Craigslist, Casual Encounters and Entrapment

Justin Timothy Morgan was charged with “knowingly using a computer to lure the parent of a child to consent to the participation of that child in illegal sexual conduct” in violation of Florida Statutes § 847.0135(3)(b), “traveling to meet a minor for illegal sexual conduct” in violation of Florida Statutes § 847.0135(4), “attempted lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age” in violation of Florida Statutes §§ 777.04(1) and 800.04(4)(a) and “attempted lewd or lascivious exhibition” in violation of Florida Statutes §§ 777.04(1) and 800.04(7)(a).  Morgan v. State, __ So.3d ___, 2013 WL 1844310 (Florida Court of Appeals 2003). 

The jury found him “not guilty as to the first three counts, but guilty . . . on the attempted lewd or lascivious exhibition count”, after which he appealed.  Morgan v. State, supra.

According to the opinion,the case arose from a

Craigslist advertisement posted by a detective with the Citrus County Sheriff's Office. The advertisement, placed in the `casual encounters’ section of the website, was entitled `Opened Minded Mom looking to share intimate fun -- w4m -- 38,’ signifying a thirty-eight-year-old woman was looking for a man. The body of the advertisement stated: `Open Minded Mom looking to share intimate family fun.’

Morgan responded to the detective's advertisement, whereupon the detective added a fictional twelve-year-old `daughter’ into the equation. Morgan repeatedly expressed reservations about the daughter but did not terminate the dialogue.

He indicated his desire to be intimate with the `mother’ and kept hedging as to any involvement with the daughter, suggesting he wanted to start with the mother and see where it went from there and stating that the daughter could watch or participate if he felt it safe.

At no time did Morgan agree to a sexual encounter with the daughter. Upon arrival at a location set up for the sting operation, Morgan was arrested.

Morgan v. State, supra.

At his trial, Morgan testified that

he had only one sexual encounter before, which took place when he was eighteen with an older woman, and that he had never had sex with anyone from Craigslist. On the night in question, he responded to multiple advertisements in an effort to have a casual sexual encounter, and the detective was the only person who replied.

Morgan noted that the advertisement's title did not mention a child and asserted that the detective first proposed the idea that he be intimate -- what he understood to mean having a sexual encounter -- with the imaginary daughter. He disavowed any intention of having a sexual encounter with the child.

Morgan v. State, supra.

On appeal, Morgan argued that the trial judge erred in not instructing the jury on the defense of entrapment, as he had requested.  Morgan v. State, supra.  As Wikipedia explains, entrapment is a defense to a charge of committing a crime if the charge is based on “conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit.”

Morgan’s attorney offered an instruction on the issue, which I am assuming followed Florida’s Standard Jury Instructions in Criminal Cases. Standard Instruction 3.6(j) explains entrapment to the jury, as follows:

The defense of entrapment has been raised. (Defendant) was entrapped if

1. [he] [she] was, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime of (crime charged), and

2. [he] [she] engaged in such conduct as the direct result of such inducement or encouragement, and

3. the person who induced or encouraged [him] [her] was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer, and

4. the person who induced or encouraged [him] [her] employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it, and

5. (defendant) was not a person who was ready to commit the crime.

When claim of entrapment no defense.

It is not entrapment if (defendant) had the predisposition to commit the (crime charged). (Defendant) had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured (defendant), [he] [she] had a readiness or willingness to commit (crime charged) if the opportunity presented itself.

It also is not entrapment merely because a law enforcement officer, in a good faith attempt to detect crime,
Give a, b, or c as applicable.

(a) [provided the defendant the opportunity, means, and facilities to commit the offense, which the defendant intended to commit and would have committed otherwise.]

(b) [used tricks, decoys, or subterfuge to expose the defendant's criminal acts.]

(c) [was present and pretending to aid or assist in the commission of the offense.]

On the issue of entrapment, the defendant must prove to you by the greater weight of the evidence that a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing.

If the defendant does so, the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the(crime charged). The State must prove defendant's predisposition to commit the (crime charged) existed prior to and independent of the inducement or encouragement.

Florida Standard Jury Instructions in Criminal Cases.

The Court of Appeals began its review of Morgan’s argument by noting that a trial court judge’s decision

to give or withhold a requested jury instruction is reviewed for an abuse of discretion. Worley v. State, 848 So.2d 491 (Florida Court of Appeals 2003) In criminal proceedings, however, that discretion is circumscribed by the defendant's right to have the jury instructed on the theory of a valid defense. Worley v. State, supra.

The threshold for the giving of an instruction on a legally permissible theory of defense is low. To warrant the giving of such an instruction in a case where entrapment is being argued, the defense must show some evidence which suggests the possibility of entrapment.

Once this threshold is met, regardless of how weak or improbable the evidence may be, the defense is entitled to the instruction. See Terwilliger v. State, 535 So.2d 346 (Florida Court of appeals 1988) (`It is not necessary that the defendant convince the trial judge of the merits of the entrapment defense because the trial judge may not weigh the evidence before him in determining whether the instruction is appropriate; it is enough if the defense is suggested by the evidence presented.’).

Morgan v. State, supra.

It then explained that in denying Morgan’s request to give the standard entrapment instruction, the trial judge

effectively ruled that entrapment was not an available defense as a matter of law. The Florida Supreme Court, in Munoz v. State, 629 So.2d 90 (1993),. . . . stated, `Under the constitution of this state, juries, as the finders of fact, decide factually disputed issues and judges apply the law to the facts as those facts are found by the jury.’. . .  

If the factual circumstances are not in dispute and the accused establishes that the government induced him or her to commit the offense charged, and if the State is unable to demonstrate sufficient evidence of predisposition, then the trial court has the authority to rule on the issue of predisposition as a matter of law and dismiss the charges. . . . That is precisely what occurred in Munoz.

Morgan v. State, supra.

The court also explained that in

denying the proposed instruction, the trial judge relied upon Davis v. State, 937 So.2d 300 (Florida Court of Appeals 2006), the only case cited by the State wherein the failure to give a requested entrapment instruction resulted in an affirmance. In Davis, the trial court made a finding that the defense had not presented sufficient evidence to meet even the low threshold warranting the giving of an entrapment instruction.

Here, the State concedes Davis is factually distinguishable. Despite the fact that Davis approached the confidential informant seated in a car and offered to sell her cocaine, Davis claimed entrapment based upon the police officers having sent a provocatively dressed Caucasian female informant into an African–American neighborhood.

Morgan v. State, supra.

It also noted that a statute – Florida Statutes § 777.201(2) – “specifically provides that the issue of entrapment shall be tried by the trier of fact”, e.g., the jury.  Morgan v. State, supra. That meant it was not “up to the trial court to weigh the sufficiency of that evidence or rule upon the likelihood of success of the entrapment defense.”   Morgan v. State, supra.

The Court of Appeals then addressed this trial judge’s failure to give the entrapment instruction requested by Morgan:

Unlike circumstances where the suspect is communicating with a person believed to be a minor, Morgan responded to an advertisement for a casual encounter with an adult female. When the law enforcement officer interjected the prospect of including a minor, Morgan expressed reservations and was equivocal in his responses.

We recognize that most within our society would immediately terminate the conversation upon the mention of the involvement of a minor, and perhaps the jury will reject the defense. However, there is at least some evidence with which the defense could suggest that Morgan was entrapped.

The failure to give a jury instruction on entrapment was error.

Morgan v. State, supra.

The Court of Appeals therefore reversed Morgan’s conviction and remanded the case “for a new trial on the attempted lewd or lascivious exhibition” charge.  Morgan v. State, supra.

In practice, it can be very difficult for defendants to prevail on an entrapment defense.  As in the Davis case, the facts often do not show that the defendant was really not predisposed to commit the crime charged.  It will be up to the jury in Morgan’s case to decide whether that was true here or not. 

In certain respects, this case reminds me of a federal case I did a post on some years ago, in which the U.S. Court of Appeals for the 9^th Circuit reversed a conviction because it found the jury should have accepted the defendant’s entrapment defense.