State v. Murphy

124 So. 3d 323, 2013 WL 5567495
CourtDistrict Court of Appeal of Florida
DecidedOctober 9, 2013
DocketNos. 1D12-4514, 1D12-4810
StatusPublished
Cited by35 cases

This text of 124 So. 3d 323 (State v. Murphy) 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
State v. Murphy, 124 So. 3d 323, 2013 WL 5567495 (Fla. Ct. App. 2013).

Opinion

MARSTILLER, J.

The State charged Thomas Murphy with using a computer service to solicit a person believed to be the parent of a child to engage in unlawful sexual conduct with a person believed to be the child, and with thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a minor. See § 847.0135(3)(b), (4)(b), Fla. Stat. (2011). The charges arose after Murphy answered an advertisement posted on the Internet site www.craigslist.org (“craigslist”), and arranged to have sex with a 14-year-old girl. The advertisement was placed by a law enforcement officer posing as the girl’s father. A jury found Murphy guilty of both felonies. Departing downward from the 42-month prison sentence indicated on Murphy’s sentencing score sheet, the trial court withheld adjudication and placed Murphy on concurrent terms of nine months in jail, followed by five years’ sex-offender probation.1

Seeking reversal of the verdicts and sentences, Murphy argues that: (1) he was entitled to judgment of acquittal because the State presented no evidence establishing he had solicited a person believed to be the parent of a child; (2) law enforcement’s undercover operation constituted objective entrapment; and (3) separate punishments for using a computer service to solicit sex with a minor and traveling to meet a minor after using a computer service to solicit sex violate double jeopardy principles. The State cross-appeals the downward departure sentence, arguing there was no competent, substantial evidence supporting the mitigating factors the trial court relied on to depart from the minimum 42-month prison term yielded by Murphy’s sentencing score sheet, and that the trial court abused its discretion in departing from the minimum sentence. For the reasons explained below, we affirm on all issues.

A. Murphy’s Appeal

1. Motion for judgment of acquittal

The provisions of section 847.0135, Florida Statutes (2011), under which the State charged and prosecuted Murphy, state in pertinent part:

(3) CERTAIN USES OF COMPUTER SERVICES OR DEVICES PROHIBITED. — Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
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(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct, commits a felony of the third degree[.]
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(4) TRAVELING TO MEET A MINOR. — Any person who travels any distance either within this state, to this state, or from this state ... for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a [327]*327computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
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(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct, commits a felony of the second degree[.]

Murphy asserts that the trial court erred by denying his motion for judgment of acquittal because the State’s evidence failed to establish he solicited, lured, or enticed someone believed to be a parent to consent to his having sex with the person’s child.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Johnston v. State, 863 So.2d 271, 283 (Fla.2003) (citations omitted).

At Murphy’s trial, the State put on evidence showing that the Tallahassee Police Department participated with the Internet Crimes Against Children Task Force in conducting an online undercover operation intended to discover and apprehend people seeking to sexually exploit children. Officer Russell Huston placed an advertisement on craigslist with the tagline, “Need a discreet male for young female — w4m (NE TLH).” The body of the ad read, “Contact me with a face pic and I will provide details. Be serious and discreet!” and included an email address.

Murphy, as well as others, responded to the ad. The State’s evidence included the following email conversation between Murphy and Officer Huston, which occurred over the course of approximately five hours:

MURPHY: Hey there just seeing if you were still looking for a guy to meet up with if so hit me back.
HUSTON: Hey man... .she likes your pic... full disclosure... Im her dad.she is 14, almost 15. older looking for her age. She had a bad first experience and looking for an older, patient experienced guy to show her how it should really be. I’m ju[s]t here to make sure some serial killer doesn’t come over. Let me know if you’re still interested and tell me about yourself.
MURPHY: This has to be spam there’s no way this is real. If your real can I see a pic?
HUSTON: its real and we need to talk a bit before i send you my 14 year old daughters pic
MURPHY: Wow Ok well what do you need to know?
HUSTON: If you’re Ok with her age, tell me about yourself. Id also like to show her your face pic to see if she is interested.
MURPHY: Well I’m 22 im a massage therapist im really down to earth and chill. I love music and I love the outdoors.
HUSTON: do you have a plan about what you want to show her?
MURPHY: Not really just make sure she has a good time and not take advantage of her. I mean what did you have in mind for her?
[328]*328HUSTON: totally up to whoever comes over... .but i need someone who knows what they want..if thats not ■ you.. .no hard feelings
MURPHY: I mean I was goin to-make love to her and show her all guys aren’t pieces of shit really I. mean that’s what you want to show her right I just don’t want to overstep my bounds ya know
HUSTON: well i think she would be ok with that.. .would you take any steps not to hurt her? she might be a little small for you
MURPHY: Of course I’m not trying to tear her up lol

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Cite This Page — Counsel Stack

Bluebook (online)
124 So. 3d 323, 2013 WL 5567495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-murphy-fladistctapp-2013.