Berger v. State
Berger v. State
Opinion of the Court
We grant Appellant Christopher M. Berger's motion for rehearing en banc, withdraw our previous per curiam decision, and substitute the following opinion in its place.
Appellant appeals his convictions for traveling to meet a minor for illegal sexual conduct and attempted sexual battery on a person under twelve years of age. We write only to address Appellant's argument that the trial court erred when it denied his motion for judgment of acquittal on the charge of attempted sexual battery because he did not commit an overt act, relying on our decision in State v. Duke ,
The Undercover Law Enforcement Operation
Appellant responded to an advertisement on Craigslist for a sexual encounter with a man and woman. Although the ad itself made no reference to a minor, it was posted as part of an undercover sting operation looking for child predators.
A detective, posing as the father of a ten-year-old girl, responded to Appellant's e-mail explaining that he was looking for someone who would teach his ten-year-old daughter about sex. Although Appellant emphasizes that he initially thought he was responding to an ad for an encounter with an adult couple, he nevertheless promptly indicated his interest in the detective's proposal, stating "[w]hile your request may be unusual by most people's standards," "I am very intrigued" and "am [a] very open-minded and a nonjudgmental person."
Over the course of his e-mail conversation with the detective, Appellant was quite specific about the sexual acts he would perform with the child. Appellant then spoke with the detective twice by phone about both the logistics of his drive from north of Ocala to Clermont and the specific sexual acts that he intended to perform with the child. Appellant also promised that he would bring "protection."
Appellant drove more than an hour to a decoy residence in Clermont being used by law enforcement, knocked on the door, and was immediately arrested. He had three condoms in his pocket.
Florida Law: Criminal Attempt and Overt Acts
In Florida, a person commits the offense of criminal attempt if he or she "does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof." § 777.04(1), Fla. Stat. (2015). Thus, "the two elements comprising an attempt to commit a crime are (1) a specific intent to commit the crime and (2) an overt act done toward its commission that is beyond mere preparation." Mizner v. State ,
Preparation generally consists of devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after preparations are completed. The act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime. Some appreciable fragment of the crime must be committed and it must proceed to the point that the crime would be consummated unless interrupted by a circumstance independent of the attemptor's will.
State v. Coker ,
Duke and Its Application
More than twenty years ago in Duke , we reversed the defendant's conviction for attempted sexual battery because we concluded that the defendant had not committed an overt act.
On appeal, we reversed and directed the trial court to enter a judgment of acquittal.
Since then, our decision in Duke has often been distinguished, and at times, squarely rejected. In Bist v. State ,
In rejecting the defendant's argument, we expressly questioned the result in Duke . Id. n.3. However, we concluded that Duke was distinguishable, even though the facts of both cases were strikingly similar, because the defendant in Bist faced a different charge-attempted lewd and lascivious battery rather than attempted sexual battery. Id.
Our sister court employed the same distinction in Wiggins v. State ,
Courts in other jurisdictions have more directly disapproved of Duke 's holding. See, e.g. , State v. Glass ,
Our Analysis of Duke and the Overt Act in this Case
We now recognize that Duke was wrongly decided and recede from its holding. In so doing, we emphasize that an overt act does not require "the last possible act toward consummation of the crime." Coker ,
Our holding in Duke is not only inconsistent with the overt act analysis for other crimes, see Bist , but is also in conflict with a plain reading of section 777.04(1), Florida Statutes. While the defendant in Duke might not have committed the very "last possible act" toward a sexual battery, he certainly committed an act toward the commission of the crime when he arrived at the agreed upon location to meet his victim and failed only because he was intercepted by law enforcement.
Likewise, in this case, Appellant clearly acted in pursuit of his criminal intent, "going beyond mere preparation to the actual commencement of the crime." Bist ,
Therefore, we hold that a defendant commits an overt act in furtherance of the crime of attempted sexual battery where, as in this case, the defendant travels to and arrives at an agreed upon location to meet and sexually batter a minor victim.
AFFIRMED.
COHEN, C.J., ORFINGER, TORPY, EVANDER, BERGER, WALLIS, LAMBERT, EDWARDS, HARRIS, and GROSSHANS, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.