Kobel v. State

Citations: 745 So. 2d 979; 1999 WL 641837Docket: 98-2828

Court: District Court of Appeal of Florida; November 23, 1999; Florida; State Appellate Court

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James Kobel appealed his convictions for attempted procurement of a minor for prostitution and attempted indecent assault. The District Court of Appeal of Florida affirmed the conviction for attempted indecent assault but reversed the conviction for attempted procurement, determining that his actions constituted solicitation of a minor instead. The court clarified its position by receding from a previous ruling in McCann v. State.

The case involved a ten-year-old boy, A.L., and his friend, J.T., who encountered Kobel while walking to a store. Kobel made inappropriate gestures and offered the boys money for sexual acts. After fleeing to A.L.'s house, they reported Kobel to the police weeks later, leading to his arrest. At trial, the judge acquitted Kobel of some charges and reduced the procurement charge to attempted procurement. The jury found him guilty on two counts.

Kobel argued that the trial court erred in not reducing the procurement charge to solicitation, asserting that the facts indicated solicitation rather than attempted procurement, as the procurement statute pertains to hiring a minor for sexual activity with a third party. The court referenced Florida Statutes section 796.03, which defines the crime of procuring a minor for prostitution, and discussed a precedent case, Register v. State, where an offer of money for sexual acts was deemed solicitation rather than procurement. The court emphasized that solicitation involves inducing someone to engage in sexual acts, while procurement suggests a more active role in facilitating such acts, thereby aligning with the protective intent of the statute against the exploitation of minors.

Defense counsel argued that the procurement statute targets individuals, like pimps, who financially exploit minors by involving them in prostitution with others. The first district court determined that Register's actions amounted to solicitation rather than procurement, affirming that the Florida Legislature categorizes procuring minors for prostitution as a felony, while procuring individuals aged 18 or older is merely a misdemeanor, as is soliciting anyone for prostitution. The appellant's attempt to induce a minor into sexual activity was classified as solicitation since the minor refused. The court found no statutory basis for equating monetary offers in solicitation with the more severe crime of procuring minors for third-party exploitation, highlighting that solicitation is recognized as a less severe offense. The legislature could have categorized solicitation of a minor as a felony, but it did not. In a related case, McCann was convicted for attempting to procure a minor for prostitution but challenged the statute as vague. The court clarified that "procure" could mean persuading or inducing someone for sexual acts, emphasizing the state's interest in protecting minors from sexual exploitation. A dissenting judge argued that the statute's definition of "procure" should be limited to those who obtain minors for others, asserting that McCann's actions were mere solicitation. The trial judge adhered to the majority's interpretation in McCann, denying a motion for acquittal on the procurement charge.

The court has decided to recede from its previous ruling in McCann, influenced by the reasoning in Register and Judge Gross' dissent. The term 'procurement' is defined in a specialized context relating to prostitution, signifying a commercial motive to obtain a prostitute for another. While both solicitation of a minor for sex and procurement for prostitution are serious offenses, the latter is deemed a greater evil due to its commercial nature. The Legislature’s punishment reflects a distinction between a one-time act against a minor and introducing a minor into prostitution. The rule of lenity necessitates strict construction of penal statutes in favor of the defendant when language is ambiguous. The court concludes that the trial court erred by not granting a motion for judgment of acquittal as section 796.03 pertains only to procurement, not solicitation, and there is a legislative intent to differentiate between these terms in section 796.07. On the appellant's conviction for attempted indecent assault, the court finds sufficient evidence in the appellant's actions to support the conviction, affirming it, while reversing the conviction for attempted procurement of a minor. The court grants clarification, reducing the attempted procurement charge to solicitation, a second-degree misdemeanor, and orders resentencing for both counts. The opinion includes a dissent from Judge Shahood, who supports the reasoning in McCann.