A Question Can Be A Felony

P1040115Lawyers fight about words.  And, even if we agree on the words used, we often disagree about the legal consequences of those words.  Today’s case is an example of just such a dispute.  In Tulier v. State, the defendant was convicted of attempted sexual activity with a minor for asking an illegal question.  147 So. 3d 1037 (Fla. 2nd DCA 2014).  According to the appellate court’s opinion, here’s what happened: “While driving an SUV, Tulier stopped at a stop sign.  The victim was on his bicycle in the crosswalk in front of Tulier.  As the victim passed, Tulier called out to him through his open passenger-side window.  The victim approached the passenger side of the vehicle walking but still astride his bicycle.  Tulier asked him through the open SUV window what his name was and how old he was.  The victim said his name and said that he was seventeen, although he was still sixteen at the time.  Tulier then asked the victim if he wanted to make $400, to which the victim asked how.  Tulier said, “Blow me.”  The victim immediately called his father on his cell phone, and his father told him to get the SUV’s tag number.” Id.

So, Tulier asked an underage boy to have sex with him, and that question led to a conviction for a felony sex offense.  Attempted sexual activity with a minor carries a lifetime of sex offender registrations, so it was important that Tulier’s defense attorney reduce the charge to something less serious—a solicitation.  Yes, there is a big difference between an attempt and a solicitation.  In general, an attempt goes beyond mere words into some overt act, whereas a solicitation is typically words only (however, ‘mere’ words can get you a conspiracy charge, a story for another day).

During Tulier’s trial, his defense attorney moved to dismiss the attempted sex charge, arguing that the State presented no overt act constituting an “attempt”.  The trial judge denied him, reasoning that “the overt act in furtherance of the commission of the crime was Tulier’s calling the victim over to him, asking for oral sex, and offering money in exchange for oral sex.” Id. at 1038.  Did the appeals court agree with this decision?  They started with a look at the “attempt” statute, found in Section 777.04(1), which reads that “a person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt”. [emphasis added]

Believe it or not, Tulier is not the first person to ask for sex with a minor.  Shocking, I know.  Florida’s Supreme Court addressed this very issue back in 1950, in the case of Pittman v. State.  47 So. 2d 691 (Fla. 1950).  Pittman was convicted of attempted sexual intercourse with an unmarried female of previous chaste character under the age of eighteen years.  In other words, statutory rape.  Pittman’s offer didn’t involve $400 cash, he started out asking “to take [her] to a dance; I want to take you to the movies . . . and called her endearing names, and upon such invitations being refused by the [victim] he . . . then asked and invited the [victim] to go out of the building in which they were both then working into adjoining woods for the purpose of having sexual intercourse.” Pittman at 691.  The Florida Supreme Court overturned Pittman’s attempted statutory rape conviction, holding that “the facts alleged and established in this case constitute, at most, only solicitation—a mere preparation. . . there was no allegation in the information, nor was any proof adduced, of an overt act sufficient to establish a criminal attempt.” Id. at 692.

The appellate court in Tulier applied the reasoning found in Pittman, holding that “Tulier essentially asked the victim for oral sex in exchange for $400.  And while the trial court made much of the fact that he called the victim over in order to ask the question, such only amounts to preparation.  The evidence does not support a conviction for attempted sexual activity with a minor.  We therefore must reverse Tulier’s conviction on that count.” Id. at 1039.

And there you have it.  Mere preparation to commit a crime is not an attempt.

[PIC: Once again, I couldn’t find anything appropriate for this topic, so I settled on a pic I took in Maui.  I have better pics from Maui… it’s hard to take a bad pic there]