## Facts

- An undercover detective entered internet chat rooms posing as a 12-year-old girl and communicated with Louis A. Duke over several days.
- Duke and the purported child exchanged sexually explicit messages and discussed performing specific sexual acts.
- They arranged to meet on a night when the child’s mother would allegedly be away, with a plan to rendezvous first in a nearby parking lot.
- Duke was instructed to flash his headlights so the child would recognize his car.
- Duke drove to the designated parking lot at the agreed time and flashed his headlights.
- Police immediately arrested Duke at the parking lot.
- Duke was charged with three counts of attempted sexual battery on a child under Fla. Stat. §§ 800.04(3) and 777.04 (1995).

## Issues

1. Whether sexually explicit online communications, arranging a sexual encounter with a purported 12-year-old, and driving to a meeting spot and signaling arrival constitute a legally sufficient overt act for attempted sexual battery under Florida’s attempt statute.

## Decision

- The appellate court reversed the trial court’s order granting a new trial.
- The court held the evidence was legally insufficient to prove an “act towards the commission” of sexual battery.
- The court directed the trial court to enter a judgment of acquittal for Duke.

## Legal Principles

- Florida criminal attempt under Fla. Stat. § 777.04(1) requires proof that the defendant did an overt act toward commission of the offense; intent and preparation alone are not enough.
- An attempt requires an act in furtherance that goes beyond planning and is sufficiently proximate to execution of the substantive crime.
- When evidence is legally insufficient to establish the required overt act, the proper remedy is a judgment of acquittal rather than a new trial.

## Conclusion

The court concluded that Duke’s explicit online discussions, agreement to meet, and arrival at the rendezvous location with a signal were preparatory acts that did not satisfy Florida’s overt-act requirement for attempted sexual battery, requiring acquittal as a matter of law.


State v. Duke, 709 So. 2d 580 (Fla. 5th DCA 1998)