A Downward Departure for an Unsophisticated Crime

Thumbnail image for IMG_0205.JPGAs you know, judges have an obligation to hand down “just” sentences. This is not an easy task, because our elected officials have meddled in the sentencing process, and created laws that are simply too harsh for the crime committed. When judges are confronted with a potential sentencing injustice, they have an escape valve known as a downward departure. In essence, if a defense attorney can convince the judge that certain mitigating circumstances are present, a trial judge may “downward depart” from the sentencing guidelines (so, if the legislature says the defendant must serve 10 years prison, the judge may ‘downward depart’ to give something lower, like 5 years prison, for reasons discussed below).

Sex offenses are the unofficial targets of ridiculous sentencing guidelines. For those of you who pay too much in taxes (all of you who actually pay taxes?), rest assured that sex offenses are that giant sucking sound Ross Perot thought he heard coming out of Mexico. But hey, why pay teachers the money they deserve when we can, instead, spend another $43,285/year housing a guy in prison for looking child porn? The sentence for possessing several hundred child pornographic images will exceed the minimum mandatory sentence given to a child molester, a rapist, and even some murderers (for more info, see my article found here).

How can we possibly stop the insanity? Judges look to the downward departure rules to help impose more reasonable sentences. To understand the kind of battles that ensue on the rare occasion that a judge departs on a sex case, let’s take a look at the downward departure found in State v. Davis, 141 So. 1230 (1st DCA 2014). Here’s what happened. Davis responded to an adults only dating website, specifically, to a 32 year old’s ad claiming that she and her “little sister” were in town, looking to have fun tonight. Naturally, the ad makes no mention as to how old the 32 year old’s sister really is, so Mr. Davis answers the ad. And, you know the rest of the story, but I’ll say it anyway. The 32 year old was actually a detective of unknown age (though, I presume of legal age, it’s hard to make detective by age 16). And, the promised ménage a trois (all the French I know, plus a few lines out of “Lady Marmalade”) is only twisted into something criminal once the detective has Davis hooked.

So, the undercover detective roped Davis into a two hour conversation regarding what the two were going to accomplish sexually once they finally met up. I can only assume this detective was proud of herself for leading on a naive, lonely guy like Davis. Davis had lived at home with his mom his entire life. The trial court correctly concluded that Davis was “naïve, easily led” and “guided throughout the process by the undercover officers” (the dissent disagrees). Just in case you were thinking Davis’s lady skills were on the level of sophistication as those of James Bond, take a peek at this classic line of dialogue, in which Davis boasts that he’s “studied on women for 13 years and like I know everything, Kama Sutra, G-Spot, hot spot, best way to do oral, best way to finger. Yeah, I used to teach ladies how to have orgasms.” Id. at footnote 6. Now, first of all, Davis committed THE cardinal sin by bragging about his sexual talent. I believe a man should set the bar low, and avoid such bragging at all costs. But hey, that’s just me. Anyway, once the detective whipped Davis up into a frenzy, the detective adds a criminal element to the case, noting that her “little sister” is actually 13 years old. Davis is already hooked, and the undercover puts the alleged 13 year old on the phone for just two minutes of awkward nonsense, but the crime of traveling to meet a minor is all but filed with the clerk of court at this point–it’s just a matter of Davis swinging by the house with condoms, and calling “To Catch a Predator” to tell them to broadcast the downfall of one more “naïve, easily led” horny guy. Congratulations detective, you’ve made the world a safer place.

Davis enters a plea to three crimes: 1) using a computer service to solicit a person believed to be a thirteen-year-old girl to engage in unlawful sexual conduct, 2) traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child, and 3) unlawful use of a two-way communications device. He should have received at least 45 months prison, but the judge gave him a downward departure to 18 months prison, followed by eight years of sex offender probation. The prosecutor appealed the downward departure, and here’s the analysis as to what happened on appeal.

In order to get a downward departure so as to avoid the mandatory 45 months on this case, Davis’ defense attorney needed to allege certain mitigating circumstances. These circumstances are created by the statute found in section 921.0026. In this case, the defense attorney argued that Davis could be given a lower sentence because “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse” (section 921.0026(j)). A downward departure based upon subsection (j) has three requirements: first, the crime must be an isolated incident. The State agrees that this was an isolated incident for Davis. Second, the defendant must show remorse. Yep, Davis was showing remorse, so we’re almost home. But wait, the state disputes the third prong, that the crime “was committed in an unsophisticated manner”.

The appeals court upheld the 18 months prison based upon a downward departure, finding that the crime was committed in an unsophisticated manner. Believe it or not, the dissenting judge disagreed–and found this crime to be quite sophisticated. So, just in case we’ve forgotten the level of sophistication presented here by Mr. Davis, let me refresh you with a bit of dialogue between the undercover detective and Davis: “I’ve studied on women for 13 years and like I know everything, Kama Sutra, G-Spot, hot spot, best way to do oral, best way to finger. Yeah, I used to teach ladies how to have orgasms.” Id. at footnote 6. Really? This is sophisticated? Sure, the dissenting judge wanted Davis to serve more prison time on this, and we’ve almost grown accustomed to some appellate judges bending over backwards to give sex offenders harsh sentences, but Davis simply was not sophisticated in his approach. The dissent merely recited the facts of the case, and argued that a few phone calls and some condoms constituted a sophisticated crime. By the dissent’s logic, there is no such thing as a downward departure for a traveling to meet a minor charge–because the mere use of a phone a couple of times and the purchase of condoms is enough to qualify as “sophisticated” by their broad definition.

Keep in mind, the government created the ad in this case. The government answered the phone. The government’s ad never mentioned a 13 year old child. The government threw a minor child into the mix once the adult female had Davis hooked. And the minor child doesn’t quite make sense when the ad is for a 32 year old women and her sister. Sure, if the ad was for an 18 year old girl and her sister, we’d have a different assumption. The government manipulated the situation so as to create this crime. So, the government can pat itself on the back now that they’ve rid society of one more potential child molester–a guy not even looking for it. One day, it would be nice if the government would spend more time detecting crime rather than creating it.

[PIC: I couldn’t come up with an appropriate photo, so you get Sammy, Chief of Office Security, he is responsible for much of the barking you hear in the background when I talk on the phone…I know, very professional]