State v. Panebianco
| Docket Number | 2D22-307 |
| Decision Date | 07 July 2023 |
| Parties | STATE OF FLORIDA, Appellant, v. ERNEST PANEBIANCO, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Sarasota County; Rochelle T Curley, Judge.
Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes Senior Assistant Attorney General, Tampa, for Appellant.
Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, PA Sarasota, for Appellee.
The State appeals the trial court's order dismissing all charges against Ernest Panebianco. Because the trial court erred by granting Panebianco's motion to dismiss, we reverse and remand for further proceedings.
Panebianco was charged with use of a computer to seduce/solicit/entice a child to commit a sex act in violation of section 847.0135(3)(a), Florida Statutes (2019) (count I); traveling to seduce/solicit/entice a child to commit a sex act in violation of section 847.0135(4)(a) (count II); and attempted lewd or lascivious battery on a victim twelve or older but less than sixteen in violation of section 800.04(4)(a), Florida Statutes (2019) (count III).
Panebianco moved to dismiss all charges against him and asserted that he was entrapped by law enforcement. The trial court granted his motion and dismissed the charges. In its order, the court found that there was insufficient evidence to show solicitation or enticement as a matter of law, that Panebianco was subjectively and objectively entrapped, and that the State could not show that Panebianco was ready, willing, and able to commit these offenses without persuasion by law enforcement. We disagree and reverse.
The charges arose as the result of a sting operation aimed at identifying child-sex predators online. Law enforcement created a profile of a fictitious nineteen-year-old woman, "Sophia," on an adult companionship website. Sophia's online profile picture linked to the account was of an undercover officer when she was between twenty-two and twenty-four years of age. However, shortly after their text communications began and multiple times throughout their exchanges, Sophia told Panebianco that she was not the age listed on her profile but was actually fourteen years old.
Panebianco communicated with Sophia over the course of two days, September 20-21, 2019. He initiated contact by texting her, believing that she was nineteen years old, at 9:29 p.m. on September 20. Two minutes later, Sophia messaged Panebianco saying, "To be honest I'm not old enough to drive yet if you still wanna talk let me know." Panebianco responded thirty seconds later saying, "Of course we can talk." Four minutes later, Sophia messaged Panebianco, "I'm 14 but its [sic] cool to meet someone like you." Panebianco immediately replied, "An older guy can go to jail over somebody like you." Nevertheless, the conversation subsequently turned sexual in nature. When asked whether he was "cool" with Sophia's age, Panebianco responded, "That's fine, I am cool and a lot of fun to be with." When the two chatted about watching movies, Sophia asked him whether he is "a romance movie kind of guy." Panebianco responded that he is romantic but said that "movies don't do much for [him]." He then told Sophia that he "love[s] to kiss[,] caress[,] and touch." Eight minutes later, he told her that he would watch a movie with her. Sophia responded asking if they would only watch a movie, and Panebianco stated that he "will be nice" and told her that she "could always take a cab to my house." When asked by Sophia what he will do, Panebianco responded, "Whatever I do I promise you will love it." He added, "You will have to wait and see baby."
Sophia said that she would not go to Panebianco's home without confirmation of what the two would do when she arrived. Panebianco answered, "I will not say on here but I promise I will not hurt you." He emphasized that Sophia is fourteen and told her that he "cannot say those things on the phone or in a text." Even so, when pressed, Panebianco told Sophia, "I will do anything you want me to do and more," and he stated,
Panebianco asked Sophia what she "would do to [him]," and Sophia responded that she has "never been with a guy" and asked what Panebianco liked. Panebianco answered, "[w]e could talk about that over something to eat" and proposed that the two "go get something to eat tomorrow after I get off work." After Sophia told Panebianco that she was a virgin, Panebianco replied, "I would like to be the first guy."
Multiple times during their communications on the first day, Panebianco expressed concern that Sophia was law enforcement or was working with law enforcement. He told Sophia that he could not discuss what they would do when they met up because she is fourteen and he "cannot say those things on the phone or in a text," recognized that he "could go to jail for sending [her] dirty messages," and stated that he did not "know if [Sophia was] a cop trying to set [him] up." However, after assurances from Sophia that she was not law enforcement, Panebianco proceeded to engage in sexually explicit conversation, stating his desire to perform oral sex on Sophia and describing in detail what he would do to her and how he would make her body respond. When Sophia said that she should go to bed, they stopped texting for the night.
Sophia resumed the conversation with Panebianco at 12:47 p.m. the following day by messaging "Heyy [sic]." After the two exchanged small talk, Panebianco asked Sophia what she was doing later that night and told her he would be working until 8 p.m. Sophia responded that she would wait until then, and Panebianco replied, "I would rather go to my house instead of your aunt's house." Sophia said, "I might be okay with that as long as you bring me back and [do] not kidnap me." Panebianco assured her, "You will be safe and I will pick you up and bring you home in a decent time."
After additional conversation, Panebianco asked what time Sophia could go out that night. Sophia told Panebianco that her aunt would be leaving the home around 4 p.m. When Panebianco asked Sophia how long she could stay out, Sophia said that she had to be home by 6:00 the following morning. Again, Panebianco expressed concern that Sophia was "either with the police or working with the police," and he emphasized his worry about going to jail for being with a minor. He told Sophia that she "could be dangerous . . . but so much fun." He said he would not go to Sophia's aunt's house to pick her up but agreed to meet Sophia at a sub shop within walking distance of her aunt's home. When he arrived later that evening, he was arrested and charged.
Our review of an order that grants a defendant's motion to dismiss is de novo. State v. Bennett, 111 So.3d 943, 944 (Fla. 2d DCA 2013). "The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute." Bell v. State, 835 So.2d 392, 393-94 (Fla. 2d DCA 2003) (quoting State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002)). When considering a defendant's motion to dismiss, "the State is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant." Id. at 394 (quoting Pasko, 815 So.2d at 681).
"Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." DeMare v. State, 298 So.3d 1269, 1274 (Fla. 2d DCA 2020) (quoting Munoz v. State, 629 So.2d 90, 99 (Fla. 1993)). Florida Rule of Criminal Procedure 3.190(c)(4) "provides for dismissal of a charge against a defendant when '[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.' "Dixon v. State, 112 So.3d 721, 722-23 (Fla. 2d DCA 2013) (alteration in original) (quoting State v. Yarn, 63 So.3d 82, 84 (Fla. 2d DCA 2011)).
Counts I and II arose from Panebianco's alleged violations of section 847.0135(3)(a) and (4)(a). Section 847.0135(3)(a) prohibits the use of computer services or devices that are capable of electronic data storage or transmission to "[s]educe, solicit, lure, or entice, or attempt to solicit, lure, or entice, a child or another person believed by the person to be a child" to engage in unlawful sexual conduct. Section 847.0135(4)(a) prohibits traveling to meet a minor for those same purposes.
As to count I, the trial court found that the facts do not show that Panebianco solicited or attempted to solicit unlawful sexual activity. As to count II, the trial court found that "the purpose of meeting was to get something to eat as there was no discussion that sexual activity would occur." In coming to these conclusions, the trial court relied upon Randall v. State, 919 So.2d 695 (Fla. 4th DCA 2006). However, that case is distinguishable.
In Randall, Willie Randall was charged with lewd or lascivious battery, lewd or lascivious molestation, and lewd or lascivious conduct by way of solicitation after he allegedly told A.J., a fourteen-year-old girl, that he wanted to "lick her on her vagina," and he touched her on her vagina with his hand. Id. at 695-96. He was found not guilty of the battery and molestation charges but was convicted of lewd or lascivious conduct by way of solicitation. Id. at 695.
On appeal, Randall argued that the alleged statement he made to A.J. that he wanted to lick her vagina was insufficient to support his conviction. Id. at 696. The Fourth District agreed and reversed his conviction. Id. at 697. The court recognized that the crime of solicitation is described...
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