[Copyrighted Material Omitted]
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
detectives 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.
arrived at the detectives 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
thats whats 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 dont 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 ...