       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                        JAMAL RASHAD LAING,
                              Appellee.

                             No. 4D14-1705

                            [January 6, 2016]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No. 312013CF
001361A.

    Pamela Jo Bondi, Attorney General, Tallahassee, Monique Rolla and
Georgina Jimenez-Orosa, Assistant Attorneys General, West Palm Beach,
for appellant.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellee.

KLINGENSMITH, J.

   The State of Florida (the “State”) appeals an order granting Jamal
Rashad Laing’s (“appellee”) motion to dismiss the charges of traveling to
meet a minor for unlawful sexual activity (“count I”) and lewd computer
solicitation of a child (“count II”). We find that the trial court erred in
granting appellee’s motion to dismiss the charges under both the
subjective and objective standards of entrapment, and reverse.

   On October 9, 2013, a school resource officer observed appellee inside
a parked car in a local park with a minor female (“S.G.”). According to
the resource officer, appellee was on top of S.G., kissing her.

   At the time, appellee was nineteen years old and S.G. was fifteen.
After the officer intervened and spoke with S.G., she told him that during
the consensual encounter appellee attempted to touch her hip, breast,
and groin areas.1 The officer released appellee without arresting him
after a warrant check came back clean.

   The resource officer then transported S.G. back to school to interview
her. During the interview, she told him that she and appellee had
multiple conversations after meeting on Facebook, and that appellee had
picked her up that day after school. It was also revealed that appellee
and S.G. had exchanged nude pictures of themselves in those Facebook
conversations. S.G. showed the resource officer her phone containing
numerous text messages between herself and appellee, and in one
message appellee specifically stated that he wanted S.G. to perform oral
sex on him.

   The case then was turned over to a detective with the Indian River
County Sheriff’s Office for further investigation, who discovered that
appellee had no criminal history. Appellee did not call, text, or otherwise
try to contact S.G. during the week following their encounter.

   Using S.G.’s phone, the detective initiated contact with appellee on
October 16 by texting him the word “hey.” Appellee responded by asking
if S.G. had gotten in trouble for the incident. After some innocent
conversation between appellee and the detective posing as S.G., appellee
asked S.G. if she thought they would have had sex if they had not been

1 We note that although S.G. stated she did not let appellee touch her in any of
these areas, the actions described by S.G. were sufficient to justify law
enforcement’s subsequent investigation as they could have been construed as
an attempt to commit a lewd or lascivious molestation under section 800.04(5),
Florida Statutes:

           (5) LEWD OR LASCIVIOUS MOLESTATION.—
           (a) A person who intentionally touches in a lewd or lascivious
       manner the breasts, genitals, genital area, or buttocks, or the
       clothing covering them, of a person less than 16 years of age, or
       forces or entices a person under 16 years of age to so touch the
       perpetrator, commits lewd or lascivious molestation.

          ....

           (c)2. An offender 18 years of age or older who commits lewd or
       lascivious molestation against a victim 12 years of age or older but
       less than 16 years of age commits a felony of the second degree,
       punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 800.04(5), Fla. Stat. (2013).


                                        2
interrupted. The detective responded “maybe,” and inquired whether or
not the fact that she was only fifteen would have been a problem for
appellee. When questioned as to why she was asking him that question,
the detective responded (as S.G.) that it was to make sure appellee was
comfortable with her age, and that it was not a problem with her if it was
not a problem with him. Appellee stated that he did not care about her
age.

   Appellee then texted that he had been ready to have sex with S.G.
during the first encounter, to which the detective responded, “too bad
that cop showed up.” Appellee replied that he knew they should not
have gone to the park, and that they should have gone to a different
location. In response, the detective told appellee, “I no [sic] a place where
nobody would see us.” Arrangements then were made to have appellee
meet S.G. at a restaurant the following day.

   Appellee confirmed he would meet S.G., and stated that he wanted
her to perform oral sex on him. He also stated that he would show up
only if she would give him some gas money. Appellee was arrested upon
his arrival at the restaurant.

    After being read his Miranda rights, appellee confessed that he had
been texting S.G. and that he had gone to the restaurant to see her. He
admitted that he knew S.G. was fifteen, and although he originally
intended to have sex with S.G., his aunt dissuaded him from doing so
because he could get in trouble.2 During the drive to jail, appellee also
stated that he would have had sex with S.G. if not interrupted, although
it is unclear whether he meant that he would have done so on the day of
his arrest or in the park a week earlier.

   Appellee moved to dismiss his charges based on objective and
subjective entrapment by law enforcement. After an evidentiary hearing,
the court granted appellee’s motion, finding that he was entrapped as a
matter of law under the objective standard of entrapment because his
due process rights were violated. The trial court also found that appellee
was entrapped under the subjective standard because of active
inducement by the detective, and because there was no evidence of
predisposition on the part of appellee. The State now appeals from that
order of dismissal.


2 Despite his professed change of heart, a deputy testified that he found a
condom in appellee’s pocket.


                                     3
   The Entrapment Defense

  In Florida, the defense of entrapment is bifurcated into objective and
subjective variants:

         There are two different theories of entrapment. “Objective
      entrapment analysis focuses on the conduct of law
      enforcement” and “operates as a bar to prosecution in those
      instances where the government’s conduct ‘so offends
      decency or a sense of justice’ that it amounts to a denial of
      due process.” Davis v. State, 937 So. 2d 300, 302 (Fla. 4th
      DCA 2006) (quoting State v. Blanco, 896 So. 2d 900, 901
      (Fla. 4th DCA 2005)). Subjective entrapment, on the other
      hand, “is applied in the absence of egregious law
      enforcement conduct and focuses on inducement of the
      accused based on an apparent lack of predisposition to
      commit the offense.” Id.

State v. Henderson, 955 So. 2d 1193, 1194 (Fla. 4th DCA 2007).

   Section 777.201, Florida Statutes, provides:

         (1) A law enforcement officer, a person engaged in
      cooperation with a law enforcement officer, or a person
      acting as an agent of a law enforcement officer perpetrates
      an entrapment if, for the purpose of obtaining evidence of
      the commission of a crime, he or she induces or encourages
      and, as a direct result, causes another person to engage in
      conduct constituting such crime by employing methods of
      persuasion or inducement which create a substantial risk
      that such crime will be committed by a person other than
      one who is ready to commit it.

          (2) A person prosecuted for a crime shall be acquitted if
      the person proves by a preponderance of the evidence that
      his or her criminal conduct occurred as a result of an
      entrapment. The issue of entrapment shall be tried by the
      trier of fact.

§ 777.201, Fla. Stat. (2013) (emphasis added).

  We have defined inducement as “government conduct creating a
substantial risk that an otherwise law-abiding citizen would commit an


                                    4
offense, including persuasion, fraudulent representations, threats,
coercive tactics, harassment, promises of reward, or pleas based on need,
sympathy or friendship.” Farley v. State, 848 So. 2d 393, 395 (Fla. 4th
DCA 2003) (quoting United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.
1994)).

    Objective Due Process Standard

   Entrapment under the objective due process standard requires
“conduct of law enforcement agents [that] is so outrageous that due
process principles would absolutely bar the government from invoking
judicial processes to obtain a conviction.” Tercero v. State, 963 So. 2d
878, 883 (Fla. 4th DCA 2007) (quoting State v. Glosson, 462 So. 2d 1082,
1084 (Fla. 1985)).

    In considering objective entrapment, courts must look to the totality
of the circumstances, focusing on “whether the government conduct ‘so
offends decency or a sense of justice that judicial power may not be
exercised to obtain a conviction.’” Hernandez v. State, 17 So. 3d 748,
751 (Fla. 5th DCA 2009) (quoting State v. Blanco, 896 So. 2d 900, 901
(Fla. 4th DCA 2005)). “It is a balancing test; the court must weigh the
rights of the defendant against the government’s need to combat crime.”
Bist v. State, 35 So. 3d 936, 939 (Fla. 5th DCA 2010). The justification
lies in stunting prosecutions premised upon “methods offending one’s
sense of justice.” Munoz v. State, 629 So. 2d 90, 98 (Fla. 1993).

   “Cases finding a due process violation based on outrageous
government conduct have one common thread: affirmative and
unacceptable conduct by law enforcement or its agent,” Bist, 35 So. 3d at
940, that “entices or facilitates the commission of the crime.” Schwartz v.
State, 125 So. 3d 946, 951 (Fla. 4th DCA 2013).

    When evaluating this standard, the trial court must, however, “limit
its consideration to the conduct of law enforcement.” Blanco, 896 So. 2d
at 902. “[T]he effect of the officer’s conduct on the defendant, the
defendant’s subjective perception of the situation, and [the defendant’s]
apparent lack of predisposition to commit the offense” are all factors that
are irrelevant to a claim of entrapment on due process grounds.3 Id.

3We have in other cases mentioned factors related to predisposition in the due
process analysis, but it appears those factors were not dispositive of the issue of
whether there was objective entrapment. See Mendel v. State, 903 So. 2d 1027,
1029 (Fla. 4th DCA 2005) (“The defendant had prior felonies, and the CI had


                                        5
    For example, the Florida Supreme Court has found objective
entrapment in cases where law enforcement officers provide informants
with a financial stake in procuring convictions, or require informants to
effectuate arrests within a defined timeframe, because both scenarios
greatly incentivize the informant “not only to make criminal cases, but
also to color . . . testimony or even commit perjury.” Glosson, 462 So. 2d
at 1085 (barring law enforcement from using contingency fees, wherein
informants would receive ten percent of all civil forfeitures in exchange
for convictions); see also State v. Hunter, 586 So. 2d 319, 320, 322 (Fla.
1991) (citation omitted) (finding objective entrapment where the
informant’s “contract” required in part that he obtain “at least four
kilograms of cocaine within a certain period of time”).4

    Objective entrapment also exists where law enforcement otherwise
employs impermissible tactics to create the offense. See, e.g., State v.
Williams, 623 So. 2d 462, 463 (Fla. 1993) (holding that law enforcement
violated the due process clause of the Florida Constitution by
manufacturing crack cocaine to be used in reverse-sting operation);
Madera v. State, 943 So. 2d 960, 961-62 (Fla. 4th DCA 2006) (holding
that law enforcement violated due process clause of the Florida
Constitution where confidential informant promised the defendant an
intimate relationship if he helped her obtain narcotics).

   Appellee argues that the detective’s conduct in this case was
egregious because the agent initiated contact with him via text message.
However, creating nothing more than an opportunity to commit a crime


been instructed to approach only persons he had previously had drug business
with or who were known to deal in drugs. Under these facts, there was no due
process violation.” (emphasis added)); see also Nadeau v. State, 683 So. 2d 504,
506 (Fla. 4th DCA 1995) (“First, the agents and officers did not actively monitor
Antar’s repeated contacts with Nadeau nor did they prepare any notes on their
contact with Antar. Nadeau had no criminal history and the officers
acknowledged that they knew of no drug activity prior to his involvement in this
case. Therefore, we hold that the law enforcement conduct in this case was so
outrageous as to constitute a denial of appellant’s due process rights.”
(emphasis added)).

4Hunter was decided under the objective test of entrapment set forth in Cruz v.
State, 465 So. 2d 516 (Fla. 1985), Hunter, 586 So. 2d at 322, but that test was
abolished by section 777.201. See Munoz, 629 So. 2d at 99. Nonetheless, the
objective entrapment test from Cruz is essentially the same concept as the due
process entrapment defense. See id. at 102 (Kogan, J., concurring).


                                       6
is not prohibited. See Bist, 35 So. 3d at 940 (finding no due process
violation where law enforcement set up a sting operation in which a
decoy entered an online chat room purporting to be a minor, waited for
someone to solicit sexual activity, and allowed the defendant to set up a
meeting intending to engage in sexual activity with a 13-year-old);
Blanco, 896 So. 2d at 901-02 (ruling undercover officer’s conduct in
approaching the defendant at a gay bar and telling the defendant that he
liked to “party,” which he explained as meaning the use of cocaine, was
not so outrageous as to warrant dismissal of charges against the
defendant for providing crystal meth to the officer); Khelifi v. State, 560
So. 2d 333, 333-34 (Fla. 4th DCA 1990) (holding no violation of due
process where informant, who acted pursuant to a substantial assistance
agreement, intentionally set up a large cocaine purchase by the co-
defendants; the informant did not make any “threats or persistent
enticements causing the defendant to act contrary to a law abiding
predisposition”); Gonzalez v. State, 525 So. 2d 1005, 1006 (Fla. 3d DCA
1988) (finding no objective entrapment where the informant cajoled the
defendant and called him ten or fifteen times to induce the meeting with
the undercover officer).5

   We have held in previous cases that repeated calls alone, absent any
showing of threats or promises, is insufficient to constitute entrapment.
See, e.g., Henderson, 955 So. 2d at 1195 (finding no inducement where
informant, after years of no communication with defendant, placed a
series of calls to the defendant to arrange a drug transaction); see also
Quesada v. State, 707 So. 2d 808, 810 (Fla. 4th DCA 1998) (“Repeated
calls alone do not necessitate a finding of entrapment.”). Here, there is
no evidence that the detective prodded or coerced appellee into
submitting to pressure to have sex with an underage female. Nor was
there any type of law enforcement misconduct that we previously have
stated violates a defendant’s due process rights by ensnaring the
defendant to commit a crime, regardless of his predisposition. See
Schwartz, 125 So. 3d at 951 (providing various examples).

   Appellee asserts that this case is similar to Farley, where we held that
the government’s manufacture of child pornography and assurances of
protection from government interference, intended to lure defendant into
purchasing such material, was objective entrapment which violated due
process. 848 So. 2d at 398. We do not find the facts in Farley to be
analogous to this case. The defendant in Farley, who was not a

5Gonzalez was also decided under the objective test of entrapment set forth in
Cruz. See Gonzalez, 525 So. 2d at 1006.


                                      7
registered sex offender, was initially contacted by law enforcement
through a spam e-mail soliciting patrons for a fictitious pornography
business. Id. at 394. The e-mail included repeated assurances that all
communications and transactions would be shielded from government
interference. Id. The defendant had never before contacted the source of
the e-mail; Florida law enforcement found his e-mail address on a list
compiled by a Texas taskforce. Id. Unlike the defendant in Farley,
appellee was not targeted out of the blue, but instead: 1) had physical
interaction with an underage minor in an encounter where the minor
admitted that appellee attempted to touch her breasts, thighs, and groin
areas; 2) had exchanged nude photographs with that same minor; and 3)
was not solicited or coerced into agreeing to engage in sexual conduct
with the minor.

   Therefore, the Indian River Sheriff’s Officer did not target appellee as
someone “not involved in an existing criminal undertaking in need of
detection by law enforcement.” Id. at 397; see also Cline v. State, 958 So.
2d 961, 965 (Fla. 4th DCA 2007) (“The circumstances, here, differ from
those cases where objective entrapment was found. This is not a case
where the defendant had no prior criminal history or involvement with
drugs . . . .”); Mendel v. State, 903 So. 2d 1027, 1029 (Fla. 4th DCA
2005) (“The defendant had prior felonies, and the CI had been instructed
to approach only persons he had previously had drug business with or
who were known to deal in drugs. Under these facts, there was no due
process violation.”).

    This case is not one where the crime was totally and completely
orchestrated by law enforcement. The fact that appellee did not re-
initiate contact with S.G. for a week after being interrupted on October 9
is immaterial. Law enforcement’s text from S.G.’s phone of the word
“hey” did not constitute a manufacture of the crime, nor was it so far
removed from the precipitating event that there was a break in the chain
of continuity of appellant’s conduct. Moreover, we are not persuaded
that the detective’s comment that he knew “a place where no one would
find [them]” amounts to egregious police conduct.           As such, law
enforcement’s actions did not rise to the level of outrageousness or
egregiousness required to support a finding of objective entrapment on
due process grounds. The trial court should have denied appellee’s
motion to dismiss on the objective entrapment defense.




                                    8
   Subjective Standard

    Application of the subjective standard codified in section 777.201
requires a three-part test: 1) “whether an agent of the government
induced the accused to commit the offense charged[;]” 2) if so, “whether
the accused was predisposed to commit the offense charged[;]”and
3) “whether the entrapment evaluation should be submitted to a jury.”
Munoz, 629 So. 2d at 99-100. “The first two [parts] involve questions of
fact and differing burdens of proof, and the third [part] addresses
whether the issue of entrapment must be submitted to the jury or
whether the issue can be decided by the judge as a matter of law.” Id. at
99.

   Regarding the first prong of the test, “the accused has the burden of
proof and, pursuant to section 777.201, must establish this factor by a
preponderance of the evidence.” Id. The court should move on to the
second and third questions only if the defendant establishes inducement.
See id.; see also Henderson, 955 So. 2d at 1195 (citing Munoz, 629 So.
2d at 99).

   Texting the word “hey” to appellee after a week of no contact with the
victim is wholly insufficient to constitute inducement. In Henderson, this
court found no inducement despite the fact that a government informant
seeking methamphetamine called a defendant to whom the informant
had not spoken for five or six years. 955 So. 2d at 1195. There, the
defendant previously had sold drugs to and bought drugs from the
informant. Id.

    There was no evidence in this case that the detective induced appellee
to agree to a sexual encounter. Rather, it was appellee who proposed
meeting the minor once again to engage in the unlawful acts that
previously had been interrupted, after the detective mentioned that he
knew of a more private area. Appellee guided the conversation to sex on
his own volition; the detective’s innocuous text message to start the
conversation with appellee did not amount to a concerted effort to lure
him into committing a crime, and neither did his statement regarding
knowledge of a more secluded location. Therefore, appellee was not
induced. See State v. Dickinson, 370 So. 2d 762, 763 (Fla. 1979) (“There
is clearly no constitutional prohibition against a law enforcement officer
providing the opportunity for a person who has the willingness and
readiness to break the law.”).




                                    9
  Conclusion

   Because the evidence shows that law enforcement did not induce
appellee to commit the crimes charged, we need not address the other
prongs of the subjective entrapment test. See Munoz, 629 So. 2d at 99;
see also Henderson, 955 So. 2d at 1195. We reverse the trial court’s
dismissal of counts I and II on the grounds that neither objective nor
subjective entrapment existed as a matter of law, and remand for
proceedings consistent with this opinion.

  Reversed and Remanded.

WARNER and LEVINE, JJ., concur.

                          *       *        *

  Not final until disposition of timely filed motion for rehearing.




                                  10
