BENJERMAN D. ROY, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Volusia County, Raul A. Zambrano,
B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, for
Moody, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
EVANDER, CJ,  concurs
EISNAUGLE, J, concurs specially, with opinion
EISNAUGLE, J., concurring specially.
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.
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)).
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.
not acknowledged by the dissent, this and other record
evidence require an affirmance in this case.
R.A., Associate Judge, concurring in part and dissenting in
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.
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
email@example.com. 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
Roy" provided "Kelsey" a cellular telephone
number and a text message exchange ensued. 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
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
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.