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McSweeney v. State

Florida Court of Appeals, Second District

December 13, 2019

Sean MCSWEENEY, Appellant,
v.
STATE of Florida, Appellee.

Page 370

[Copyrighted Material Omitted]

Page 371

          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.

          OPINION

         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

Page 372

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 ...


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