Wiggins v. State, 4D00-3411.

• Decision Date: 08 May 2002
• Docket Number: No. 4D00-3411.,4D00-3411.
• Citation: 816 So.2d 745
• Parties: Joseph WIGGINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

816 So.2d 745

Joseph WIGGINS, Appellant, v. STATE of Florida, Appellee.

No. 4D00-3411.

District Court of Appeal of Florida, Fourth District.

May 8, 2002.

John Olea of Richard G. Lubin, P.A., West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Laura Fisher Zibura and Sue Ellen Kenny, Assistant Attorney Generals, West Palm Beach, for appellee.

STONE, J.

We affirm Joseph Wiggins' (Wiggins) conviction for the offense of attempted lewd assault.

The facts are undisputed. Wiggins, 54, a next door neighbor of the victim, a 14 year old girl, gave her a ride to a friend's house. As she got out of the car, Wiggins handed her two $5 bills wrapped around a letter marked "Private." The letter read:

[Victim], You are so very fine. Call me Monday around 8:15 A.M. when I am alone, then come over for a ride to school. I'll pay you fifty dollars to just lick your pussy, then take you to school. You know that any time you've wanted something that I was always there for you. I would never hurt you, I just want to lick you, [victim]. Come over & see me Monday when I am alone.

The girl later showed the letter to law enforcement authorities and Wiggins was charged with attempting to handle, fondle, or assault a child under the age of 16 years old in a lewd, lascivious, or indecent manner in violation of sections 777.04(1) and 800.04(1), Florida Statutes (2000). Following an order denying his motion to dismiss the charge, Wiggins entered a plea of no contest, preserving the issue for appeal. Wiggins argues that the facts are insufficient for a finding of attempt because he did not take an overt step towards the commission of a lewd or lascivious act.

On review of a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), it is the duty of this court to determine "not whether a jury would find a defendant guilty of the charged crime, but, rather whether the facts could be sufficient for a jury to convict a defendant." Griffin v. State, 711 So.2d 1195, 1196 (Fla. 1st DCA 1998). We conclude that the facts in this case are sufficient for a jury to convict Wiggins of the attempt charge.

In order to attempt to commit a crime, there must be specific intent to commit a particular crime and an overt act toward its commission. Geldreich v. State, 763 So.2d 1114, 1118 (Fla. 4th DCA 1999). Here, the issue of intent is not in dispute where Wiggins concedes that the contents of the letter manifest the specific intent to commit a lewd and lascivious act on the victim. The issue, here, is whether personally handing the note to her in privacy, along with $10, was enough to constitute an overt act.

To constitute an overt act, the act must go beyond mere preparation. State v. Walker, 705 So.2d 589, 590 (Fla. 4th DCA 1997). "Some appreciable fragment of the crime must be committed and it must proceed to the point that the crime would be consummated unless interrupted by a circumstance independent of the attemptor's will." State v. Coker, 452 So.2d 1135, 1136 (Fla. 2d DCA 1984). However, the act does not have to be the ultimate or last possible act toward consummation of the crime. Id. at 1137. Furthermore, in the cases of child molestation, courts have chosen to draw an early line in recognizing behavior as an attempt. Hudson v. State, 745 So.2d 997, 1000 (Fla. 2d DCA 1999); see Smith v. State, 632 So.2d 644 (Fla. 1st DCA 1994)

(holding that repeatedly driving by young girls and shouting vulgar requests for sex constituted sufficient overt act for charge of attempted lewd and lascivious act).

In Hudson, the appellant had posted a personal advertisement in a pornographic magazine. A police detective responded to the advertisement, posing as a 14 year old boy named "Larry." Over the next several weeks, the appellant communicated with "Larry" until finally the appellant purchased a plane ticket for "Larry" and arranged for "Larry's" transportation from the airport to the appellant's home. Id. at 999. On the scheduled day, "Larry" arrived in a taxi. When the appellant went to greet him, he was arrested and charged with attempted lewd and lascivious act.

On Hudson's appeal from the denial of his motion to dismiss, the issue was whether he took an overt step toward commission of the crime. The court recognized that the line between preparatory acts and overt acts is difficult to draw and is case specific. However, the court decided that the attempt charge, there, was supported by an overt act. Id. at 1000.

Here, Wiggins, like the appellant in Hudson, committed an overt act toward the commission of a lewd act. Wiggins handed the child under 16 a note that not only manifested his intent to commit the act, but also contained detailed instructions on where and when the lewd act was to take place. Furthermore, along with the note, Wiggins included $10 that could reasonably be inferred to be a partial payment of the promised $50 or other inducement. Thus, like in Hudson, Wiggins had made all the necessary arrangements for the lewd act to take place and there was direct movement toward the ultimate commission of the crime.

We recognize that in the area of child molestation, the line between preparatory acts and overt acts is difficult to draw and tends to be case specific. See id. at 1000. Thus, we are not persuaded to reach a different conclusion based on State v. Duke, 709 So.2d 580 (Fla. 5th DCA 1998). Similar to Hudson, Duke involved a situation where the appellee was communicating over the Internet with an undercover detective posing as a minor named "Niki." The appellee arranged to meet "Niki" in a parking lot upon which the plan was that the two would return to "Niki's" home and engage in various sexual acts. Id. at 581...