Mizner v. State, 2D13–1917.

• Decision Date: 03 December 2014
• Docket Number: No. 2D13–1917.,2D13–1917.
• Parties: Stephen MIZNER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

154 So.3d 391

Stephen MIZNER, Appellant

v.STATE of Florida, Appellee.

No. 2D13–1917.

District Court of Appeal of Florida, Second District.

Dec. 3, 2014.

Howard L. Dimmig, II, Public Defender and Stephen M. Grogoza, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.

Opinion

WALLACE, Judge.

Upon the court's own motion,

IT IS ORDERED that the opinion dated July 30, 2014, is withdrawn, and the attached opinion is substituted therefore.

On its own motion, the court withdraws its opinion of July 30, 2014, and substitutes the following opinion in its place. The opinion is unchanged substantively except that we substitute the following language for the last two sentences of our original opinion: We affirm the judgment imposed with regard to Count 2, traveling to meet a minor, and we vacate Mr. Mizner's sentence for Count 2. Because Mr. Mizner's conviction for attempt to commit sexual battery by a person eighteen years of age or older upon a child less than twelve years of age was the primary offense on Mr. Mizner's scoresheet, he is entitled to resentencing with a corrected scoresheet on his remaining conviction for traveling to meet a minor. See Vroom v. State, 48 So.3d 82, 84 (Fla. 2d DCA 2010). We also certify conflict with Murphy.

A jury found Stephen Mizner guilty of multiple offenses arising from his entanglement in a “sexual mentor” sting operation that was initiated by law enforcement officers on the Internet. Mr. Mizner appeals his judgment and sentences, raising multiple issues. Finding merit in some of his arguments and rejecting others, we affirm in part and reverse in part.

I. THE FACTS

On November 1, 2011, a special agent employed by the Florida Department of Law Enforcement (the FDLE Agent) was assigned to the Department's cybercrime squad operating out of the Tampa region. On that day, the FDLE Agent began an undercover online operation with the Hardee County Sheriff's Office designed “to identify individuals who may be online seeking to sexually exploit children.” The FDLE Agent and the other officers set up a “sexual mentor” sting operation. In this type of operation, a law enforcement officer places an online advertisement in which the officer pretends to be an older relative—usually but not always a mother—soliciting a man to “teach” the older relative's minor relation about sex.¹

A fictitious, online persona known as “Cindy Hawkins”—created by the FDLE Agent—was an integral part of the undercover operation. The fictitious “Cindy” was thirty-five years old and single. She lived in Zolfo Springs with her ten-year-old daughter, “Sabrina.” Like her mother, “Sabrina” was fictitious, a product of the FDLE Agent's imagination. As part of their investigation, the FDLE Agent and other law enforcement officers had established an actual “undercover residence” in Zolfo Springs to which targets of the sting operation might travel for the purpose of a sexual encounter with a minor and then be arrested.

The FDLE Agent began the sting operation on November 1 at 2:07 p.m. by placing an online advertisement in the “casual encounters” subsection of the personals section of the Sarasota Craigslist. The ad began as follows: “Single Mom Looking for Family Fun—w4m–35 (Zolfo Springs, FL).” The FDLE Agent explained at trial that “w4m” indicated that the ad was placed by a woman looking for a man. The reference to “35” denoted “Cindy's” age; “Zolfo Springs” was her place of residence. The ad continued: “I am single mom with a 10yo daughter and we are both nudists. We are seeking family fun. Must be discreet and DD. Email if interested.” The FDLE Agent explained further that “DD” typically meant “disease and drug free,” but that it could also mean “discreet and actually drug free.” The ad was signed, “Cindy,” and once again designated her location as in Zolfo Springs.

On the day that the ad appeared, Mr. Mizner had reached a low point in his life. He was forty-one years old. Mr. Mizner had previously lived and worked in another state. He had recently moved to Sarasota after the breakup of a relationship with a woman that had lasted approximately fifteen years. Although Mr. Mizner had not been married, he and his former partner had two daughters. When Mr. Mizner moved to Florida, his daughters had remained with their mother. Mr. Mizner was unable to find employment in Sarasota, and he was living at the home of a relative. In addition, Mr. Mizner did not own a vehicle, and he lacked the means for his own transportation. He had begun to drink heavily. Despite the personal problems that Mr. Mizner had experienced after his relocation to Florida, he had no prior history of pedophilia or of involvement with child pornography. In fact, he had no prior criminal history except a conviction for driving under the influence that was more than ten years old.

Fifteen minutes after the FDLE Agent placed the personal ad on Craigslist, Mr. Mizner responded as follows by e-mail: “Hello cindy ... how are you ... i am interested ... i like hanging out nude.” The FDLE Agent's initial reply as “Cindy” inquired about Mr. Mizner's interest in “family fun with my daughter and I.” (Emphasis added.) After a few e-mail exchanges, Mr. Mizner and “Cindy” began a lengthy series of communications over a period from November 1 through November 3. At the beginning of these exchanges, “Cindy” inquired if Mr. Mizner would be willing to act as a sexual mentor for the ten-year-old “Sabrina.” Although Mr. Mizner's initial expression of interest was directed to the thirty-five-year-old “Cindy,” he readily agreed to her proposal that he act as a sexual mentor for “Sabrina.” The FDLE Agent also arranged for a female Sarasota County Sheriff's detective (the Detective) to have two controlled telephone conversations with Mr. Mizner during which the Detective played the role of “Cindy.” Throughout the lengthy series of communications by various means that followed, the FDLE Agent and the Detective linked a relationship with the thirty-five-year-old “Cindy” to Mr. Mizner's willingness to accede to “Cindy's” insistence on finding a man who would teach her ten-year-old daughter about sex.

The tactical goal of the sting operation was to have the targets travel to the undercover residence in Zolfo Springs, prepared to have sexual intercourse with “Sabrina.” Upon arrival, the unsuspecting targets could be arrested for various offenses, including attempted sexual battery on a minor less than twelve years of age. However, Mr. Mizner lived in Sarasota, and he did not own a vehicle. For this reason, “Cindy” agreed to drive to Sarasota and to meet Mr. Mizner at a fast food restaurant located on Clark Road in Sarasota, at an exit just off of Interstate 75. The time and date for the initial meeting were set at 10:30 a.m. on Friday, November 4. “Cindy” and Mr. Mizner were to have lunch at the restaurant and get acquainted. If all went well, “Cindy” was to drive Mr. Mizner approximately sixty miles from Clark Road in Sarasota to her home in Zolfo Springs. There, Mr. Mizner and “Cindy” would spend time together until they could pick up “Sabrina” from school. If all went well, Mr. Mizner planned to spend the weekend in Zolfo Springs with “Cindy” and “Sabrina.”

Mr. Mizner was waiting at the fast food restaurant at 10:30 a.m. when the Detective, who was playing the role of “Cindy,” arrived in her unmarked vehicle. Before going to the restaurant, Mr. Mizner had stopped at a convenience store and purchased a box of candy for “Sabrina” and two boxes of condoms in accordance with “Cindy's” previous instructions. Mr. Mizner got into the Detective's vehicle and requested a hug from the Detective, whom he believed to be “Cindy.” The Detective complied and hugged Mr. Mizner. At approximately 10:35 a.m., law enforcement officers stationed nearby moved in, pulled Mr. Mizner from the car, and arrested him in the restaurant's parking lot. In order that Mr. Mizner would not immediately realize that the Detective was actually a law enforcement officer playing the role of “Cindy,” the officers went through the motions of placing her under arrest as well.

After Mr. Mizner was in custody, a deputy employed by the Sarasota County Sheriff's Department (the Deputy) interviewed him at the sheriff's office. At this point, Mr. Mizner did not realize that Cindy and Sabrina were fictitious persons. However, he did suspect that the Detective, whom he still believed to be “Cindy,” was actually a detective operating undercover. When the Deputy inquired of Mr. Mizner concerning whether he actually intended to assist “Cindy” by having sexual intercourse with “Sabrina,” he responded, “There's no way I would have been able to go through with it. No way. I have a conscience. I have daughters.” Captivated by “Cindy's” convincing online and telephonic persona, Mr. Mizner said that he “wanted to go in [to the restaurant], you know, and meet her and just talk to her and, you know, get a vibe, like you would on a blind date.” Mr. Mizner's post-arrest interview suggests that he was more interested in developing a relationship with the thirty-five-year-old “Cindy” than he was with her ten-year-old daughter. Unfortunately for him, Mr. Mizner's instant messages and telephone conversations with “Cindy” do not display a similar reluctance to participate in sexual behavior with “Sabrina.” In fact, Mr. Mizner's communications to “Cindy” explicitly discuss proposed sexual behavior involving him, “Cindy,” and “Sabrina.”

II. THE PROCEDURAL BACKGROUND

The State filed an information against Mr. Mizner charging him with four offenses: Count 1, soliciting a parent to consent to sex with a minor in violation of section 847.0135(3)(b), Florida Statutes (2011), a third-degree felony; Count 2, traveling to meet a minor in violation of section 847.0135(4)(b), a second-degree felony; Count 3, unlawful use of a two-way communications...