FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Mark F. Carpanini,
L. Dimmig, II, Public Defender, and Julius J. Aulisio,
Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Helene S. Parnes,
Senior Assistant Attorney General, Tampa, for Appellee.
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.
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.
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.
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."
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."
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.
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
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
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 ...