207 So.3d 135 (Fla. 2016), SC15-1416, Graham v. State

Docket Nº:SC15-1416
Citation:207 So.3d 135, 41 Fla.L.Weekly S 359
Opinion Judge:QUINCE, J.
Party Name:MARCUS JAMAL GRAHAM, Petitioner, v. STATE OF FLORIDA, Respondent
Attorney:Nancy Ann Daniels, Public Defender, and David Alan Henson, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner. Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Donna Antoinette Gerace, Assistant Attorney General, Tallahassee, Florida, f...
Judge Panel:QUINCE, J. LABARGA, C.J., and PARIENTE, LEWIS, CANADY, and PERRY, JJ., concur. POLSTON, J., concurs in result. LABARGA, C.J., and PARIENTE, LEWIS, CANADY, and PERRY, JJ., concur. POLSTON, J., concurs in result.
Case Date:September 01, 2016
Court:Supreme Court of Florida
SUMMARY

Petitioner was convicted of two counts of lewd or lascivious molestation for touching the victim’s breasts and touching the victim’s buttocks. The court of appeal affirmed, concluding (1) the trial court did not err in restricting cross-examination of the victim and her mother, and (2) Petitioner’s convictions did not violate double jeopardy. The Supreme Court affirmed Petitioner’s convictions... (see full summary)

 
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Page 135

207 So.3d 135 (Fla. 2016)

41 Fla.L.Weekly S 359

MARCUS JAMAL GRAHAM, Petitioner,

v.

STATE OF FLORIDA, Respondent

No. SC15-1416

Supreme Court of Florida

September 1, 2016

          Application for Review of the Decision of the District Court of Appeal - Certified Direct Conflict of Decisions. First District - Case No. 1D14-2474. (Duval County).

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

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

         QUINCE, J. LABARGA, C.J., and PARIENTE, LEWIS, CANADY, and PERRY, JJ., concur. POLSTON, J., concurs in result.

          OPINION

         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 135. 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...

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