, solicit, or entice a child to commit a sex act (count two); attempted lewd or lascivious battery on a victim twelve years old or older but younger than sixteen

192 So.3d 1237

(count three); and two counts of transmission of an image harmful to a minor (counts four and five). We affirm his convictions and sentences in counts two through five for the reasons discussed herein but vacate his conviction and sentence in count one because it violates the prohibition against double jeopardy.

Duclos–Lasnier met the female victim, L.S., at a public tennis court when her godmother approached him and inquired about tennis lessons for the victim. During their conversation, Duclos–Lasnier asked L.S.'s godmother how old L.S. was, and the godmother responded that L.S. was thirteen years old. Sometime after this meeting, Duclos–Lasnier obtained L.S.'s phone number and started sending her text messages that were sexual in nature. After a couple of weeks, Duclos–Lasnier and L.S. mutually decided to end the texting relationship, and at Duclos–Lasnier's request, L.S. deleted from her cellular phone the text messages he had sent her. However, she told a friend about the texting, and the matter ultimately came to the attention of the Manatee County Sheriff's Office. As part of the Sheriff's investigation, deputies were able to recapture some of the texts that L.S. previously had deleted from her phone. The texts included a picture of a male's clothed groin area with a male's hand down the front of the pants and a photo of a male's naked penis. The wording of the texts indicated that these photos were of Duclos–Lasnier.

Eventually, a sheriff's deputy took possession of L.S.'s phone and, pretending to be L.S., began texting Duclos–Lasnier. Through this text messaging, the deputy set up a meeting with Duclos–Lanier at a coffee shop with the stated purpose of Duclos–Lanier and the victim ultimately engaging in sex. In the same text message, the deputy requested a picture of Duclos–Lasnier's penis, and Duclos–Lasnier obliged by texting a photo of his erect penis. When Duclos–Lasnier arrived at the coffee shop, he was arrested.

Prior to trial, Duclos–Lasnier filed two motions to dismiss in which he challenged counts three, four, and five. Following a hearing, the trial court denied both motions. Duclos–Lasnier then entered open guilty pleas to all the charged offenses, reserving his right to appeal the denials of his dispositive motions to dismiss. The trial court sentenced him to 71.1 months' imprisonment on each of counts one, three, four, and five and to seventy-two months' imprisonment followed by four years' sex offender probation on count two; all sentences are to be served concurrently.

Duclos–Lasnier first argues on appeal that the trial court erred in denying his motions to dismiss as they related to count three. In his first motion to dismiss, he argued that the charge of attempted lewd or lascivious battery on a child twelve or older but younger than sixteen should be dismissed because the State could never establish the victim's age to be between twelve and sixteen due to the fact that when Duclos–Lasnier arranged to meet the victim he was actually texting an adult sheriff's deputy. See § 800.04(4)(a), Fla. Stat. (2012).

However, “Florida has not adopted the defense of legal impossibility. Therefore, the issue is not the legal impossibility of the offense[ ] but whether [the appellant] possessed the requisite intent and committed sufficient overt acts to effectuate that intent.” Hudson v. State, 745 So.2d 997, 1000–01 (Fla. 2d DCA 1999) (citation omitted). Furthermore, Duclos–Lasnier exchanged text messages with a phone number he knew to belong to a thirteen-year-old girl. Those messages included a picture of his naked penis sent from his phone and an agreement to meet

192 So.3d 1238

at an arranged location for the stated purpose of ultimately engaging in sex. Duclos–Lasnier then arrived at the arranged location prepared to have sex with a minor. Even though he was actually communicating with a police officer portraying himself as a thirteen-year-old girl, every reasonable inference indicates that Duclos–Lasnier attempted to meet a thirteen-year-old girl in order to have sex with her; he clearly was not trying to meet an adult police officer. See generally § 800.04(d), Fla. Stat. (2012) (defining “victim” as “a person upon whom an offense described in this section was committed or attempted or a person who has reported a violation of this section to a law enforcement officer” (emphasis added)).

Duclos–Lasnier also sought the dismissal of count three by arguing that the State could not establish the attempt because it could not show that he had committed an overt act toward the completion of the crime. “Criminal attempt requires three elements: the intent to commit a crime, an overt act towards its commission, and failure to successfully complete the crime.” Bist v. State, 35 So.3d 936, 941 (Fla. 5th DCA 2010). In determining whether a...

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4 practice notes
  • Byun v. State, Case No. 2D17-3838
    • United States
    • Florida District Court of Appeals
    • March 6, 2019
    ...a. someone prevented [him] [her] from committing the crime of (crime attempted) ... [or] b. [he] [she] failed"); Duclos-Lasnier v. State, 192 So.3d 1234, 1238 (Fla. 2d DCA 2016) (stating that attempt has three elements, one of which being that the defendant failed to successfully complete t......
  • Weitz v. State, Case No. 2D18-72
    • United States
    • Court of Appeal of Florida (US)
    • May 31, 2019
    ...emails, instant messages, and text messages, see Simmons v. State, 944 So. 2d 317, 325 & n.7, 329 (Fla. 2006) ; Duclos-Lasnier v. State, 192 So. 3d 1234, 1239-41 (Fla. 2d DCA 2016) —necessarily involves the use of a "two-way communications device." We do so based on section 934.215 itself, ......
  • Weitz v. State, Case No. 2D16–4703
    • United States
    • Court of Appeal of Florida (US)
    • October 25, 2017
    ...held that the term electronic mail embraces text messages and so would apply to Mr. Weitz's conduct here, see Duclos–Lasnier v. State, 192 So.3d 1234, 1239 (Fla. 2d DCA 2016), it is arguable that the term "electronic mail" does not subsume the term "two-way communications device" such that ......
  • Furlow v. State, Case No. 2D15–1565
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 2018
    ...supported a conviction for transmission of material harmful to a minor under section 847.0138(2). See, e.g., Duclos–Lasnier v. State, 192 So.3d 1234, 1240 (Fla. 2d DCA 2016) ; Simmons v. State, 886 So.2d 399, 403 (Fla. 1st DCA 2004) (explaining that section 847.0138 "pertains to harmful ima......
4 cases
  • Byun v. State, Case No. 2D17-3838
    • United States
    • Florida District Court of Appeals
    • March 6, 2019
    ...prevented [him] [her] from committing the crime of (crime attempted) ... [or] b. [he] [she] failed"); Duclos-Lasnier v. State, 192 So.3d 1234, 1238 (Fla. 2d DCA 2016) (stating that attempt has three elements, one of which being that the defendant failed to successfully complete the cri......
  • Weitz v. State, Case No. 2D18-72
    • United States
    • Court of Appeal of Florida (US)
    • May 31, 2019
    ...instant messages, and text messages, see Simmons v. State, 944 So. 2d 317, 325 & n.7, 329 (Fla. 2006) ; Duclos-Lasnier v. State, 192 So. 3d 1234, 1239-41 (Fla. 2d DCA 2016) —necessarily involves the use of a "two-way communications device." We do so based on section 934.215 it......
  • Weitz v. State, Case No. 2D16–4703
    • United States
    • Court of Appeal of Florida (US)
    • October 25, 2017
    ...held that the term electronic mail embraces text messages and so would apply to Mr. Weitz's conduct here, see Duclos–Lasnier v. State, 192 So.3d 1234, 1239 (Fla. 2d DCA 2016), it is arguable that the term "electronic mail" does not subsume the term "two-way communications dev......
  • Furlow v. State, Case No. 2D15–1565
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 2018
    ...supported a conviction for transmission of material harmful to a minor under section 847.0138(2). See, e.g., Duclos–Lasnier v. State, 192 So.3d 1234, 1240 (Fla. 2d DCA 2016) ; Simmons v. State, 886 So.2d 399, 403 (Fla. 1st DCA 2004) (explaining that section 847.0138 "pertains to harmfu......

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