DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

JAMAL RASHAD LAING,

Appellee.

No. 4D14-1705

[January 6, 2016]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Indian River County; Robert L. Pegg, Judge; L.T. Case No. 312013CF

001361A.

Pamela Jo Bondi, Attorney General, Tallahassee, Monique Rolla and 

Georgina Jimenez-Orosa, Assistant Attorneys General, West Palm Beach, 

for appellant.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant 

Public Defender, West Palm Beach, for appellee.

KLINGENSMITH, J.

The State of Florida (the “State”) appeals an order granting Jamal 

Rashad Laing’s (“appellee”) motion to dismiss the charges of traveling to 

meet a minor for unlawful sexual activity (“count I”) and lewd computer 

solicitation of a child (“count II”). We find that the trial court erred in 

granting appellee’s motion to dismiss the charges under both the 

subjective and objective standards of entrapment, and reverse.

On October 9, 2013, a school resource officer observed appellee inside 

a parked car in a local park with a minor female (“S.G.”). According to 

the resource officer, appellee was on top of S.G., kissing her.

At the time, appellee was nineteen years old and S.G. was fifteen. 

After the officer intervened and spoke with S.G., she told him that during 

the consensual encounter appellee attempted to touch her hip, breast, 
2

and groin areas.1 The officer released appellee without arresting him 

after a warrant check came back clean. 

The resource officer then transported S.G. back to school to interview 

her. During the interview, she told him that she and appellee had 

multiple conversations after meeting on Facebook, and that appellee had 

picked her up that day after school. It was also revealed that appellee 

and S.G. had exchanged nude pictures of themselves in those Facebook 

conversations. S.G. showed the resource officer her phone containing 

numerous text messages between herself and appellee, and in one 

message appellee specifically stated that he wanted S.G. to perform oral 

sex on him.

The case then was turned over to a detective with the Indian River 

County Sheriff’s Office for further investigation, who discovered that 

appellee had no criminal history. Appellee did not call, text, or otherwise 

try to contact S.G. during the week following their encounter.

Using S.G.’s phone, the detective initiated contact with appellee on 

October 16 by texting him the word “hey.” Appellee responded by asking 

if S.G. had gotten in trouble for the incident. After some innocent 

conversation between appellee and the detective posing as S.G., appellee 

asked S.G. if she thought they would have had sex if they had not been 

1 We note that although S.G. stated she did not let appellee touch her in any of 

these areas, the actions described by S.G. were sufficient to justify law 

enforcement’s subsequent investigation as they could have been construed as

an attempt to commit a lewd or lascivious molestation under section 800.04(5), 

Florida Statutes:

(5) LEWD OR LASCIVIOUS MOLESTATION.—

(a) A person who intentionally touches in a lewd or lascivious 

manner the breasts, genitals, genital area, or buttocks, or the 

clothing covering them, of a person less than 16 years of age, or 

forces or entices a person under 16 years of age to so touch the 

perpetrator, commits lewd or lascivious molestation.

. . . .

(c)2. An offender 18 years of age or older who commits lewd or 

lascivious molestation against a victim 12 years of age or older but 

less than 16 years of age commits a felony of the second degree, 

punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 800.04(5), Fla. Stat. (2013).
3

interrupted. The detective responded “maybe,” and inquired whether or 

not the fact that she was only fifteen would have been a problem for 

appellee. When questioned as to why she was asking him that question, 

the detective responded (as S.G.) that it was to make sure appellee was 

comfortable with her age, and that it was not a problem with her if it was 

not a problem with him. Appellee stated that he did not care about her 

age.

Appellee then texted that he had been ready to have sex with S.G. 

during the first encounter, to which the detective responded, “too bad 

that cop showed up.” Appellee replied that he knew they should not 

have gone to the park, and that they should have gone to a different 

location. In response, the detective told appellee, “I no [sic] a place where 

nobody would see us.” Arrangements then were made to have appellee 

meet S.G. at a restaurant the following day.

Appellee confirmed he would meet S.G., and stated that he wanted 

her to perform oral sex on him. He also stated that he would show up 

only if she would give him some gas money. Appellee was arrested upon 

his arrival at the restaurant.

After being read his Miranda rights, appellee confessed that he had 

been texting S.G. and that he had gone to the restaurant to see her. He 

admitted that he knew S.G. was fifteen, and although he originally 

intended to have sex with S.G., his aunt dissuaded him from doing so 

because he could get in trouble.2 During the drive to jail, appellee also 

stated that he would have had sex with S.G. if not interrupted, although 

it is unclear whether he meant that he would have done so on the day of 

his arrest or in the park a week earlier. 

Appellee moved to dismiss his charges based on objective and 

subjective entrapment by law enforcement. After an evidentiary hearing, 

the court granted appellee’s motion, finding that he was entrapped as a 

matter of law under the objective standard of entrapment because his 

due process rights were violated. The trial court also found that appellee 

was entrapped under the subjective standard because of active 

inducement by the detective, and because there was no evidence of 

predisposition on the part of appellee. The State now appeals from that 

order of dismissal.

2 Despite his professed change of heart, a deputy testified that he found a 

condom in appellee’s pocket.
4

The Entrapment Defense

In Florida, the defense of entrapment is bifurcated into objective and 

subjective variants:

There are two different theories of entrapment. “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.” Davis v. State, 937 So. 2d 300, 302 (Fla. 4th 

DCA 2006) (quoting State v. Blanco, 896 So. 2d 900, 901 

(Fla. 4th DCA 2005)). Subjective entrapment, on the other 

hand, “is applied in the absence of egregious law 

enforcement conduct and focuses on inducement of the 

accused based on an apparent lack of predisposition to 

commit the offense.” Id.

State v. Henderson, 955 So. 2d 1193, 1194 (Fla. 4th DCA 2007).

Section 777.201, Florida Statutes, provides:

(1) 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.

(2) A person prosecuted for a crime shall be acquitted if 

the person proves by a preponderance of the evidence that 

his or her criminal conduct occurred as a result of an 

entrapment. The issue of entrapment shall be tried by the 

trier of fact.

§ 777.201, Fla. Stat. (2013) (emphasis added).

We have defined inducement as “government conduct creating a 

substantial risk that an otherwise law-abiding citizen would commit an 
5

offense, including persuasion, fraudulent representations, threats, 

coercive tactics, harassment, promises of reward, or pleas based on need, 

sympathy or friendship.” Farley v. State, 848 So. 2d 393, 395 (Fla. 4th

DCA 2003) (quoting United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 

1994)).

Objective Due Process Standard

Entrapment under the objective due process standard requires 

“conduct of law enforcement agents [that] is so outrageous that due 

process principles would absolutely bar the government from invoking 

judicial processes to obtain a conviction.” Tercero v. State, 963 So. 2d 

878, 883 (Fla. 4th DCA 2007) (quoting State v. Glosson, 462 So. 2d 1082, 

1084 (Fla. 1985)).

In considering objective entrapment, courts must look to the totality 

of the circumstances, focusing on “whether the government conduct ‘so 

offends decency or a sense of justice that judicial power may not be 

exercised to obtain a conviction.’” Hernandez v. State, 17 So. 3d 748, 

751 (Fla. 5th DCA 2009) (quoting State v. Blanco, 896 So. 2d 900, 901 

(Fla. 4th DCA 2005)). “It is a balancing test; the court must weigh the 

rights of the defendant against the government’s need to combat crime.” 

Bist v. State, 35 So. 3d 936, 939 (Fla. 5th DCA 2010). The justification 

lies in stunting prosecutions premised upon “methods offending one’s 

sense of justice.” Munoz v. State, 629 So. 2d 90, 98 (Fla. 1993).

“Cases finding a due process violation based on outrageous 

government conduct have one common thread: affirmative and 

unacceptable conduct by law enforcement or its agent,” Bist, 35 So. 3d at 

940, that “entices or facilitates the commission of the crime.” Schwartz v. 

State, 125 So. 3d 946, 951 (Fla. 4th DCA 2013).

When evaluating this standard, the trial court must, however, “limit 

its consideration to the conduct of law enforcement.” Blanco, 896 So. 2d 

at 902. “[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.3 Id.

3 We have in other cases mentioned factors related to predisposition in the due 

process analysis, but it appears those factors were not dispositive of the issue of 

whether there was objective entrapment. See Mendel v. State, 903 So. 2d 1027, 

1029 (Fla. 4th DCA 2005) (“The defendant had prior felonies, and the CI had 
6

For example, the Florida Supreme Court has found objective 

entrapment in cases where law enforcement officers provide informants 

with a financial stake in procuring convictions, or require informants to 

effectuate arrests within a defined timeframe, because both scenarios 

greatly incentivize the informant “not only to make criminal cases, but 

also to color . . . testimony or even commit perjury.” Glosson, 462 So. 2d 

at 1085 (barring law enforcement from using contingency fees, wherein 

informants would receive ten percent of all civil forfeitures in exchange 

for convictions); see also State v. Hunter, 586 So. 2d 319, 320, 322 (Fla. 

1991) (citation omitted) (finding objective entrapment where the 

informant’s “contract” required in part that he obtain “at least four 

kilograms of cocaine within a certain period of time”).4

Objective entrapment also exists where law enforcement otherwise 

employs impermissible tactics to create the offense. See, e.g., State v. 

Williams, 623 So. 2d 462, 463 (Fla. 1993) (holding that law enforcement 

violated the due process clause of the Florida Constitution by 

manufacturing crack cocaine to be used in reverse-sting operation);

Madera v. State, 943 So. 2d 960, 961-62 (Fla. 4th DCA 2006) (holding 

that law enforcement violated due process clause of the Florida 

Constitution where confidential informant promised the defendant an 

intimate relationship if he helped her obtain narcotics).

Appellee argues that the detective’s conduct in this case was 

egregious because the agent initiated contact with him via text message. 

However, creating nothing more than an opportunity to commit a crime 

 

been instructed to approach only persons he had previously had drug business 

with or who were known to deal in drugs. Under these facts, there was no due 

process violation.” (emphasis added)); see also Nadeau v. State, 683 So. 2d 504, 

506 (Fla. 4th DCA 1995) (“First, the agents and officers did not actively monitor 

Antar’s repeated contacts with Nadeau nor did they prepare any notes on their 

contact with Antar. Nadeau had no criminal history and the officers 

acknowledged that they knew of no drug activity prior to his involvement in this 

case. Therefore, we hold that the law enforcement conduct in this case was so 

outrageous as to constitute a denial of appellant’s due process rights.”

(emphasis added)).

4 Hunter was decided under the objective test of entrapment set forth in Cruz v. 

State, 465 So. 2d 516 (Fla. 1985), Hunter, 586 So. 2d at 322, but that test was 

abolished by section 777.201. See Munoz, 629 So. 2d at 99. Nonetheless, the 

objective entrapment test from Cruz is essentially the same concept as the due 

process entrapment defense. See id. at 102 (Kogan, J., concurring).
7

is not prohibited. See Bist, 35 So. 3d at 940 (finding no due process 

violation where law enforcement set up a sting operation in which a 

decoy entered an online chat room purporting to be a minor, waited for 

someone to solicit sexual activity, and allowed the defendant to set up a 

meeting intending to engage in sexual activity with a 13-year-old);

Blanco, 896 So. 2d at 901-02 (ruling undercover officer’s conduct in 

approaching the defendant at a gay bar and telling the defendant that he 

liked to “party,” which he explained as meaning the use of cocaine, was 

not so outrageous as to warrant dismissal of charges against the 

defendant for providing crystal meth to the officer); Khelifi v. State, 560 

So. 2d 333, 333-34 (Fla. 4th DCA 1990) (holding no violation of due 

process where informant, who acted pursuant to a substantial assistance 

agreement, intentionally set up a large cocaine purchase by the codefendants; the informant did not make any “threats or persistent 

enticements causing the defendant to act contrary to a law abiding 

predisposition”); Gonzalez v. State, 525 So. 2d 1005, 1006 (Fla. 3d DCA 

1988) (finding no objective entrapment where the informant cajoled the 

defendant and called him ten or fifteen times to induce the meeting with 

the undercover officer).5

We have held in previous cases that repeated calls alone, absent any 

showing of threats or promises, is insufficient to constitute entrapment. 

See, e.g., Henderson, 955 So. 2d at 1195 (finding no inducement where 

informant, after years of no communication with defendant, placed a 

series of calls to the defendant to arrange a drug transaction); see also 

Quesada v. State, 707 So. 2d 808, 810 (Fla. 4th DCA 1998) (“Repeated 

calls alone do not necessitate a finding of entrapment.”). Here, there is 

no evidence that the detective prodded or coerced appellee into 

submitting to pressure to have sex with an underage female. Nor was 

there any type of law enforcement misconduct that we previously have 

stated violates a defendant’s due process rights by ensnaring the 

defendant to commit a crime, regardless of his predisposition. See 

Schwartz, 125 So. 3d at 951 (providing various examples).

Appellee asserts that this case is similar to Farley, where we held that 

the government’s manufacture of child pornography and assurances of 

protection from government interference, intended to lure defendant into 

purchasing such material, was objective entrapment which violated due 

process. 848 So. 2d at 398. We do not find the facts in Farley to be 

analogous to this case. The defendant in Farley, who was not a 

5 Gonzalez was also decided under the objective test of entrapment set forth in 

Cruz. See Gonzalez, 525 So. 2d at 1006.
8

registered sex offender, was initially contacted by law enforcement 

through a spam e-mail soliciting patrons for a fictitious pornography 

business. Id. at 394. The e-mail included repeated assurances that all 

communications and transactions would be shielded from government 

interference. Id. The defendant had never before contacted the source of 

the e-mail; Florida law enforcement found his e-mail address on a list 

compiled by a Texas taskforce. Id. Unlike the defendant in Farley, 

appellee was not targeted out of the blue, but instead: 1) had physical 

interaction with an underage minor in an encounter where the minor 

admitted that appellee attempted to touch her breasts, thighs, and groin 

areas; 2) had exchanged nude photographs with that same minor; and 3) 

was not solicited or coerced into agreeing to engage in sexual conduct 

with the minor.

Therefore, the Indian River Sheriff’s Officer did not target appellee as 

someone “not involved in an existing criminal undertaking in need of 

detection by law enforcement.” Id. at 397; see also Cline v. State, 958 So. 

2d 961, 965 (Fla. 4th DCA 2007) (“The circumstances, here, differ from 

those cases where objective entrapment was found. This is not a case 

where the defendant had no prior criminal history or involvement with 

drugs . . . .”); Mendel v. State, 903 So. 2d 1027, 1029 (Fla. 4th DCA 

2005) (“The defendant had prior felonies, and the CI had been instructed 

to approach only persons he had previously had drug business with or 

who were known to deal in drugs. Under these facts, there was no due 

process violation.”).

This case is not one where the crime was totally and completely 

orchestrated by law enforcement. The fact that appellee did not reinitiate contact with S.G. for a week after being interrupted on October 9 

is immaterial. Law enforcement’s text from S.G.’s phone of the word 

“hey” did not constitute a manufacture of the crime, nor was it so far 

removed from the precipitating event that there was a break in the chain 

of continuity of appellant’s conduct. Moreover, we are not persuaded 

that the detective’s comment that he knew “a place where no one would 

find [them]” amounts to egregious police conduct. As such, law 

enforcement’s actions did not rise to the level of outrageousness or 

egregiousness required to support a finding of objective entrapment on 

due process grounds. The trial court should have denied appellee’s 

motion to dismiss on the objective entrapment defense.
9

Subjective Standard

Application of the subjective standard codified in section 777.201 

requires a three-part test: 1) “whether an agent of the government 

induced the accused to commit the offense charged[;]” 2) if so, “whether 

the accused was predisposed to commit the offense charged[;]”and 

3) “whether the entrapment evaluation should be submitted to a jury.” 

Munoz, 629 So. 2d at 99-100. “The first two [parts] involve questions of 

fact and differing burdens of proof, and the third [part] addresses 

whether the issue of entrapment must be submitted to the jury or 

whether the issue can be decided by the judge as a matter of law.” Id. at 

99.

Regarding the first prong of the test, “the accused has the burden of 

proof and, pursuant to section 777.201, must establish this factor by a 

preponderance of the evidence.” Id. The court should move on to the 

second and third questions only if the defendant establishes inducement. 

See id.; see also Henderson, 955 So. 2d at 1195 (citing Munoz, 629 So. 

2d at 99).

Texting the word “hey” to appellee after a week of no contact with the 

victim is wholly insufficient to constitute inducement. In Henderson, this 

court found no inducement despite the fact that a government informant 

seeking methamphetamine called a defendant to whom the informant 

had not spoken for five or six years. 955 So. 2d at 1195. There, the 

defendant previously had sold drugs to and bought drugs from the 

informant. Id.

There was no evidence in this case that the detective induced appellee 

to agree to a sexual encounter. Rather, it was appellee who proposed 

meeting the minor once again to engage in the unlawful acts that 

previously had been interrupted, after the detective mentioned that he 

knew of a more private area. Appellee guided the conversation to sex on 

his own volition; the detective’s innocuous text message to start the 

conversation with appellee did not amount to a concerted effort to lure 

him into committing a crime, and neither did his statement regarding 

knowledge of a more secluded location. Therefore, appellee was not 

induced. See State v. Dickinson, 370 So. 2d 762, 763 (Fla. 1979) (“There 

is clearly no constitutional prohibition against a law enforcement officer 

providing the opportunity for a person who has the willingness and 

readiness to break the law.”).
10

Conclusion

Because the evidence shows that law enforcement did not induce 

appellee to commit the crimes charged, we need not address the other 

prongs of the subjective entrapment test. See Munoz, 629 So. 2d at 99; 

see also Henderson, 955 So. 2d at 1195. We reverse the trial court’s 

dismissal of counts I and II on the grounds that neither objective nor

subjective entrapment existed as a matter of law, and remand for 

proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.