Morgan v. State

• Decision Date: 03 May 2013
• Docket Number: No. 5D11–3421.,5D11–3421.
• Parties: Justin Timothy MORGAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

112 So.3d 122

Justin Timothy MORGAN, Appellant,
v.
STATE of Florida, Appellee.

No. 5D11–3421.

District Court of Appeal of Florida,
Fifth District.

May 3, 2013.

[112 So.3d 123]

Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, and Fritz J. Scheller and Lydia R. Pittaway of Fritz Scheller, P.L., Orlando, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Justin Timothy Morgan appeals from his conviction of attempted lewd or lascivious exhibition following a jury trial. This case arose from a Craigslist advertisement posted by a detective with the Citrus County Sheriff's Office. The advertisement, placed in the “casual encounters” section of the website, was entitled “Opened Minded Mom looking to share intimate fun—w4m—38,” signifying a thirty-eight-year-old woman was looking for a man. The body of the advertisement stated: “Open Minded Mom looking to share intimate family fun.”

Morgan responded to the detective's advertisement, whereupon the detective added a fictional twelve-year-old “daughter” into the equation. Morgan repeatedly expressed reservations about the daughter but did not terminate the dialogue. He indicated his desire to be intimate with the “mother” and kept hedging as to any involvement with the daughter, suggesting he wanted to start with the mother and see where it went from there and stating that the daughter could watch or participate if he felt it safe. At no time did Morgan agree to a sexual encounter with the daughter. Upon arrival at a location set up for the sting operation, Morgan was arrested.

In a four-count amended information, Morgan was charged with knowingly using a computer to lure the parent of a child to consent to the participation of that child in illegal sexual conduct,¹ traveling to meet a minor for illegal sexual conduct,² attempted lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age,³ and attempted lewd or lascivious exhibition.⁴

[112 So.3d 124]

At trial, Morgan testified that he had only one sexual encounter before, which took place when he was eighteen with an older woman, and that he had never had sex with anyone from Craigslist.⁵ On the night in question, he responded to multiple advertisements in an effort to have a casual sexual encounter, and the detective was the only person who replied.⁶ Morgan noted that the advertisement's title did not mention a child and asserted that the detective first proposed the idea that he be intimate—what he understood to mean having a sexual encounter—with the imaginary daughter. He disavowed any intention of having a sexual encounter with the child.

The jury found Morgan not guilty as to the first three counts, but guilty as charged on the attempted lewd or lascivious exhibition count. Morgan raises a series of issues on appeal, only two of which merit discussion. The first issue concerns the trial court's denial of Morgan's request for a jury instruction on his theory of defense—entrapment. Because the denial of that instruction under the facts and circumstances of this case was error, we reverse.

A trial court's decision to give or withhold a requested jury instruction is reviewed for an abuse of discretion. Worley v. State, 848 So.2d 491, 491–92 (Fla. 5th DCA 2003). In criminal proceedings, however, that discretion is circumscribed by the defendant's right to have the jury instructed on the theory of a valid defense. Id. at 492;Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998). The threshold for the giving of an instruction on a legally permissible theory of defense is low. To warrant the giving of such an instruction in a case where entrapment is being argued, the defense must show some evidence which suggests the possibility of entrapment. Once this threshold is met, regardless of how weak or improbable the evidence may be, the defense is entitled to the instruction. See Terwilliger v. State, 535 So.2d 346, 347 (Fla. 1st DCA 1988) (“It is not necessary that the defendant convince the trial judge of the merits of the entrapment defense because the trial judge may not weigh the evidence before him in determining whether the instruction is appropriate; it is enough if the defense is suggested by the evidence presented.”).

In denying the proposed standard entrapment instruction, the trial court effectively ruled that entrapment was not an available defense as a matter of law. The supreme court, in Munoz v. State, 629 So.2d 90 (Fla.1993), examined what was then a new legislative codification of the entrapment defense. In upholding section 777.201, Florida Statutes, against the argument that it violated...