State v. Murphy
| Citation | 124 So.3d 323 |
| Decision Date | 07 November 2013 |
| Docket Number | Nos. 1D12–4514,1D12–4810.,s. 1D12–4514 |
| Parties | STATE of Florida, Appellant, v. Thomas MURPHY, Appellee. Thomas Murphy, Appellant, v. State of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
OPINION TEXT STARTS HERE
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for State of Florida.
Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Thomas Murphy.
The State charged Thomas Murphy with using a computer service to solicit a person believed to be the parent of a child to engage in unlawful sexual conduct with a person believed to be the child, and with thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a minor. See§ 847.0135(3)(b), (4)(b), Fla. Stat. (2011). The charges arose after Murphy answered an advertisement posted on the Internet site www. craigslist. org (“craigslist”), and arranged to have sex with a 14–year–old girl. The advertisement was placed by a law enforcement officer posing as the girl's father. A jury found Murphy guilty of both felonies. Departing downward from the 42–month prison sentence indicated on Murphy's sentencing score sheet, the trial court withheld adjudication and placed Murphy on concurrent terms of nine months in jail, followed by five years' sex-offender probation.1
Seeking reversal of the verdicts and sentences, Murphy argues that: (1) he was entitled to judgment of acquittal because the State presented no evidence establishing he had solicited a person believed to be the parent of a child; (2) law enforcement's undercover operation constituted objective entrapment; and (3) separate punishments for using a computer service to solicit sex with a minor and traveling to meet a minor after using a computer service to solicit sex violate double jeopardy principles. The State cross-appeals the downward departure sentence, arguing there was no competent, substantial evidence supporting the mitigating factors the trial court relied on to depart from the minimum 42–month prison term yielded by Murphy's sentencing score sheet, and that the trial court abused its discretion in departing from the minimum sentence. For the reasons explained below, we affirm on all issues.
The provisions of section 847.0135, Florida Statutes (2011), under which the State charged and prosecuted Murphy, state in pertinent part:
(3) CERTAIN USES OF COMPUTER SERVICES OR DEVICES PROHIBITED.—Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
...
(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct,
commits a felony of the third degree[.] ...
(4) TRAVELING TO MEET A MINOR.—Any person who travels any distance either within this state, to this state, or from this state ... for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
...
(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct,
commits a felony of the second degree[.]
Murphy asserts that the trial court erred by denying his motion for judgment of acquittal because the State's evidence failed to establish he solicited, lured, or enticed someone believed to be a parent to consent to his having sex with the person's child.
Johnston v. State, 863 So.2d 271, 283 (Fla.2003) (citations omitted).
At Murphy's trial, the State put on evidence showing that the Tallahassee Police Department participated with the Internet Crimes Against Children Task Force in conducting an online undercover operation intended to discover and apprehend people seeking to sexually exploit children. Officer Russell Huston placed an advertisement on craigslist with the tagline, “Need a discreet male for young female—w4m (NE TLH).” The body of the ad read, and included an email address.
Murphy, as well as others, responded to the ad. The State's evidence included the following email conversation between Murphy and Officer Huston, which occurred over the course of approximately five hours:
In the remaining exchanges, the men arranged for Murphy's arrival at the agreed-upon location where he would have sex with the 14–year–old girl.
Murphy argues that this evidence fails to show solicitation, luring, or enticement on his part in order to obtain the father's consent. Rather, he argues, the evidence establishes that the father offered the teenage daughter for sex, and that he accepted the offer; he did not need to further obtain consent. Considering the evidence de novo, in the light most favorable to the State, we conclude the above-quoted email communication was sufficient for the jury to find Murphy solicited, lured, or enticed the father into letting him have sex with the 14–year–old girl. The email messages between the men reflect Murphy's efforts to satisfy the father's concerns and requirements for a “patient experienced guy”—demonstrating himself to be the right man for the job—in order to obtain the father's consent.
Murphy relies on Randall v. State, 919 So.2d 695 (Fla. 4th DCA 2006), and Stumpf v. State, 677 So.2d 1298 (Fla. 5th DCA 1996), to argue that merely describing what he intended to do to the girl did not constitute solicitation. Those cases involved defendants charged with soliciting a minor to commit a lewd or lascivious act. See§ 800.04(6), Fla. Stat. The court in Randall held that the defendant's statement to a minor saying he “wanted” to lick her vagina did not, as a matter of law, constitute soliciting the minor to commit an unlawful act. Randall, 919 So.2d at 697. Similarly, the court in Stumpf held the defendant's statement to a minor that he intended to perform oral sex on the child was a threat to make the child a victim of a crime, but was not solicitation. Stumpf, 677 So.2d at 1298.
We find Randall and Stumpf inapposite. Murphy did not simply describe what he intended to do, as did the defendants in those cases. He also described himself ( ), and responded to the father's concerns (“not take advantage of her”; “show her all guys aren't pieces of shit”; “not trying to tear her up”; “not trying to have a kid either”), soliciting the father's consent and trying to close the deal. Moreover, the statutory provisions under which Murphy was charged proscribe “solicit[ing], lur[ing], or...
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