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Roy v. State

Florida Court of Appeals, Fifth District

August 16, 2019

BENJERMAN D. ROY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Volusia County, Raul A. Zambrano, Judge.

          Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

          PER CURIAM.

         AFFIRMED.

          EVANDER, CJ, [1] concurs

          EISNAUGLE, J, concurs specially, with opinion

          EISNAUGLE, J., concurring specially.

         I agree that Appellant's judgment and sentence should be affirmed. I write only to observe two points. First, some of the arguments relied on by the dissent were either not preserved or not raised in the initial brief, and therefore cannot be properly considered on appeal.

         Second, the trial court's authentication rulings were supported by the evidence. We review a trial court's determination regarding the authentication of evidence for an abuse of discretion. Mullens v. State, 197 So.3d 16, 25 (Fla. 2016). A party may authenticate evidence "by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances." Symonette v. State, 100 So.3d 180, 183 (Fla. 4th DCA 2012) (quoting Jackson v. State, 979 So.2d 1153, 1154 (Fla. 5th DCA 2008)).

         With this standard in mind, I observe that the dissent fails to acknowledge a list of evidence introduced at trial. For example, it was Appellant who not only conceded that the phone belonged to his brother but also made this fact part of his theory of defense during cross-examination and closing argument. The dissent also neglects to mention evidence that, upon returning to the gas station a second time, Appellant did not simply sit in his car and smoke. Instead, the testimony established that he conspicuously "look[ed] around like he was looking for somebody" while sitting in his car. When approached by law enforcement, Appellant fled at such a high rate of speed that officers were not permitted to continue their pursuit.

         Although not acknowledged by the dissent, this and other record evidence require an affirmance in this case.

          ROCHE, R.A., Associate Judge, concurring in part and dissenting in part.

         I concur in the majority's affirmance of the judgment and sentence rendered on Count III, charging Appellant, Benjerman D. Roy, with fleeing or attempting to elude a police officer. However, because the State engaged in impermissible inference stacking and because there was insufficient competent, substantial evidence from which a rational jury could find Appellant guilty beyond a reasonable doubt of soliciting a child or person believed to be a child for unlawful sexual conduct using computer services or devices (Count I) and traveling to meet a minor (Count II), I respectfully dissent from the affirmance of those convictions.

         In August 2016, a law enforcement officer posing as "Kelsey" posted the following ad on Craigslist: "If you are looking for a younger female, who is down for some fun, then email me." An individual identified only as "Bonjey Roy" responded to the ad from 9f759629734b0adf80f6676441c86@reply.craigslist.org.[2] Using the email address "littlebitKelsey@Gmail.com," the officer exchanged emails with "Bonjey Roy." During the exchange, "Kelsey" identified herself as a fourteen-year-old girl.

         "Bonjey Roy" provided "Kelsey" a cellular telephone number and a text message exchange ensued.[3] After exchanging several text messages, a female officer called the cell phone number. In a recorded conversation, the person expressed interest in meeting "Kelsey" for sex and arranged by text to meet her at a RaceTrac gas station in DeLand that evening. "Kelsey" made two requests of the person: to (1) go into the store and buy her a bottle of water when he/she arrived and (2) send her a text confirming he/she was there.

         Undercover officers were watching the RaceTrac when a silver Saturn arrived at the agreed-upon RaceTrac. Law enforcement had no reason to believe the driver was the person who had communicated with "Kelsey," but observed him as he bought gasoline, walked in and out of the store without buying anything, and left. The undercover agents did not identify the individual and did not obtain the tag number of his vehicle.

         When the silver Saturn returned to the RaceTrac a second time, the driver did not go into the store but merely parked and "lit something." Law enforcement officers approached, whereupon the vehicle fled. Later that night, a silver Saturn matching the description of the vehicle that had been observed at the RaceTrac was found abandoned at a rest stop in Lake Mary by other officers. Those officers smelled cannabis and searched the Saturn, recovering Appellant's driver's license from the center console. ...


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