Graham v. State

• Decision Date: 01 September 2016
• Docket Number: No. SC15–1416.,SC15–1416.
• Citation: 207 So.3d 135
• Parties: Marcus Jamal GRAHAM, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

207 So.3d 135

Marcus Jamal GRAHAM, Petitioner,

v.STATE of Florida, Respondent.

No. SC15–1416.

Supreme Court of Florida.

Sept. 1, 2016.

Nancy Ann Daniels, Public Defender, and David Alan Henson, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Donna Antoinette Gerace, Assistant Attorney General, Tallahassee, FL, for Respondent.

QUINCE, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Graham v. State, 170 So.3d 141 (Fla. 1st DCA 2015). The district court certified that its decision is in direct conflict with the decisions of the Fourth District Court of Appeal in Webb v. State, 104 So.3d 1153 (Fla. 4th DCA 2012), and Cupas v. State, 109 So.3d 1174 (Fla. 4th DCA 2013), on a question of law. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we approve the First District in the instant case and disapprove the decisions of the Fourth District.

FACTS

Petitioner, Marcus Jamal Graham, was convicted of two counts of lewd or lascivious molestation¹ for (1) touching the victim's breasts and (2) touching the victim's buttocks. Graham, 170 So.3d at 142. Petitioner appealed to the First District Court of Appeal, arguing that his convictions violate double jeopardy and the trial court erred in restricting cross-examination of the victim and her mother. Id.

On appeal, the First District denied both claims and affirmed the trial court's convictions and sentences. Id. Regarding the trial court's restriction of cross-examination, the First District found that "even if the prior incidents of sexual abuse of the victim and the mother were marginally relevant, the probative value of the testimony would be substantially outweighed by the prejudice it would likely cause." Id. at 144. In denying Petitioner's double jeopardy claim, the First District relied on this Court's decision in State v. Meshell, 2 So.3d 132 (Fla.2009), and held that:

Because the Florida sexual battery statutes and lewd or lascivious battery statutes may be violated in multiple, alternative ways, convictions for "sexual acts of a separate character and type requiring different elements of proof" do not violate double jeopardy because the acts are "distinct criminal acts that the Florida Legislature has decided warrant multiple punishments."

Id. at 143. Recognizing that this holding conflicted with other holdings from the Fourth District, the First District then certified conflict with Cupas, 109 So.3d 1174 and Webb, 104 So.3d 1153. Id.

ANALYSIS

Petitioner now appeals to this Court, arguing that his convictions violated double jeopardy and that the trial court erred in restricting defense's cross-examination of the victim and her mother. We will address each issue in turn.

Double Jeopardy

The first issue before this Court is whether double jeopardy prohibits dual convictions under the same statute where the acts upon which the charges are based occur within a single criminal episode. Double jeopardy claims based on undisputed facts present questions of law and are subject to de novo review. State v. Drawdy, 136 So.3d 1209, 1213 (Fla.2014).

This Court addressed a similar issue in Meshell, where a defendant was convicted of two counts of lewd or lascivious battery, in violation of section 800.04(4), for two acts that occurred during the course of a single criminal episode: (1) penetrating the victim's vagina and (2) penetrating the victim's mouth. In finding that the convictions did not violate double jeopardy, this Court recognized that "in cases of sexual battery, Florida courts have focused on whether the acts forming the basis of the charges are ‘distinct.’ " 2 So.3d at 134. This Court then held that "distinct" acts are "sexual acts of a separate character and type requiring different elements of proof, such as those proscribed in the sexual battery statute." Id. at 135. Therefore, the defendant's convictions under the lewd or lascivious battery statute did not violate double jeopardy because "the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal penetration) are of a separate character and type requiring different elements of proof and are, therefore, distinct criminal acts." Id. at 136.

In the instant case, Petitioner was convicted of two counts of lewd or lascivious molestation for touching the victim's breasts and touching the victim's buttocks during the course of a single criminal episode. Graham, 170 So.3d at 142. The First District found that, under Meshell, the acts proscribed by the lewd or lascivious molestation statute are distinct criminal acts that warrant multiple punishments. Id. at 143. Therefore, Petitioner's convictions under the lewd or lascivious molestation statute did not violate double jeopardy because the charges at issue "were predicated on two distinct acts: touching of the victim's breasts, or the clothing covering them, and touching of the victim's buttocks, or the clothing covering them." Id.

In Webb, one of the conflict cases, the defendant was convicted of two counts of lewd or lascivious molestation for the act of touching the victim's breasts and the act of touching the victim's genital area over her jeans. 104 So.3d at 1154. The Fourth District held that the dual convictions violated double jeopardy and explained its rationale as follows:

Webb was convicted of the same offense twice; therefore, the elements of these two convictions are the same. Our analysis then turns on whether the two convictions for lewd or lascivious molestation were part of the same criminal episode. If they occurred in the same episode, then Webb "may be convicted of only one offense for each episode."

Id. at 1155 (emphasis added) (citation omitted). The district court then found that the acts of touching occurred within a ten-minute time span and determined that this period was "insufficient to constitute separate criminal episodes." Id. While the court recognized that "in sexual battery cases, multiple acts within a single criminal episode can constitute separate crimes," it declined "to analyze whether each touching constituted a distinct act" under Meshell because the defendant was charged with lewd or lascivious molestation, not battery. Id.

In Cupas, the other conflict case, the defendant was charged with three counts of lewd or lascivious molestation for touching the victim's breasts, touching the victim's genitals, and forcing the victim to touch the defendant's genitals. 109 So.3d at 1174. Relying on its decision in Webb, the court held that the defendant could not be convicted twice under the lewd or lascivious molestation statute for touching the victim's breasts and genital area in the same criminal episode. However, the court held that the third count, which involved the defendant forcing the victim to touch his penis, did not violate double jeopardy because it was "a distinct act requiring a different element of proof." Id. Finding that forcing a victim to touch the defendant was a distinct act requiring a different element of proof, the Fourth District agreed with the First District's decision in Sanders v. State, 101 So.3d 373 (Fla. 1st DCA 2012). In Sanders, the First District held that a defendant could "violate [the lewd or lascivious molestation] statute in two separate and distinct ways: (1) by touching the victim in the proscribed manner, or (2) by forcing or enticing the victim to touch the person in the proscribed manner." 101 So.3d at 375.

In the instant case, Webb, and Cupas, the defendants were each charged with violating the lewd or lascivious molestation statute multiple times during the course of a single criminal episode. While the First District in the instant case found that each act proscribed by the statute represents a "distinct" act for determining whether double jeopardy has been violated, the Fourth District in Webb and Cupas refused to apply this Court's holding in Meshell to the lewd or lascivious molestation statute. Instead, the Fourth District determined that the acts occurred in the same criminal episode and, therefore, found that the dual convictions violated double jeopardy because the elements of proof under the statute are identical for each act.

To resolve the conflict, we must first look to the seminal case regarding double jeopardy, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Blockburger, the defendant was charged with violating two provisions of the Harrison Narcotic Act during a sale of morphine

hydrochloride to a single purchaser. Id. at 300–01, 52 S.Ct. 180. While the defendant was charged with five counts, the jury returned a verdict on the second, third, and fifth counts only. Id. "The second count charged a sale on a specified day of ten grains of the drug not in or from the original [p]ackage." Id. at 301, 52 S.Ct. 180. The third count charged a second sale, made on the following day, of "eight grains of the drug not in or from the original [p]ackage." Id. The fifth count related to the second sale, and charged that in addition to the sale not being made "in or from the original package, the sale had not been made in pursuance of a written order of the purchaser as required by statute." Id.

The defendant argued that these convictions violated double jeopardy for two reasons. First, he argued, "upon the facts, the two sales charged in the second and third counts as having been made to the same person constitute a single offense." Id. Second, he argued that the charges stemming from the third and fifth counts both arose from the second sale and because this second sale constituted but one act, only one statutory punishment could be applied. Id. Therefore, the Court was presented with two issues: (1) whether a defendant could be charged more than once under the same statute for multiple acts within a single criminal episode and (2) whether a defendant could be charged...