Berger v. State

259 So. 3d 933
CourtDistrict Court of Appeal of Florida
DecidedNovember 16, 2018
DocketCase No. 5D17-1313
StatusPublished
Cited by3 cases

This text of 259 So. 3d 933 (Berger v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger v. State, 259 So. 3d 933 (Fla. Ct. App. 2018).

Opinion

EISNAUGLE, J.

We grant Appellant Christopher M. Berger's motion for rehearing en banc, withdraw our previous per curiam decision, and substitute the following opinion in its place.

Appellant appeals his convictions for traveling to meet a minor for illegal sexual conduct and attempted sexual battery on a person under twelve years of age. We write only to address Appellant's argument that the trial court erred when it denied his motion for judgment of acquittal on the charge of attempted sexual battery because he did not commit an overt act, relying on our decision in State v. Duke , 709 So.2d 580 (Fla. 5th DCA 1998). We conclude that Appellant committed an overt act, recede from Duke , and affirm.

The Undercover Law Enforcement Operation

Appellant responded to an advertisement on Craigslist for a sexual encounter with a man and woman. Although the ad itself made no reference to a minor, it was posted as part of an undercover sting operation looking for child predators.

A detective, posing as the father of a ten-year-old girl, responded to Appellant's e-mail explaining that he was looking for someone who would teach his ten-year-old daughter about sex. Although Appellant emphasizes that he initially thought he was responding to an ad for an encounter with an adult couple, he nevertheless promptly indicated his interest in the detective's proposal, stating "[w]hile your request may be unusual by most people's standards," "I am very intrigued" and "am [a] very open-minded and a nonjudgmental person."

Over the course of his e-mail conversation with the detective, Appellant was quite specific about the sexual acts he would perform with the child. Appellant then spoke with the detective twice by phone about both the logistics of his drive from north of Ocala to Clermont and the specific sexual acts that he intended to perform with the child. Appellant also promised that he would bring "protection."

Appellant drove more than an hour to a decoy residence in Clermont being used by law enforcement, knocked on the door, and was immediately arrested. He had three condoms in his pocket.

Florida Law: Criminal Attempt and Overt Acts

In Florida, a person commits the offense of criminal attempt if he or she "does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof." § 777.04(1), Fla. Stat. (2015). Thus, "the two elements comprising an attempt to commit a crime are (1) a specific intent to commit the crime and (2) an overt act done toward its commission that is beyond mere preparation." Mizner v. State , 154 So.3d 391, 397 (Fla. 2d DCA 2014) (quoting Enix v. State , 69 So.3d 354, 357 (Fla. 2d DCA 2011) ). "[T]he line between preparatory acts and overt acts is *935difficult to draw and tends to be case specific." Id. (alteration in original) (quoting Hudson v. State , 745 So.2d 997, 1000 (Fla. 2d DCA 1999) ). The second district has explained the difference between mere preparation and overt acts as follows:

Preparation generally consists of devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after preparations are completed. The act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime. 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) (citations omitted). Importantly, "[t]he act need not be ... the ultimate, the last proximate, or the last possible act toward consummation of the crime." Id. at 1137 (citation omitted).

Duke and Its Application

More than twenty years ago in Duke , we reversed the defendant's conviction for attempted sexual battery because we concluded that the defendant had not committed an overt act. 709 So.2d at 582. In that case, the defendant agreed to meet a person he believed was a minor for a sexual encounter. Id. at 581. After meeting the victim in a parking lot, he planned to commit the sexual battery in the victim's home. Id. Upon arriving at the parking lot, however, the defendant was arrested and was later convicted of attempted sexual battery. Id.

On appeal, we reversed and directed the trial court to enter a judgment of acquittal. Id. at 580. Despite evidence that the defendant had discussed the sexual acts he intended to perform and then traveled to the agreed upon meeting place with the victim, we determined, without explanation, that the defendant had not "reached the level of an overt act leading to the commission of sexual battery as required by section 777.04(1)." Id.

Since then, our decision in Duke has often been distinguished, and at times, squarely rejected. In Bist v. State , 35 So.3d 936 (Fla. 5th DCA 2010), a panel of this court considered whether the defendant had committed an overt act within the context of a conviction for attempted lewd and lascivious battery. Id.

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Bluebook (online)
259 So. 3d 933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-state-fladistctapp-2018.