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.
_____________________________/
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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