NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

PIERRE LUDOVIC DUCLOS-LASNIER, ) ) Appellant, ) ) v. ) Case No. 2D14-2415 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed April 1, 2016. Appeal from the Circuit Court for Manatee County; Charles E. Roberts, Judge. N. Adam Tebrugge of Tebrugge Legal, Bradenton, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, Susan M. Shanahan and Jason M. Miller, Assistant Attorneys General, Tampa, for Appellee.

SLEET, Judge.

Pierre Duclos-Lasnier chall enges his convictions and sentences for use of a computer to seduce, solicit, or entice a child to commit a se x act (count one); traveling to seduce, solicit, or entice a c hild to commit a sex act (coun t two); attempted lewd or lascivious battery on a victim twelve years old or older but younger than sixteen (count- 2 - three); and two counts of transmission of an image harmful to a minor (counts four and five). We affirm his convicti ons and sentences in counts two t hrough five for the

reasons discussed herein but reverse his conviction and sentenc e in count one because it violates the prohibition against double jeopardy. Duclos-Lasnier met the female victim, L.S., at a public tenni s court when her godmother approached him and inquired about tennis lessons for the victim. During their conversation, Duclos-Lasni er asked L.S.'s godmother how o ld L.S. was, and the godmother responded that L.S. was thirteen years old. Sometime after this meeting, Duclos-Lasnier obtained L.S.'s phone number and started sending her text messages that were sexual in nature. After a couple of weeks, Duclos-La snier and L.S. mutually decided to end the texting relationship, and at Duclos-Lasnier' s request, L.S. deleted from her cellular phone the tex t messages he had sent her. How ever, she told a friend about the texting, and the matter ultimately came to the attent ion of the Manatee County Sheriff's Office. As part of the Sheriff's investigation, depu ties were able to recapture some of the texts that L.S. previously had deleted from her pho ne. The texts included a picture of a male's clothed groin area with a male's hand down the front of the pants and a photo of a naked penis. The wording of the texts indicated t hat these photos were of

Duclos-Lasnier. Eventually, a sheriff's deputy took possession of L.S.'s phone and, pretending to be L.S., began texting Duclos-Lasnier. Through t his text messaging, the deputy set up a meeting with Duclos-Lanier at a coffee shop wit h the stated purpose of Duclos-Lanier and the victim ultimately engaging in sex. In th e same text message, the deputy requested a picture of Duclos-Lasnier's penis, and Duclo s-Lasnier obliged by- 3 - texting a photo of his erect penis. When Duclos-Lasnier arrive d at the coffee shop, he

was arrested. Prior to trial, Duclos-Lasnier filed two motions to dismiss in which he challenged counts three, four, and five. Following a hearing, the trial court denied both motions. Duclos-Lasnier then entered open guilty pleas to all the charged offenses, reserving his right to appeal the denials of his dispositive mo tions to dismiss. The trial

court sentenced him to 71.1 mont hs' imprisonment on each of cou nts one, three, four, and five and to seventy-two months' imprisonment followed by fo ur years' sex offender probation on count two; all sentences are to be served concurre ntly. Duclos-Lasnier first argues on appeal that the trial court er red in denying his motions to dismiss as they related to count three. In his first motion to dismiss, he argued that the charge of attempted lewd or lascivious battery on a child twelve or older but younger than sixteen should be dismissed because the State could never establish the victim's age to be between twelve and sixteen due to the fa ct that when DuclosLasnier arranged to meet the victim he was actually texting an adult sheriff's deputy. See § 800.04(4)(a), Fla. Stat. (2012). However, "Florida has not adopt ed the defense of legal impossi bility. Therefore, the issue is not the legal impossibility of the offe nse[] but whether [the appellant] possessed the requisite intent and committed suffici ent overt acts to effectuate that intent." Hudson v. State, 745 So. 2d 997, 1000 -01 (Fla. 2d DCA 1999) (citation omitted). Furthermore, Duclos-Lasnier exchanged text messages with a phone number he knew to belong to a thirteen-year-old girl. Those me ssages included a picture of his naked penis sent from his phone and an agreement to meet at an- 4 - arranged location for the stated purpose of ultimately engaging in sex. Duclos-Lasnier then arrived at the arranged location prepared to have sex with a minor. Even though he was actually communicating with a police officer portraying himself as a thirteenyear-old girl, every reasonable inference indicates that Duclos -Lasnier attempted to meet a thirteen-year-old girl in order to have sex with her; he clearly was not trying to meet an adult police officer. See generally § 800.04(1)(d), Fl a. Stat. (2012) (defining "victim" as "a person upon whom an offense described in this se ction was committed or attempted or a person who has r eported a violation of this sect ion to a law enforcement officer"). Duclos-Lasnier also sought the dismissal of count three by arg uing that the State could not establish the attempt because it could not show that he had committed an overt act toward the completion of the crime. "Cr iminal attempt requires three elements: the intent to commit a crime, an overt act towa rds its commission, and failure to successfully complete the crime." Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA 2010). In determining whether a defendant committed a suff icient overt act to constitute an attempt "the statutory question is whether he did 'any act toward the commission of' the offense . . . . Florida case law, in genera l, focuses on whether a defendant's actions were preparatory or overt." Hudson, 745 So . 2d at 999-1000 (quoting § 777.04(1), Fla. Stat. (1995)). Duclos-Lasnier maint ains that his actions here were merely preparatory. We do not agree. "An overt act is one that manifests the pursuance of a crimina l intent, going beyond mere preparation to the actual commencement of the crime." Bist, 35 So. 3d at 941. Here, while the act of sending a text agreeing to m eet the victim may be- 5 - classified as preparatory, texting a picture of his naked erect penis and showing up at the designated location for the stated purpose of having sex wi th the victim

demonstrated Duclos-Lasnier's w illingness and ability to consum mate the criminal offense. See id.; see also Hud son, 745 So. 2d at 1000 ("[T]he line between preparatory

acts and overt acts is difficult to draw and tends to be case s pecific."). As such, we affirm Duclos-Lasnier's judgment and sentence in count three. 1

As to his convictions on counts four and five, Duclos-Lasnier argues on appeal that the trial court erred in denying his motion to dism iss these counts for transmission of an image harmful to a minor. The bases of thes e charges were two photos of Duclos-Lasnier's naked penis that he sent to the vict im via cellular phone text messages. He maintains that phot os sent as text messages do no t violate section 847.0138(2), Florida Statutes (2012), the statute under which h e was charged. That section provides that "any person who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors . . . to a specific individual known by the defendant to be a minor commits a felony of the th ird degree." The statute defines "transmit" as "to send to a specific individual known by the defendant to be a minor via electronic mail." § 847.0138(1)(b) (emphasis ad ded). However, the

statute does not define the term "electronic mail." Duclos-Las nier maintains that the term does not include cellular phone texts. We do not agree. "Questions of statutory interpretation are subject to de novo review." Mendenhall v. State, 48 So. 3d 740, 747 (Fla. 2010). And "legi slative intent is the

1 Duclos-Lasnier also argues on appeal that the trial court commi tted a procedural error in conjunction with the hearing on the motions to dismiss. We find no merit to this argument.- 6 - polestar that guides a court's statutory construction analysis. " Knowles v. Beverly Enters.-Fla., 898 So. 2d 1, 5 (Fla. 2004). "In determining tha t intent . . . 'we look first to the statute's plain meaning.' " Id. (quoting Moonlit Waters Ap artments, Inc. v Cauley, 666 So. 2d 898, 900 (Fla. 1996)). The plain meaning of the term "electronic mail" or "email" is "a means or system for transmitting messages electronically (as between com puters on a network)." Merriam-Webster's Collegiate Dictionary 405 (11th ed. 2014). A lthough the use of a computer is included in the definition, it is added only as a p arenthetical example and is not a required element. In Simmons v. State, 944 So. 2d 317, 3 25 n.7 (Fla. 2006), the Florida Supreme Court approved of the First District's opinion in Simmons v. State, 886 So. 2d 399 (Fla. 1st DCA 2004), and "agree[d] with the First Di strict's interpretation of 'electronic mail' as including both email and electronic mail s ent by instant messaging." "Instant messaging" is defined as "a means or system for transm itting electronic messages instantly." Merriam-Webster's Collegiate Dictionary 648 (11th ed. 2014). Based on these definitions, we conclude that there is no subst antial

difference between either an ema il or an instant message sent b y computer and a text message, which is defined as "a short message sent electronical ly usually from one cell phone to another." See Merriam-Webster's Collegiate Dictionary 293 (11th ed. 2014). Like emails and instant messages sent from a computer, text mes sages sent from a cellular phone are sent electronically, are sent to a specific individual, and can include "image[s], information, [and] data." See § 847.0138(2) (defini ng the offense as "transmitting an image, information, or data that is harmful to minors"). And nothing in the plain language of the statute requires the use of a computer or the internet. In fact, it is- 7 - common knowledge that service providers offer users internet ac cess and the ability to send emails and instant messages not only from computers but al so from tablets, cellular phones, and now even watches as well. However, to the extent that the statutory use of the term "ele ctronic mail" may be considered "unclear, we ap ply rules of statutory constru ction and explore legislative history to determine legislative intent." Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003). "To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the sta tute." Id. (quoting State v. Andersen, 764 So. 2d 848, 849 (Fla. 3d DCA 2000)). Here, th e evil that the legislature is trying to prevent is minors being exposed to har mful images. To that end, the legislature passed this statute and entitled it "Transmission of material harmful to minors to a minor by elect ronic device or equipment prohibited; penalties." § 847.0138 (emphasis added). The Florida Supreme Court has explained that "in determining legislative intent, we must give due weight and

effect to the title of the section. 'The title is more than an index to what the section is about or has reference to; it is a direct statement by the legi slature of its intent.' " Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So. 2d 20 , 25 (Fla. 2004) (citation omitted) (quoting State v. Webb, 398 So. 2d 820, 824- 25 (Fla. 1981)). Here, not only is there no language in the statute requiring that the "electronic mail" be sent from a computer, the very title of the statute contemplates tha t some other electronic device or equipment may be used. Accordingly, we can see no re ason to differentiate a text message from an email or instant message communication.- 8 - Moreover, "[a]nother applicable maxim of statutory constructio n is that

statutes will not be construed so a s to reach an absurd result. " Campbell v. State, 125 So. 3d 733, 741 (Fla. 2013) (quoting Vill. of Doral Place Ass'n v. RU4 Real, Inc. , 22 So. 3d 627, 631 (Fla. 3d DCA 2009)). Here, it would be absurd to c onclude that conduct considered criminal when accomplished via an email or an instan t message sent from a personal computer would somehow be less offensive and harmful b ecause it is accomplished via text message using a cellular or smart phone. And it would be even

more absurd to criminalize c onduct when it is accomplished via the email and internet applications of a cellular phone but excuse the same conduct wh en it is carried out by using the text messaging application of that same cellular phon e. The intent of the statute is to prohibit the direct transmissi on of harmful images to a minor. Despite any perceived minute technological differences between emails or instant messages and text messages, the end result is inescapably the same: a person can electronically send images, information, and data to a designated individual. Because the statutory language is plain and unambi guous and the legislative intent is clear, we affirm Duclos-Lasnier's convictions and sen tences for counts four and five and hold that texting a harmful image to a minor violates section 847.0138. Finally, Duclos-Lasnier argues on appeal that his conviction i n count one for use of a computer to seduce, solicit, or entice a child to commit a sex act and his

conviction in count two for trave ling to seduce, solicit, or en tice a child to commit a sex act violate the prohibition against double jeopardy. 2 The Florida Supreme Court has

2 Although Duclos-Lasnier did not raise this argument below, he m ay raise it on appeal because "(a) [his] plea [wa]s a general plea as di stinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is- 9 - resolved this issue in State v. Shelley, 40 Fla. L. Weekly S362 , S364 (Fla. Jun. 25, 2015), by approving this court's decision in Shelley v. State, 134 So. 3d 1138 (Fla. 2d DCA 2014), and holding that "dual convictions for solicitation and traveling after solicitation based upon the same conduct impermissibly place [a defendant] in double jeopardy." Therefore, as to count one, we reverse and remand t o the trial court with

instructions to vacate Duclos-Lasnier's conviction and sentence for solicitation. See Shelley, 40 Fla. L. Weekly at S364; Pizzo v. State, 945 So. 2d 1203, 1207 (Fla. 2006). We affirm his convictions and sentences in counts two through f ive. Affirmed in part; reversed in part.

KHOUZAM, J., Concurs. SALARIO, J., Concurs in result only.

nothing in the record to indicate a waiver of the double jeopar dy violation." See Novaton v. State, 634 So. 2d 607, 609 (Fla. 1994).