Allen v. State

• Decision Date: 02 September 2021
• Docket Number: No. SC20-1053,SC20-1053
• Citation: 324 So.3d 920
• Parties: Reggie Eugene ALLEN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

324 So.3d 920

Reggie Eugene ALLEN, Petitioner,

v.STATE of Florida, Respondent.

No. SC20-1053

Supreme Court of Florida.

September 2, 2021

Jessica Yeary, Public Defender, and Victor Holder, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner

Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, Florida, for Respondent

COURIEL, J.

We have for review the decision in Allen v. State , 298 So. 3d 704, 707 (Fla. 1st DCA 2020), in which the First District Court of Appeal certified the following question of great public importance:

IS THE SCHEDULE OF LESSER INCLUDED OFFENSES PROMULGATED BY THE FLORIDA SUPREME COURT IN 2018 IN ERROR IN CLASSIFYING SEXUAL BATTERY ( § 794.011(5) ) AS A NECESSARILY LESSER INCLUDED OFFENSE OF CAPITAL SEXUAL BATTERY ( § 794.011(2)(a), Fla. Stat. (2018))?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The answer to the certified question is yes. The schedule incorrectly classifies sexual battery as a necessarily lesser included offense of capital sexual battery.

I

Reggie Eugene Allen was charged with three counts of sexual battery and one count of lewd or lascivious exhibition, all relating to incidents that took place between 2010 and 2016. Allen's victim, T.W., is the daughter of his ex-girlfriend. T.W. was born on March 25, 2001, and was therefore between nine years old and fifteen years old during the alleged incidents. At Allen's trial, she was seventeen years old, and testified to events that took place when she was between nine and thirteen years old.

Without fixing a precise date to any individual episode of abuse, T.W. testified that Allen put his mouth on her vagina over twenty times. Three incidents stood out to her. Each occurred at a different location in Bay County; T.W. and her mother moved several times during the years relevant to this case. T.W. testified that she lived at a home on Williams Avenue until she was eleven, when she moved to a development called Aztec Apartments. T.W. testified that she lived there until she was thirteen, when she moved to a home on Sims Avenue.¹

The first incident occurred when T.W. was nine, at her home on Williams Avenue.² T.W. testified that she and Allen were watching television in the living room when Allen started kissing her and rubbing her body. Allen rubbed her chest, touched her vagina, performed oral sex on her and then masturbated until ejaculation. Then he told T.W. not to tell her mother what had happened.

T.W. testified that the second incident occurred when she was eleven, on the day she and her family moved to the Aztec Apartments development. T.W. and Allen were alone upstairs when Allen told her to lie down so that he could perform oral sex on her, then did so. T.W. recalled that she started shaking and crying, telling Allen she was scared. T.W. testified that her mother was still at the Williams Avenue residence when the incident occurred.

The third incident occurred when T.W. was thirteen and living at the Sims Avenue address. T.W. testified that she was lying on her bed in her room when Allen walked in, shut the door, and pulled down her pants. T.W. testified that Allen placed his mouth on her vagina and performed oral sex on her. At some point, T.W.’s mother entered the room and Allen threw a blanket over T.W., pretending that he had been "play-fighting" with her.

T.W. testified that, as to the other times Allen had performed oral sex on her, she could not recall the month, season, weather, or what time of year the incidents took place. She was eleven (so, in 2012 or early 2013) when she first told her mother about all this. When T.W.’s mother confronted Allen soon after, he denied everything. He moved out of the house on Williams Avenue shortly thereafter, but eventually moved back in when T.W. and her mother moved to the Aztec Apartments.

In 2017, a then-sixteen-year-old T.W. and her mother had a fight about T.W.’s close relationship with her half-brother. During the fight, police arrived and T.W. told them about Allen's actions. Again Allen denied all these allegations, this time to the police. Nonetheless, on November 13, 2017, Allen was charged by information with four criminal counts, covering three distinct time periods. In count I, the only count of conviction Allen appealed to the First District, he was charged with committing sexual battery on a person less than twelve years of age—capital sexual battery—on or between March 25, 2010, and March 24, 2012. Allen did not dispute at trial and does not dispute now that, during this time, T.W. was between nine and ten years old.

Allen took the stand at trial. He testified that he never put his mouth on T.W.’s genitals, masturbated in her presence, or interacted with her inappropriately. Allen testified that the living room at Williams Street had no television, contradicting T.W.’s testimony that Allen assaulted her while the two were watching television. Allen also testified that he was never alone with T.W. at Aztec Apartments on the day he helped T.W.’s mother move, contradicting T.W.’s testimony that he assaulted her while the two were alone and T.W.’s mother was at the former residence.

At the conclusion of the evidence at trial, Allen requested that, as to count I, the jury be instructed on sexual battery as a necessarily lesser included offense of capital sexual battery. At the time, the Schedule of Lesser Included Offenses included in the Florida Standard Jury Instructions in fact listed sexual battery as a necessarily lesser included offense of capital sexual battery—otherwise known as a "category one" lesser included offense.³ The State argued that it was illogical to provide such an instruction, because sexual battery applies to a victim twelve years and older, and it was undisputed that T.W. was nine or ten during the dates alleged for count I. The trial court agreed and denied Allen's request, exercising its discretion to determine which instructions to give based on the facts adduced at trial. The trial court further explained that it had the power to determine what constituted a necessarily lesser included offense.

The trial court instructed the jury as follows: "As to Count I, sexual battery, to prove the crime of sexual battery on a person less than 12 years of age, the State must prove the following three elements beyond a reasonable doubt: one, Reggie Eugene Allen committed an act on [T.W.] in which the sexual organ of [T.W.] had union with the mouth of Reggie Eugene Allen; and two, at the time of the offense, [T.W.] was less than 12 years of age; and three, at the time of the offense, Reggie Eugene Allen was 18 years of age or older." The court explained that if the jury was not convinced that Allen had committed capital sexual battery, "there may be evidence that he committed other acts that would constitute a lesser included crime." The court directed, "[I]f you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if the defendant is guilty of any lesser included crime." The jury was then instructed as to two other lesser included offenses: lewd or lascivious battery on a victim less than sixteen years of age, and battery.

As to count III, which charged Allen with capital sexual battery on or between March 25, 2012, and March 24, 2014,⁴ the court instructed the jury on sexual battery, lewd or lascivious battery, and battery as lesser included offenses of capital sexual battery.

The jury found Allen guilty as charged on all four counts. Allen appealed, arguing that the trial court erred in denying his motion to instruct the jury on sexual battery as a category one, necessarily lesser included offense of capital sexual battery. The First District affirmed and certified to this Court the question we have before us.

II

Because T.W.’s age is undisputed, the First District's decision is purely a question of law, which we review de novo . Khianthalat v. State , 974 So. 2d 359, 360 (Fla. 2008) ("Because this matter involves a legal determination based on undisputed facts, this Court's standard of review is de novo."). The trial court's rulings on jury instructions generally get the benefit of the doubt. See State v. Bryan , 287 So. 2d 73, 75 (Fla. 1973) ("[W]e recognized the importance of the trial judge on the scene who has the ‘feel’ of the case, the psychology of its movement through trial and what aspects appear from subtle inflections and overtones to be important in the jury's mind and for its decision. That is one of the reasons that a trial court's decision has historically had the presumption of correctness on appeal."). As it happens, in this case, at trial, defense counsel, the prosecutor, the trial court, and the version of the jury instructions used all referred to an incorrect version of the sexual battery statute, section 794.011(5).⁵ Our consideration of whether sexual battery is a necessarily lesser included offense of capital sexual battery is in any event the same, whatever version of the statute is used.

A

A lesser included offense is one whose elements are entirely contained within the elements of another, greater, offense. Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006). To determine whether and how an offense qualifies as a lesser included offense, "this Court's precedent calls for a comparison of statutory elements." Pizzo v. State , 945 So. 2d 1203, 1206 (Fla. 2006) (holding that, for double jeopardy analysis, grand theft is a lesser included offense of organized fraud because all the statutory elements of grand theft are subsumed by the statutory elements of organized fraud). Lesser included offenses fall within two categories: necessary (or necessarily—we have said it both ways⁶ ) and permissive. Sanders , 944 So. 2d at 206. "Necessarily lesser included offenses are those offenses in which the statutory elements^{[7 ]} of the lesser included offense are always subsumed within those of the charged offense." Id...