Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Appellant, v. ERNEST PANEBIANCO, Appellee. No. 2D22-307 July 7, 2023 Appeal from the Circuit Court for Sarasota County; Rochelle T. Curley, Judge. Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellant. Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, PA, Sarasota, for Appellee. SILBERMAN, Judge. The State appeals the trial court's order dismissing all charges against Ernest Panebianco. Because the trial court erred by granting Panebianco's motion to dismiss, we reverse and remand for further proceedings. Panebianco was charged with use of a computer to seduce/solicit/entice a child to commit a sex act in violation of section 847.0135(3)(a), Florida Statutes (2019) (count I); traveling to seduce/solicit/entice a child to commit a sex act in violation of section 847.0135(4)(a) (count II); and attempted lewd or lascivious battery on a victim twelve or older but less than sixteen in violation of section 800.04(4)(a), Florida Statutes (2019) (count III). Panebianco moved to dismiss all charges against him and asserted that he was entrapped by law enforcement. The trial court granted his motion and dismissed the charges. In its order, the court found that there was insufficient evidence to show solicitation or enticement as a matter of law, that Panebianco was subjectively and objectively entrapped, and that the State could not show that Panebianco was ready, willing, and able to commit these offenses without persuasion by law enforcement. We disagree and reverse. The charges arose as the result of a sting operation aimed at identifying child-sex predators online. Law enforcement created a profile of a fictitious nineteen-year-old woman, "Sophia," on an adult companionship website. Sophia's online profile picture linked to the account was of an undercover officer when she was between twenty-two and twenty-four years of age. However, shortly after their text communications began and multiple times throughout their exchanges, Sophia told Panebianco that she was not the age listed on her profile but was actually fourteen years old. Panebianco communicated with Sophia over the course of two days, September 20-21, 2019. He initiated contact by texting her, believing that she was nineteen years old, at 9:29 p.m. on September 20. Two minutes later, Sophia messaged Panebianco saying, "To be honest I'm not old enough to drive yet if you still wanna talk let me know." Panebianco responded thirty seconds later saying, "Of course we can 2 talk." Four minutes later, Sophia messaged Panebianco, "I'm 14 but its [sic] cool to meet someone like you." Panebianco immediately replied, "An older guy can go to jail over somebody like you." Nevertheless, the conversation subsequently turned sexual in nature. When asked whether he was "cool" with Sophia's age, Panebianco responded, "That's fine, I am cool and a lot of fun to be with." When the two chatted about watching movies, Sophia asked him whether he is "a romance movie kind of guy." Panebianco responded that he is romantic but said that "movies don't do much for [him]." He then told Sophia that he "love[s] to kiss[,] caress[,] and touch." Eight minutes later, he told her that he would watch a movie with her. Sophia responded asking if they would only watch a movie, and Panebianco stated that he "will be nice" and told her that she "could always take a cab to my house." When asked by Sophia what he will do, Panebianco responded, "Whatever I do I promise you will love it." He added, "You will have to wait and see baby." Sophia said that she would not go to Panebianco's home without confirmation of what the two would do when she arrived. Panebianco answered, "I will not say on here but I promise I will not hurt you." He emphasized that Sophia is fourteen and told her that he "cannot say those things on the phone or in a text." Even so, when pressed, Panebianco told Sophia, "I will do anything you want me to do and more," and he stated, "I love to please with my tongue . . . [f]rom top to bottom. I love to take my time." Panebianco asked Sophia what she "would do to [him]," and Sophia responded that she has "never been with a guy" and asked what Panebianco liked. Panebianco answered, "[w]e could talk about that over something to eat" and proposed that the two "go get something to eat 3 tomorrow after I get off work." After Sophia told Panebianco that she was a virgin, Panebianco replied, "I would like to be the first guy." Multiple times during their communications on the first day, Panebianco expressed concern that Sophia was law enforcement or was working with law enforcement. He told Sophia that he could not discuss what they would do when they met up because she is fourteen and he "cannot say those things on the phone or in a text," recognized that he "could go to jail for sending [her] dirty messages," and stated that he did not "know if [Sophia was] a cop trying to set [him] up." However, after assurances from Sophia that she was not law enforcement, Panebianco proceeded to engage in sexually explicit conversation, stating his desire to perform oral sex on Sophia and describing in detail what he would do to her and how he would make her body respond. When Sophia said that she should go to bed, they stopped texting for the night. Sophia resumed the conversation with Panebianco at 12:47 p.m. the following day by messaging "Heyy [sic]." After the two exchanged small talk, Panebianco asked Sophia what she was doing later that night and told her he would be working until 8 p.m. Sophia responded that she would wait until then, and Panebianco replied, "I would rather go to my house instead of your aunt's house." Sophia said, "I might be okay with that as long as you bring me back and [do] not kidnap me." Panebianco assured her, "You will be safe and I will pick you up and bring you home in a decent time." After additional conversation, Panebianco asked what time Sophia could go out that night. Sophia told Panebianco that her aunt would be leaving the home around 4 p.m. When Panebianco asked Sophia how long she could stay out, Sophia said that she had to be home by 6:00 the following morning. Again, Panebianco expressed concern that Sophia 4 was "either with the police or working with the police," and he emphasized his worry about going to jail for being with a minor. He told Sophia that she "could be dangerous . . . but so much fun." He said he would not go to Sophia's aunt's house to pick her up but agreed to meet Sophia at a sub shop within walking distance of her aunt's home. When he arrived later that evening, he was arrested and charged. Our review of an order that grants a defendant's motion to dismiss is de novo. State v. Bennett, 111 So. 3d 943, 944 (Fla. 2d DCA 2013). "The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute." Bell v. State, 835 So. 2d 392, 393-94 (Fla. 2d DCA 2003) (quoting State v. Pasko, 815 So. 2d 680, 681 (Fla. 2d DCA 2002)). When considering a defendant's motion to dismiss, "the State is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant." Id. at 394 (quoting Pasko, 815 So. 2d at 681). "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." DeMare v. State, 298 So. 3d 1269, 1274 (Fla. 2d DCA 2020) (quoting Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993)). Florida Rule of Criminal Procedure 3.190(c)(4) "provides for dismissal of a charge against a defendant when '[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.' " Dixon v. State, 112 So. 3d 721, 722-23 (Fla. 2d DCA 2013) (alteration in original) (quoting State v. Yarn, 63 So. 3d 82, 84 (Fla. 2d DCA 2011)). Counts I and II arose from Panebianco's alleged violations of section 847.0135(3)(a) and (4)(a). Section 847.0135(3)(a) prohibits the 5 use of computer services or devices that are capable of electronic data storage or transmission to "[s]educe, solicit, lure, or entice, or attempt to solicit, lure, or entice, a child or another person believed by the person to be a child" to engage in unlawful sexual conduct. Section 847.0135(4)(a) prohibits traveling to meet a minor for those same purposes. As to count I, the trial court found that the facts do not show that Panebianco solicited or attempted to solicit unlawful sexual activity. As to count II, the trial court found that "the purpose of meeting was to get something to eat as there was no discussion that sexual activity would occur." In coming to these conclusions, the trial court relied upon Randall v. State, 919 So. 2d 695 (Fla. 4th DCA 2006). However, that case is distinguishable. In Randall, Willie Randall was charged with lewd or lascivious battery, lewd or lascivious molestation, and lewd or lascivious conduct by way of solicitation after he allegedly told A.J., a fourteen-year-old girl, that he wanted to "lick her on her vagina," and he touched her on her vagina with his hand. Id. at 695-96. He was found not guilty of the battery and molestation charges but was convicted of lewd or lascivious conduct by way of solicitation. Id. at 695. On appeal, Randall argued that the alleged statement he made to A.J. that he wanted to lick her vagina was insufficient to support his conviction. Id. at 696. The Fourth District agreed and reversed his conviction. Id. at 697. The court recognized that the crime of solicitation is described as follows: A person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation. . . . 6 Id. at 696 (quoting § 777.04(2), Fla. Stat. (2003)). The court noted that "Randall did not ask A.J. to engage in a sexual act, but merely told her what he would like to do to her." Id. at 697. The court concluded that the victim's "testimony that Randall 'wanted' to lick her vagina was not an act of solicitation and the state, as a matter of law, failed to elicit sufficient competent evidence to sustain" his solicitation conviction. Id. Unlike Randall, Panebianco's charges encompassed seducing and enticing in addition to solicitation. Further, Panebianco's statements to Sophia were far more extensive than the sole comment Randall made to A.J. that he wanted to lick her vagina. See Randall, 919 So. 2d at 696. Among other things, Panebianco told Sophia how he likes to treat and spoil a woman, loves to "please with [his] tongue," and would do anything Sophia would like and more, specifically describing how he would perform oral sex on her. After Sophia said she was a virgin, he stated, "I would like to be the first guy." Multiple times he described in graphic detail how he would arouse her and what they could do laying together with their naked bodies pressed one against the other. Panebianco emphasized that he was "a lot of fun to be with" and promised Sophia that she "will love" what he will do to her. But not only did Panebianco describe what he wanted to do sexually to and with Sophia, he repeatedly asked her to be explicit and tell him what she would do to him. As discussed previously, the State is entitled to the most favorable construction of the evidence. See Bell, 835 So. 2d at 394; Pasko, 815 So. 2d at 681. Based on the entirety of the communications, we have no difficulty concluding that the evidence, construed most favorably to the State, shows that Panebianco was seducing, soliciting, or enticing Sophia to perform a sex act. And even if we were to conclude that the evidence 7 is not sufficient to establish solicitation, it is sufficient to establish that Panebianco was seducing or enticing Sophia to engage in unlawful sexual activity. See State v. Murphy, 124 So. 3d 323, 329 (Fla. 1st DCA 2013) (concluding that even if the statements at issue did not establish solicitation, they established luring or enticing), quashed on other grounds, No. SC13-2068, 2016 WL 1668953 (Fla. Apr. 27, 2016). Thus, we cannot agree with the trial court's conclusions that the facts only showed what Panebianco would "want to do" and that the purpose of Panebianco and Sophia meeting was solely "to get something to eat." Instead, the evidence is sufficient to establish a prima facie case of guilt that Panebianco used a computer to seduce, solicit, or entice a child to engage in unlawful sexual conduct and traveled to seduce, solicit, or entice a child to engage in unlawful sexual conduct. As a result, the trial court erred in dismissing the charges. The trial court also determined that Panebianco was subjectively entrapped by law enforcement. Section 777.201(1), Florida Statutes (2019), defines entrapment: 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. Under section 777.201(1), "the first question to be determined is whether law enforcement induced the defendant to commit the charged offense." DeMare, 298 So. 3d at 1273. If yes, the court must then determine "whether the defendant was predisposed to commit the charged offense." 8 Id. The final question is whether the defense of subjective entrapment should be submitted to a jury or decided by the court as a matter of law. Id. Although subjective entrapment is generally a question for the jury, it may be decided as a matter of law if there are no material facts in dispute, the defendant meets his burden of proof, and the State fails to rebut the evidence of lack of predisposition. Id. If there is a factual dispute or if reasonable persons could draw different conclusions from the facts, then the issue of entrapment must go to the jury. Hall v. State, 326 So. 3d 1188, 1190 (Fla. 1st DCA 2021); see also Munoz, 629 So. 2d at 100. "Inducement is defined as including 'persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy[,] or friendship.' " State v. Lopez-Garcia, 356 So. 3d 857, 860 (Fla. 2d DCA 2022) (alteration in original) (quoting Rivera v. State, 180 So. 3d 1195, 1197 (Fla. 2d DCA 2015)). "Inducement cannot be found by prompting or creating an opportunity." Id. (quoting State v. Harper, 254 So. 3d 479, 486 (Fla. 4th DCA 2018)). "[I]nducement refers to government conduct that persuades a person to turn 'from a righteous path to an iniquitous one.' " Marreel v. State, 841 So. 2d 600, 603 (Fla. 4th DCA 2003) (quoting United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994)). The State does not challenge the trial court's finding that Panebianco was induced to commit the charged offenses. However, it argues that Panebianco was predisposed to commit them. "Predisposition refers to 'whether the accused was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense.' " Lopez-Garcia, 356 So. 3d at 864 (quoting Harper, 9 254 So. 3d at 486). "Predisposition . . . focuses upon whether the defendant was an 'unwary innocent' or, instead, an 'unwary criminal' who readily availed himself of the opportunity to perpetrate the crime." Id. (alteration in original) (quoting Jones v. State, 114 So. 3d 1123, 1126 (Fla. 1st DCA 2013)). "The defendant bears the initial burden of proving a lack of predisposition. However, when the defendant produces evidence of a lack of predisposition, the burden shifts to the State to rebut the evidence beyond a reasonable doubt." DeMare, 298 So. 3d at 1273. "The state may prove predisposition with evidence of 'the defendant's prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime.' " Jones, 114 So. 3d at 1126 (emphasis added) (quoting State v. Casper, 417 So. 2d 263, 265 (Fla. 1st DCA 1982)). "While 'care must be taken in establishing the predisposition of a defendant based on conduct that results from the inducement,' post- inducement acts and statements can, in appropriate circumstances, be relevant to prove that the defendant was predisposed to commit the crime before he was induced to do so." Blanco v. State, 218 So. 3d 939, 943 (Fla. 3d DCA 2017) (quoting Munoz, 629 So. 2d at 99). A jury question exists as to predisposition when there are disputed facts or when reasonable people may reach different conclusions from the facts. Munoz, 629 So. 2d at 100. We note that this case is tangentially related to both DeMare and Lopez-Garcia as all three cases arise out of similar sting operations. In DeMare, we reversed DeMare's judgment and sentence for traveling to meet a minor in violation of section 847.0135(4)(a), Florida Statutes (2017), "because the undisputed facts fail[ed] to rebut DeMare's 10 subjective entrapment defense." 298 So. 3d at 1271. There, DeMare communicated with "Amber," a fictitious eighteen-year-old woman whose profile was created by law enforcement on a dating website. Id. A detective was acting as Amber throughout the communications. Id. Amber and DeMare communicated online as adults for four days, and their communications became more intimate as they planned to meet. Id. Only after their plans had become concrete did Amber admit that she was only fourteen years old. Id. at 1272. After learning that Amber was fourteen, DeMare tried to end their communications, but Amber suggested and DeMare agreed that they could remain friends. Id. Even so, he emphasized that the two could not have sex because it would be illegal. Id. The parties continued to communicate, and "DeMare vacillated from sexual innuendo about their upcoming meeting to suggesting the couple just hang out as friends and smoke pot." Id. However, Amber "continued to press DeMare to make sexual comments, encouraging him by telling him how excited she was, asking for specifics, and asking if he had condoms. When DeMare reverted to talking about meeting as friends, Amber used various tactics to change his mind." Id. DeMare was arrested after pulling into the driveway of the address Amber provided to him; however, he was not carrying drugs or condoms. Id. On appeal, we determined that DeMare satisfied his burden by presenting evidence of a lack of predisposition and that the State failed to establish beyond a reasonable doubt that DeMare "was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense." Id. at 1273 (quoting Munoz, 629 So. 2d at 99). We recognized that DeMare did not have a prior record of offenses against minors, there was no evidence presented that he was ever investigated 11 for such offenses, and he only contacted Amber after responding to an eighteen-year-old's profile on a dating website. Id. We concluded that DeMare established that he was induced to commit the charged offense, that the undisputed evidence failed to rebut his subjective entrapment defense, and that the defense should have been decided as a matter of law. Id. at 1274-75. In Lopez-Garcia, this court distinguished the facts of DeMare to conclude that Lopez-Garcia's defense of subjective entrapment should have been presented to the jury rather than decided as a matter of law. Lopez-Garcia, 356 So. 3d at 859, 865 n.3. Lopez-Garcia was charged with the same crimes as Panebianco as well as a charge for transmission of material harmful to minors. Id. at 859. Lopez-Garcia communicated with an undercover officer who was acting as "Ashlie." Id. at 860. Ashlie's online profile indicated that she was twenty-one years old; however, a day after the parties began communicating by text messages, Ashlie told Lopez-Garcia that she was actually fourteen-years old. Id. Lopez-Garcia sent Ashlie sexually explicit messages including a picture of his penis. Id. at 860-62. After communicating over the course of two days, Lopez-Garcia agreed to go to Ashlie's house. Id. at 863. He texted Ashlie when he arrived, and he was subsequently arrested and charged. Id. He moved to dismiss the charges against him, and the trial court granted the motion and dismissed the charges, concluding that Lopez-Garcia was subjectively entrapped by law enforcement. Id. at 859. On appeal by the State, we reversed the trial court's order and remanded for further proceedings. Id. at 865-66. We noted that Lopez- Garcia "met his initial burden of establishing a lack of predisposition to commit the charged offenses by showing that he had never been investigated for or charged with such offenses in the past," but we 12 concluded that the State "rebutted his lack of predisposition by presenting evidence of Lopez-Garcia's conduct during the text communications between himself and the undercover officer." Id. at 864. We recognized that while Lopez-Garcia initially told Ashlie that they could only chat and not meet after learning she was fourteen, he then "asked her several times to send nude photos of herself, repeatedly steered the conversation in a sexual direction—often using vulgar, explicit language—and sent her what were arguably unsolicited penis photos." Id. at 865. We concluded that the State's evidence "created an issue of fact as to whether Lopez-Garcia was predisposed to commit the charged offenses independent of any action by the undercover officer." Id. Here, the trial court erred in finding that Panebianco was subjectively entrapped. We recognize that Panebianco showed a lack of predisposition based on there being no prior record of his committing any offenses against minors and there was no evidence that he was ever investigated for or engaged in such offenses. See DeMare, 298 So. 3d at 1273; see also Lopez-Garcia, 356 So. 3d at 864. However, like in Lopez- Garcia, while the content of the communications between Panebianco and Sophia are not in dispute, those communications do not conclusively establish Panebianco's lack of predisposition to commit the charged offenses. At a minimum, reasonable individuals could draw different conclusions as to predisposition based on those communications. Thus, a jury should have resolved the issue of predisposition. See Hall, 326 So. 3d at 1190. The texts demonstrate that Panebianco readily engaged in sexual discussions with Sophia, a girl he believed was fourteen years old. While he expressed fear of Sophia being a member of law enforcement or 13 working for the police, his statements reflect a fear of being caught rather than an unwillingness to engage in sexual relations with her. For instance, while Panebianco told Sophia that he would "not be specific in a text or on the phone" and clarified that "[i]f [she was] an adult it would be different," twenty minutes later Panebianco sent her sexually explicit and graphic messages and asked Sophia for a picture of her body. Panebianco continued to make sexually explicit comments, expressing his desire to be the first person with whom Sophia would have sex and describing the sex acts he wanted to perform on her. He emphasized that he would not hurt her and that she would love whatever he did to her, and he repeatedly asked her what she would do to him. While he refused to pick Sophia up at her aunt's home, he made clear that his house was available to them. Like in Lopez-Garcia, by presenting evidence of the communications between Panebianco and Sophia, "the State created an issue of fact as to whether [Panebianco] was predisposed to commit the charged offenses independent of any action by the undercover officer." 356 So. 3d at 865. Therefore, the issue of predisposition should have been resolved by the jury and not decided as a matter of law. We also disagree with the trial court's determination that Panebianco was objectively entrapped. " '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.' " State v. Laing, 182 So. 3d 812, 815 (Fla. 4th DCA 2016) (quoting State v. Henderson, 955 So. 2d 1193, 1194 (Fla. 4th DCA 2007)). Courts must look at the totality of the circumstances and balance the rights of the defendant against the government's interest in 14 combatting crime. Id. at 816 (citing Bist v. State, 35 So. 3d 936, 939 (Fla. 5th DCA 2010)). " '[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." Id. (alterations in original) (quoting State v. Blanco, 896 So. 2d 900, 902 (Fla. 4th DCA 2005)). Here, extensive testimony was presented as to how this sting operation was conducted, and the interactions between law enforcement and Panebianco were not so egregious to amount to a denial of due process. And "creating nothing more than an opportunity to commit a crime is not prohibited." Laing, 182 So. 3d at 817 (citing cases). Based on the totality of the circumstances here, we conclude that Panebianco was not objectively entrapped. In summary, sufficient evidence exists to establish a prima facie case of guilt as to the charged offenses. Further, the record satisfies us that neither subjective entrapment nor objective entrapment principles support the trial court's order dismissing the charges against Panebianco. We reverse the trial court's order granting Panebianco's motion to dismiss as to all charges and remand for further proceedings. Reversed and remanded. SMITH and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 15