McCann v. State

• Decision Date: 27 May 1998
• Docket Number: No. 96-3596,96-3596
• Citation: 711 So.2d 1290
• Parties: 23 Fla. L. Weekly D1293 William McCANN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1290

711 So.2d 1290

23 Fla. L. Weekly D1293

William McCANN, Appellant, v. STATE of Florida, Appellee.

No. 96-3596.

District Court of Appeal of Florida Fourth District.

May 27, 1998

Rehearing Denied July 6, 1998.

Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

OWEN, WILLIAM C., Jr., Senior Judge.

We affirm appellant's conviction of attempting to procure a person under the age of eighteen for prostitution, but remand for correction of the judgment. Of the several issues raised on appeal, we discuss two: the sufficiency of the evidence concerning appellant's identity as the perpetrator, and the constitutionality of section 796.03, Florida Statutes, (1993).

Appellant contends that the evidence was legally insufficient to identify him as the perpetrator of the offense. The evidence relevant to that issue is stated briefly as follows: Around 8:30 A.M., on February 23, 1994, Early Hylow, age 13, and her three stepsisters were walking to school when a maroon car driven by a white male drove slowly past them several times. Eventually, the car stopped opposite the children and the driver offered Early $50 "to be my sex toy." She looked at the man and told him to keep going. The driver of the car persisted, telling her to "come get in the car." After he got out and tried unsuccessfully to force Early into the car, the man drove off. Early asked one of her stepsisters to write down the license tag number as she read it aloud. Mrs. Jones, taking her own child to school, had driven past a few moments earlier and had become suspicious upon seeing the man talking to the children. After she left her child at school, Mrs. Jones drove slowly back past where the maroon car was stopped so she could get another look at the male driver. Mrs. Jones continued to the end of the block, turned around and came back just as the maroon car was driving away. When the children told her what had happened, she took the four girls to their elementary school and told them to tell the principal. They gave the tag number to Mrs. Jones, and within a few minutes thereafter she again saw the same car. She confirmed the number and gave it to the police. They were able to trace the tag to an automobile which was registered to appellant and which matched the description given by Mrs. Jones and the children. When taken into custody appellant denied any involvement with the children but admitted that he had been in his car in the vicinity around 8:30 A.M., looking to pick up a prostitute.

It is true that none of the four children ever identified appellant as the culprit, and in fact their verbal out of court description of the individual as having "long blonde hair in a pony-tail and rotten teeth" did not match appellant's appearance. However, Mrs. Jones identified appellant, both in photos and in court, two and one-half years after the incident, as the driver of the maroon car whom she had seen talking to Early and her stepsisters as described above.

The test for sufficiency of the evidence is whether "a rational trier of fact could have found proof of guilt beyond a reasonable doubt." Coley v. State, 616 So.2d 1017 (Fla. 3d DCA 1993), citing Melendez v. State, 498 So.2d 1258, 1261 (Fla.1986). This inquiry does not require a court to ascertain whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. See id. at 1018, citing Jackson v. Virginia, 443 U.S. 307, 315, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence in the present matter meets that test.

Appellant also contends that section 796.03, Florida Statutes (1993) ¹ is unconstitutionally vague in that it fails to describe with certainty the conduct which is prohibited, specifically, it does not define the word "procure". Defendant thus argues that since the term "procure" is not defined he had no way of knowing which of the several definitions of "procure" the legislature was prohibiting. Our supreme court recently reiterated that "if reasonably possible and consistent with constitutional rights, [courts] should interpret statutes in such a manner as to uphold their constitutionality." State v. Mitro, 700 So.2d 643, 645 (Fla.1997) (not cited). "A statute will withstand constitutional scrutiny under a void-for-vagueness challenge if it is specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct." Trushin v. State, 425 So.2d 1126, 1130 (Fla.1982); see Mitro, 700 So.2d 643; State v. Conforti, 688 So.2d 350 (Fla. 4th DCA), review denied, 697 So.2d 509 (Fla.1997). A statute must be written in language which is relevant to today's society. See Warren v. State, 572 So.2d 1376 (Fla.1991). However, a statue need not be "a paradigm of legislative drafting" to be valid. See Jennings v. State, 667 So.2d 442 (Fla. 1st DCA), approved, 682 So.2d 144 (Fla.1996). The legislature's failure to define a statutory term does not in and of itself render the statute unconstitutionally vague. See Mitro at 645. It is not the role of the courts to imagine odd scenarios that might test limits of a statute, but rather, courts should read the language of the statute from the perspective of a "normal reader." See Johnson v. State, 701 So.2d 367 (Fla. 2d DCA 1997). Undefined words are construed in their plain and ordinary sense. See Mitro. Courts may refer to a dictionary to ascertain the plain meaning intended by the term. See L.B. v. State, 700 So.2d 370 (Fla.1997).

Webster's New World Dictionary of the American Language (2d College Edition 1978) defines "procure" as:

To get or bring about by some effort; obtain; to obtain women for the purpose of prostitution.

Webster's defines "procurer" as:

A person who procures; a man who obtains women for the purpose of prostitution; pimp.

Black's Law Dictionary (6th ed.1990) defines "procure" as:

To initiate a proceeding; to cause a thing to be done; to instigate; to contrive; bring about; effect, or cause. To persuade, induce, prevail upon, or cause a person to do something. To obtain, as a prostitute, for another. Procure connotes action and means to cause, acquire, gain, get, obtain, bring about, cause to be done. (...