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McSweeney v. State

Florida Court of Appeals, Second District

December 13, 2019

SEAN McSWEENEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

          Appeal from the Circuit Court for Polk County; Mark F. Carpanini, Judge.

          Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.

          SILBERMAN, JUDGE.

         Sean McSweeney appeals the probation order that withholds adjudication and places him on probation for (1) attempted deriving support from proceeds of prostitution; (2) possession of synthetic cannabinoids, cathinones, or synthetic phenethylamines; and (3) possession of drug paraphernalia. Because the trial court erred in allowing a detective's testimony regarding his opinion on what a statement by McSweeney meant and the State has failed to establish that the error was harmless, we reverse and remand for a new trial.

         Detective Gonzalez was working undercover with the vice unit which does prostitution stings when he responded to an ad on the website backpage.com. Adults would post ads for various types of services on the website, but the website was also used for human trafficking to facilitate females meeting males for sexual intercourse. The detective responded to an ad listed under Orlando dating, woman seeking men, and he then communicated via a number of text messages and phone calls with Kiana Herron. They did not speak specifically about sex, but she agreed to come and meet Detective Gonzalez. She stated that her "hour is a hundred" and that he would have to pay for gas. She later stated that she would need a little more because it was almost a two-hour drive. In another text she referred to her driver (who turned out to be McSweeney). In a call regarding trouble finding the address, she told the detective that it would be 250 because she had to give her driver 50. The detective heard her talking to the driver and asking him how much he wanted.

         Herron arrived at the detective's location and went to the door. McSweeney was walking up to the door when Herron said that he wanted the gas money. The detective said that he would not pay until he was done. McSweeney got to the door and said he wanted half the money. The detective said he would not pay up front. McSweeney then said, "[G]ive me half, you feel me. She can go in and do her thing." The detective did not give McSweeney any money. McSweeney went back to the car, and the detective went inside with Herron. She was arrested after she agreed to have sex for money.

         On cross-examination, the detective admitted that he did not tell McSweeney that he planned to have sex with Herron or that it was a prostitution operation. On redirect examination, the prosecutor asked, "Based on your training and experience, when he says, she can go in and do her thing, what do you interpret that to mean?" The defense objected based on "speculation as to what the statement means." The trial court overruled the objection and the detective responded, "To me, it was my understanding that he knew why she was here." After eliciting that the detective had done "lots" of undercover prostitution operations, the prosecutor again asked, "And she can go in and do her thing, what does that mean based on your training and experience?" The trial court again overruled the defense objection based on speculation. The detective answered, "That means she can go in and have sex with me."

         When McSweeney was later arrested, narcotics and paraphernalia were found on his person. In a postarrest interview with Detective Stroud, McSweeney said that Herron offered him money for gas to take her to see a friend. He did not know what Herron did for work and thought she was unemployed. He met her at the pool at the hotel where he was staying. Detective Stroud told McSweeney that Herron had already told law enforcement that she was there for prostitution. McSweeney said, "Well, I would guess, you know, that that's what's going on but-" Detective Stroud interjected and then said that McSweeney would not get Herron in trouble because "she already said what she was doing." McSweeney said, "I don't know, you know. She was going to see a friend and she was going to give me money, you know. I was in the conversation for the ride." McSweeney said he went to the door and asked for money because he had driven all that way. He said, "I ain't know as far as what they have going on behind closed doors. Like you said, I'm not about that."

         On appeal, McSweeney argues that the trial court erred by allowing Detective Gonzalez to speculate as to what McSweeney meant when he said that "she can go in and do her thing." He argues that the detective's response that he took it to mean "she can go in and have sex with [him]" invaded the province of the jury by giving his opinion on an ultimate element that the State had to prove beyond a reasonable doubt.

         McSweeney was convicted of attempted deriving support from proceeds of prostitution. The completed crime is defined as follows: "It shall be unlawful for any person with reasonable belief or knowing another person is engaged in prostitution to live or derive support or maintenance in whole or in part from what is believed to be the earnings or proceeds of such person's prostitution." § 796.05(1), Fla. Stat. (2017). The element at issue is whether McSweeney had a reasonable belief or knew that Herron was engaging in prostitution.

         We review a trial court's ruling on the admissibility of evidence for an abuse of discretion; however, that discretion is limited by the rules of evidence and relevant case law. See Hayward v. State, 183 So.3d 286, 325 (Fla. 2015). A lay witness is generally not permitted to "testify about their subjective interpretations or conclusions as to the meaning of another person's statements." Jones v. State, 95 So.3d 426, 429 (Fla. 4th DCA 2012) (citing Thorp v. State, 777 So.2d 385, 395-96 (Fla 2000)). Although the evidence rules permit a witness to interpret "coded conversations," witness testimony that interprets clear conversations does not aid the jury, and such testimony is inadmissible. Id. Rather than a witness, it is the jury that should draw any inferences from a defendant's statements. Id. (citing Thorp, 777 So.2d at 395-96).

         In Thorp, an inmate who had been housed with the defendant testified regarding a statement that the defendant made. 777 So.2d at 388. The witness testified that the defendant said "that he and another man 'took a hooker down by the bridge and did her.'" Id. The defendant said that he expected to be blamed for her murder. Id. The ...


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