Lawrence D. Brown McCarter v. State of Florida

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

LAWRENCE D. BROWN NOT FINAL UNTIL TIME EXPIRES TO

MCCARTER, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant,

CASE NO. 1D15-869

v.

STATE OF FLORIDA,

Appellee.

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Opinion filed September 8, 2016.

An appeal from the Circuit Court for Bay County.

James B. Fensom, Judge.

Nancy A. Daniels, Public Defender and Joanna Aurica Mauer, Assistant Public

Defender, for Appellant.

Pamela Jo Bondi, Attorney General and Matthew Pavese, Assistant Attorney

General, for Appellee.

OSTERHAUS, J.

We affirm the seven issues Appellant raises on appeal without comment,

except for discussing the double jeopardy he raises related to State v. Shelley, 176

So. 3d 914 (Fla. 2015).

Appellant argues that his dual convictions for soliciting a minor and travelling

to meet a minor for sex constitute a violation of double jeopardy under Shelley. Both

the federal and state Constitutions protect defendants against multiple convictions

for the same crime. See Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). And

under Shelley, convictions for solicitation (see § 847.0135(3), Florida Statutes), and

traveling after solicitation (see § 847.0135(4), Florida Statutes), cannot stand if they

are based upon the same conduct.

We affirm in this case because Appellant’s solicitation and traveling

convictions did not arise from the same criminal transaction and were distinct

criminal acts. To determine if multiple offenses arise from the same conduct, courts

consider things like “whether there are multiple victims, whether the offenses

occurred in multiple locations, and whether there has been a ‘temporal break’

between offenses.” State v. Paul, 934 So. 2d 1167, 1172-73 (Fla. 2006) (overruled

on other grounds by Valdes, 3 So. 3d at 1077). See also Cabrera v. State, 884 So. 2d

482, 484 (Fla. 5th DCA 2004) (holding that in order for crimes to be considered to

have occurred in more than one criminal episode, there must be a sufficient temporal

break between the two acts in order to allow the offender to reflect and form a new

criminal intent for each offense).

Here, based on the testimony and argument provided at trial, the solicitation

evidence is that Appellant used social media to solicit naked photos from a 14 year-

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old female victim more than a dozen times beginning on July 19, 2013. The State’s

solicitation case and argument to the jury focused on these requests for illicit

pictures, which didn’t involve traveling, but taking and sending pictures with a

smartphone. In turn, Appellant’s solicitation defense attempted to counter the State

by reference to the same picture evidence: “where is the picture? They’re not in

evidence. Supposedly he sent a picture. . . . Didn’t happen. In fairness, they don’t

have to [put a picture in evidence], but I would suggest to you that lack of it is

circumstantial evidence that shows that it didn’t happen.”

Conversely, the traveling conviction was supported by evidence that

Appellant messaged the victim from his phone to entice her to meetings where he

would molest her. It happened multiple times. Appellant messaged and then traveled

to meet her once at a church retreat, once at a movie theatre, and other times at the

victim’s home. The information and evidence indicated that this criminal conduct

began on July 22, 2013, the date Appellant arrived at the church retreat.

The trial record thus demonstrates that this wasn’t a Shelley-type case where

the State used the same solicitation to charge the defendant with both solicitation

and traveling after solicitation. The solicitation and traveling convictions arose from

different criminal episodes and acts, which involved different dates, locations, and

criminal goals—gaining illicit pictures versus arranging face-to-face hookups.

Because Appellant’s convictions do not violate double jeopardy, we AFFIRM.

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ROBERTS, CJ. and WOLF, J., CONCUR.

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