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08 Aug 2018

Bahamian Not Guilty of Lewd Computer Solicitation and Attempted L&L Battery Based on Entrapment

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Indian River County Internet Crime Defense AttorneyA St. Lucie County jury found Lane Reynolds (not his real name) not guilty of lewd computer solicitation and attempted lewd and lascivious battery on August 1, 2018. The same jury found Reynolds guilty of unlawful use of a two-way communication device. This inconsistent verdict was, Attorney Jeffrey Garland believes, based upon government entrapment and jury instruction error. The conviction was set aside due to the jury instruction error on 8/6/18. At that time, Reynolds pled no contest to the unlawful use of a two-way communication device, which is a non-sex offender charge, receiving time served and probation in return.

The evidence and testimony showed that St. Lucie County Sheriff’s Office (SLCSO) investigators posted an “advertisement” on Craigs List, Treasure Coast Personals, in the Consensual Encounters chatroom. The undisputed evidence showed that anyone entering Consensual Encounters had to certify that they were 18 years of age or older. This advertisement did not reveal any information about a minor or about inappropriate activities with a minor. The advertisement was directed to any and all persons who might enter Casual Encounters.

SLCSO investigators made no effort to focus the advertisement on persons who might be interested in sexual activities with a minor. The advertisement stated “w4m”, which stood for, according to trial testimony, “woman for man”. “Woman”, argued the defense at trial, was a reference to a person of at least 18 years of age. SLCSO investigators induced unsuspecting individuals to reply by stating that the woman was “super cute”, “super bored”, “looking to make friends” and “all alone”. The advertisement invited anyone as follows: “Let me know if you want to hang out”.

Lane Reynolds was induced by this advertising to respond. The trial testimony established that investigators had no evidence that Reynolds was predisposed to commit criminal acts. The sole defense was entrapment.

Reynolds was a 25-year-old boxer from the Bahamas. He was visiting family in Florida. Reynolds spotted the ad and responded on 7/20/17 at 12:37:50 A.M.

The SLCSO investigator, called a “chatterer”, responded some 12 hours and 37 minutes later. Innocent chat took place between 1:14:30 P.M., and 1:41:35 P.M. (the “first round”). The chatter admitted that Reynolds had randomly responded to the ad, and that there was no evidence of Reynolds predisposition to commit any crime.

All texting ended, and there was no communication for a period of about one hour and 15 minutes. Even though police had developed no evidence of Reynold’s predisposition to commit a crime, the chatterer reinitiated contact at 2:56:41 P.M., on 7/20/18. The ensuing series of texts lasted approximately one hour and 53 minutes.

During this “second round” of texting, the chatterer indicated she was 15 years old. The chatterer admitted, on cross-examination, that the Consensual Encounter advertisement never mentioned the age of 15, and that an individual entering the Casual Encounter website would have to declare an age of 18 years or older. This second round of texts ended at 4:49:45 P.M., on 7/20/17. At no time during this second round of texting was there any discussion of sexual activity.

Even though there had been no discussion of sexual activity during either the first or second rounds of texting, the chatterer reinitiated contact with Reynolds after a hiatus of approximately three hours and 53 minutes. The “third round” of texting began at 8:42:51 P.M., on 7/20/17. The case agent would testify at trial that Reynolds first suggested sexual activity at 8:44:36 P.M., by making the statement: “Hey gorgeous”. The defense maintained that “gorgeous” was just an ordinary adjective which did not describe sexual activity. The chatterer did not testify that “gorgeous” meant sexual activity.

The defense maintained that the chatterer first mentioned sexual activity at 10:34:09 P.M., on 7/20/17, with the following statement: “idk im not interested in just talking”. Both the chatterer and the case agent admitted that the term “not interested in just talking” could be construed by some people as a reference to sexual activity. Both the chatterer and case agent asserted that “not interested in just talking” did not refer to sexual activity in this case. The evidence showed that Reynolds began texting about sexual activity about 55 seconds after the chatterer made the statement about “not interested in just talking”, which occurred during the third round of texting.

As part of setting up a meeting, the government used an adult female detective to talk with Reynolds during four separate phone calls. There was no evidence that the female detective attempted to simulate the voice of a 15-year-old teenager. The door of the apartment was opened by a 23-year-old female deputy, who did not appear to be under 18 years old.

During closing arguments, Indian River criminal defense lawyer Garland maintained that the government induced all members of the public to respond to an adult-themed advertisement placed onto an adult-only website. Garland argued that the government twice reinitiated texting with Reynolds, and that Reynolds did not text anything improper. Only after the government reinitiated a third round of texting did discussion of sexual activity take place. It was the chatterer, not Reynolds, who first brought up sexual activity, argued the defense.

Garland asserted that the events in this case establish government created crime. Since there was no evidence of predisposition, this was a case of entrapment.

The jury apparently agreed, finding Reynolds not guilty of lewd computer solicitation of a minor and attempted lewd and lascivious battery. There was, unfortunately, an undetected error in the written jury instruction. The jury instruction did not specifically state that entrapment applied to a lesser included offense. Earlier versions of the entrapment instruction did specify that the defense applied to unlawful use of a two-way communication device.

The trial court denied arguments that entrapment was established as a matter of law; and that the not guilty verdicts precluded a guilty on the lesser charge. After all, how could Reynolds be convicted of using a two-way communication device to commit a lewd and lascivious battery when he was found not guilty of attempting to commit a lewd and lascivious battery?

The trial court did grant a new trial. However, bond was set at $100,000, which made release from jail impossible. Reynolds decided to accept a plea to the non-sex charge of unlawful use of a twoway communication device. He received a sentence of “time served” and three years of probation. Reynolds was released from jail on 8/6/18, after court proceedings were finished.

Comment from a Indian River County Internet Crime Defense Attorney

The meanings of words usually depend upon the context in which they are used. To yell “fire” in a crowded theater, for example, might cause a stampede for the exits. To yell “fire” at a gun range might cause a different response. The response to “fire” in each example is related to the circumstance.

In Lane Reynold’s case, investigators maintained that “not interested in just talking” meant anything but sexual activity. The defense maintained that “not interested in just talking” meant a desire for action, not just words. The context of the inducement was an adult-only “hook up” website, so the action referred to sexual activity.

Police have a duty to ferret out crime and protect society. Police have a corresponding duty to not create crime or induce law abiding citizens into crime.

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