Gennette v. State

• Decision Date: 23 October 2013
• Docket Number: No. 1D12–3407.,1D12–3407.
• Citation: 124 So.3d 273
• Parties: Edwin E. GENNETTE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

124 So.3d 273

Edwin E. GENNETTE, Appellant,

v.STATE of Florida, Appellee.

No. 1D12–3407.

District Court of Appeal of Florida,

First District.

Sept. 13, 2013.

Rehearing Denied Oct. 23, 2013.

Nancy A. Daniels, Public Defender, Courtenay H. Miller, Assistant Public Defender, Tallahassee, and John Knowles, Assistant Public Defender, Pensacola, for Appellant.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Monique Rolla, Assistant Attorney General, Tallahassee, for Appellee.

CLARK, J.

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 contendere, entered after the trial court denied the defense's motion to dismiss the charges.¹ Appellant's plea reserved his right to appeal the denial of the motion to dismiss. In his motion, Mr. Gennette argued that his conduct was the product of entrapment by the government, as defined by section 777.201, Florida Statutes, and that he was thus entitled to dismissal as a matter of law. We agree, reverse the denial of the motion to dismiss and the resulting conviction and sentence, and remand to the trial court with instructions to dismiss the charge.

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 a 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 circumstancesof the case are not in dispute, the trial judge has authority to rule on entrapment as matter of law. Munoz v. State, 629 So.2d 90, 99 (Fla.1993); see also State v. Ramos, 632 So.2d 1078 (Fla. 3d DCA 1994) (although section 777.201(2) provides that issue of entrapment shall be submitted to trier of fact, determination of whether defendant was entrapped may be determined as a matter of law when factual issues not in dispute).

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 government'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.² The trial court's denial of the motion to dismiss was not based on any resolution of conflicts in the documents or testimony presented by the defense, but was the result of the court's application of the terms of section 777.201, Florida Statutes to the undisputed evidence. The State's disagreement with the defense's assertion that the facts established entrapment under the statute did not create a dispute of fact. Accordingly, the trial court correctly considered, on the motion to dismiss, whether the critical facts presented by the defense constituted entrapment under the language of section 777.201.

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, 109 So.3d 874, 876 (Fla. 1st DCA 2013).

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/Destin/PC).” Testimony at the motion hearing confirmed that “w4m” meant female looking for male, and the number 19 was to indicate the advertiser's age. The ad did not suggest illegal activity.³

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 spoiled 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 question 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 was 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, Appellant 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 Appellantwanted “to do with us.” Appellant's responses remained ambivalent about any particular activity with either female.

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 message of the e-mail 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 suggestiveness, 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, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the courts have consistently recognized a policy disapproving use of the...