Roy v. State
| Decision Date | 16 August 2019 |
| Docket Number | Case No. 5D18-1711 |
| Citation | 279 So.3d 238 (Mem) |
| Parties | Benjerman D. ROY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
AFFIRMED.
EISNAUGLE, J., concurs specially, with opinion.
I agree that Appellant's judgment and sentence should be affirmed. I write only to observe two points. First, some of the arguments relied on by the dissent were either not preserved or not raised in the initial brief, and therefore cannot be properly considered on appeal.
Second, the trial court's authentication rulings were supported by the evidence. We review a trial court's determination regarding the authentication of evidence for an abuse of discretion. Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016). A party may authenticate evidence "by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances." Symonette v. State, 100 So. 3d 180, 183 (Fla. 4th DCA 2012) (quoting Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th DCA 2008) ).
With this standard in mind, I observe that the dissent fails to acknowledge a list of evidence introduced at trial. For example, it was Appellant who not only conceded that the phone belonged to his brother but also made this fact part of his theory of defense during cross-examination and closing argument. The dissent also neglects to mention evidence that, upon returning to the gas station a second time, Appellant did not simply sit in his car and smoke. Instead, the testimony established that he conspicuously "look[ed] around like he was looking for somebody" while sitting in his car. When approached by law enforcement, Appellant fled at such a high rate of speed that officers were not permitted to continue their pursuit.
Although not acknowledged by the dissent, this and other record evidence require an affirmance in this case.
I concur in the majority's affirmance of the judgment and sentence rendered on Count III, charging Appellant, Benjerman D. Roy, with fleeing or attempting to elude a police officer. However, because the State engaged in impermissible inference stacking and because there was insufficient competent, substantial evidence from which a rational jury could find Appellant guilty beyond a reasonable doubt of soliciting a child or person believed to be a child for unlawful sexual conduct using computer services or devices (Count I) and traveling to meet a minor (Count II), I respectfully dissent from the affirmance of those convictions.
In August 2016, a law enforcement officer posing as "Kelsey" posted the following ad on Craigslist: "If you are looking for a younger female, who is down for some fun, then email me." An individual identified only as "Bonjey Roy" responded to the ad from 9f759629734b0adf80f6676441c86@reply.craigslist.org.2 Using the email address "littlebitKelsey@Gmail.com," the officer exchanged emails with "Bonjey Roy." During the exchange, "Kelsey" identified herself as a fourteen-year-old girl.
"Bonjey Roy" provided "Kelsey" a cellular telephone number and a text message exchange ensued.3 After exchanging several text messages, a female officer called the cell phone number. In a recorded conversation, the person expressed interest in meeting "Kelsey" for sex and arranged by text to meet her at a RaceTrac gas station in DeLand that evening. "Kelsey" made two requests of the person: to (1) go into the store and buy her a bottle of water when he/she arrived and (2) send her a text confirming he/she was there.
Undercover officers were watching the RaceTrac when a silver Saturn arrived at the agreed-upon RaceTrac. Law enforcement had no reason to believe the driver was the person who had communicated with "Kelsey," but observed him as he bought gasoline, walked in and out of the store without buying anything, and left.
The undercover agents did not identify the individual and did not obtain the tag number of his vehicle.
When the silver Saturn returned to the RaceTrac a second time, the driver did not go into the store but merely parked and "lit something." Law enforcement officers approached, whereupon the vehicle fled. Later that night, a silver Saturn matching the description of the vehicle that had been observed at the RaceTrac was found abandoned at a rest stop in Lake Mary by other officers. Those officers smelled cannabis and searched the Saturn, recovering Appellant's driver's license from the center console. Based on his driver's license photo, Appellant was identified as the person who had fled from the RaceTrac in the silver Saturn.
Appellant was arrested and charged with soliciting a child for unlawful sexual conduct using computer services or devices in violation of section 847.0135(3)(a), Florida Statutes (2016) (Count I); travelling to meet a minor in violation of section 847.0135(4)(a), Florida Statutes (2016) (Count II); and fleeing or attempting to elude in contravention of section 316.1935(1), Florida Statutes (2016) (Count III). At trial, the trial court allowed the State to introduce into evidence the emails, text messages, and recorded phone conversation between "Bonjey Roy" and "Kelsey" over Appellant's authentication objection. After the jury returned a guilty verdict on all counts, the trial court adjudicated Appellant guilty as charged and sentenced him to twenty-one months in prison, followed by thirty-nine months of probation.
There is a three-fold basis for my dissent in this case. First, I believe there was insufficient evidence to authenticate the emails, texts, and phone call; therefore, it was error to admit them in evidence. Second, under the law addressing purely circumstantial evidence cases, the State failed to carry its burden of proof and presented a case based on impermissible inference-stacking. Finally, viewing the evidence in the light most favorable to the State, no rational jury could have found Appellant guilty of Counts I and II beyond a reasonable doubt. For any of these reasons, it was error to deny Appellant's motion for judgment of acquittal as to Counts I and II.
Section 90.901, Florida Statutes (2018), provides: There is a low threshold for establishing a prima facie showing of authenticity.4 This prima facie showing may be established by direct evidence, such as an admission or the testimony of a witness having sufficient knowledge to tie the evidence to the party opposing its admissibility. It may also be established by circumstantial evidence, such as its "appearance, content, substance, internal patterns or other distinctive characteristics taken in conjunction with the circumstances." Symonette v. State, 100 So. 3d 180, 183 (Fla. 4th DCA 2012) (quoting Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th DCA 2008) ). A trial court's ruling regarding authentication as a prerequisite to admission of evidence is reviewed for an abuse of discretion. Lamb v. State, 246 So. 3d 400, 408 (Fla. 4th DCA 2018) (citing Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016) ).
In assessing the adequacy of evidence for authentication, a court should first consider the reason the evidence is offered. See Commonwealth v. Koch, 630 Pa. 374, 106 A.3d 705 (2014). A court should also consider whether the electronic communication at issue is audio, video, or a writing because different approaches apply to each. Here, the evidence consisted of emails, texts, and an audio recording of a telephone conversation, all offered to prove that Appellant went to the RaceTrac to meet a fourteen-year-old girl for sex.
The written electronic communications in this case—emails and text messages—were admitted through the testimony of Sergeant Ehrenkaufer, who posed as fourteen-year-old "Kelsey" during the emails and text messaging sessions. Citing Charles W. Ehrhardt, Florida Evidence § 901.1a (2017 ed.), the trial court reasoned "the most common way to identify social media and things akin to social media is to have the author testify that they're the ones who generated or created it." Satisfied that Sergeant Ehrenkaufer was the "author," the trial court admitted the evidence.
Professor Ehrhardt's treatise does not support this ruling. The "author" of the emails and texts in this case was some unknown person, not Sergeant Ehrenkaufer. When a participant is used to authenticate an electronic exchange, the focus is on the witness's ability to identify the person against whom the communication is offered. The cases cited by Professor Ehrhardt for the proposition that authors may authenticate documents make this clear. In criminal cases, the person communicating with the target of the investigation must be able to identify the target through some personal knowledge or experience. Sergeant Ehrenkaufer acknowledged he had no idea who was on the other side of the emails and texts.
Two Florida cases have specifically addressed the authentication of text messages. In State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010), the court considered a ruling that sexually explicit text messages of the victim and her boyfriend were inadmissible to prove motive for assault and battery by the victim's ex-husband because they had not been authenticated. At trial, the victim testified that the defendant had shown her the...
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