De Aragon v. State

• Decision Date: 22 May 2019
• Docket Number: No. 4D17-2010,4D17-2010
• Citation: 273 So.3d 26
• Parties: Francisco Xavier DE ARAGON II, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

273 So.3d 26

Francisco Xavier DE ARAGON II, Appellant,

v.STATE of Florida, Appellee.

No. 4D17-2010

District Court of Appeal of Florida, Fourth District.

[May 22, 2019]

Carey Haughwout, Public Defender, and Tom Wm. Odom and Paul Edward Petillo, Assistant Public Defenders, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

Klingensmith, J.

Appellant Francisco Xavier De Aragon II, was charged with and convicted of sexually assaulting three six-year-old girls while giving them swimming lessons. Appellant presents three points on appeal, but we choose to address only whether the trial court reversibly erred in denying his request for a permissive lesser-included simple battery instruction on the three lewd or lascivious molestation counts. We find no error in denying the requested instructions and affirm on all issues raised.

Appellant was charged by amended information with five separate counts: sexual battery on A.C. and B.E.; and lewd or lascivious molestation of A.C., B.E. and A.P. During the jury instruction conference, defense counsel requested an instruction on simple battery as a permissive lesser-included offense on the three lewd molestation counts. The State objected, arguing the instruction was not appropriate for the lewd molestation charges, though conceding it would be proper on the sexual battery offenses.

Pointing to Khianthalat v. State (Khianthalat II ), 974 So.2d 359 (Fla. 2008), the State argued that the trial court could not allow the simple battery instruction as a lesser-included offense because the information did not plead a lack of consent and the facts of the case did not support simple battery. The trial court denied Appellant's instruction request and reasoned that simple battery was not subsumed within the lewd molestation offense because "[b]attery requires lack of consent. Lewd or lascivious molestation does not."

Appellant was found guilty of all three lewd molestation charges.¹ This appeal follows.

"[A] trial court has wide discretion in instructing the jury, and the court's decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal." Carpenter v. State , 785 So.2d 1182, 1199-1200 (Fla. 2001) (quoting James v. State , 695 So.2d 1229, 1236 (Fla. 1997) ). But a legal determination based upon undisputed facts as to whether a defendant is entitled to a jury instruction on an alleged permissive lesser-included offense is a question reviewed de novo by this court. See State v. Knighton , 235 So.3d 312, 314 (Fla. 2018). Here, we must determine whether Appellant was entitled to a permissive lesser-included simple battery instruction on the lewd molestation counts.

Lesser-included offenses are either necessary or permissive. See Sanders v. State , 944 So.2d 203, 206 (Fla. 2006). Necessary lesser-included offenses are "subsumed within" the charged offenses. See Stoffel v. State , 247 So.3d 89, 92 (Fla. 1st DCA 2018). Thus, a trial court must instruct the jury on necessary lesser-included offenses. See McKiver v. State , 55 So.3d 646, 649 (Fla. 1st DCA 2011). "In contrast, a permissive lesser-included offense is one where both offenses appear to be separate on the face of the statutes, ‘but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.’ " Stoffel , 247 So.3d at 92 (alteration in original) (quoting Sanders , 944 So.2d at 206 ).

An instruction on a permissive lesser-included offense is authorized only when two conditions are met: "(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements." Khianthalat II , 974 So.2d at 361 (quoting Jones v. State , 666 So.2d 960, 964 (Fla. 3d DCA 1996) ). A trial court does not err in denying a permissive lesser instruction when either, or both, of the above conditions have not been met. See id.

Our analysis continues with a review of the statutory language and essential elements of the charged offense and the alleged permissive lesser-included offense. See Stoffel , 247 So.3d at 92.

Lewd or lascivious molestation occurs when "[a] person ... intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age[.]" § 800.04(5)(a), Fla. Stat. (2015). It is a life felony to commit lewd or lascivious molestation on or against a child under the age of twelve. See § 800.04(5)(b), Fla. Stat. The lesser-included offense of simple battery is defined as the intentional touching of another against that person's will. See § 784.03(1)(a) 1, Fla. Stat. (2015).

Thus, for Appellant to receive a permissive battery instruction on the lewd molestation charges: (1) the charging instrument must allege the statutory elements of battery, and if so, (2) there must have been evidence presented at trial to establish those elements. See Stoffel , 247 So.3d at 92. Given that lewd molestation also requires intentional touching, it is undisputed that this element was present in the charging instrument and evidence of this element was presented at trial. Accordingly, our analysis is dependent on the second element of battery: whether the touching was against the person's will.

The language of the charging information in the present case followed the lewd molestation statute for each count charged, respectively:

[O]n or about the 19th of May, 2015, in the County and State aforesaid, being a person of the age of eighteen (18) years or older, did intentionally touch in a lewd or lascivious manner the genital area, or the clothing covering it, of [Minor Victim], a person less than twelve (12) years of age, contrary to F.S. 800.04(5)(a) and F.S. 800.04(5)(b).

As seen above, the charging instrument clearly fails to allege that the charged offense was committed against the victims' will. Appellant attempts to circumvent the first condition of a permissive lesser-included instruction by claiming the "against that person's will" element of battery was implicitly alleged because the charging instrument claimed that the victims were under the age of twelve, thus entitling them to the conclusive presumption that a child under the age of twelve lacks the capacity to consent to or protect against an unlawful touch. Appellant points to the conclusive presumption embodied within section 794.011(2)(a), Florida Statutes (2014), as instructive:

The presumption of incapacity to consent is still embodied in current statutes defining sexual offenses. Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of incapacity to consent ends at age eleven. Subsections (3), (4) and (5) define sexual batteries involving victims twelve or older. To constitute sexual battery under those subsections, the State must prove the victim did not consent. This requirement recognizes that a person twelve or older has the ability to consent.

In contrast, subsection (2)(a) provides: "[A] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony." This subsection of the sexual battery statute does not explicitly mention consent because it incorporates the presumption that "a child of such immature age is incapable of either consenting to or protesting against the act." As noted by the court in Caulder v. State , 500 So.2d 1362, 1363–64 (Fla. 5th DCA 1986), in a prosecution for sexual battery on a child eleven years of age or younger, lack of consent is always an element because of the conclusive presumption that a child that age cannot consent. Thus, because lack of consent is an element of sexual battery under subsection (2)(a), the offense always includes a charge of simple battery as a necessarily lesser-included offense, just as it does under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 794.011.

Khianthalat v. State (Khianthalat I ), 935 So.2d 583, 585-86 (Fla. 2d DCA 2006) (emphases added) (footnote omitted), approved , 974 So.2d 359 (Fla. 2008).

In Khianthalat II , the defendant requested a simple battery instruction as a permissive lesser-included offense to lewd or lascivious battery on a child between the ages of twelve and sixteen. 974 So.2d at 360. There, the defendant argued, as Appellant argues here, "that because the victim is a minor she was not legally capable of consenting to sexual activity; thus, he was entitled to a battery instruction even though the information did not specifically allege and the evidence did not establish that he touched the victim against her will." Khianthalat I , 935 So.2d at 584. The Second District found the defense's argument confused "the unavailability of consent as a defense to a charge of lewd, lascivious, and indecent act with a child with the legal presumption that a child under the age of twelve cannot consent to sexual activity," and proceeded to dissect the defendant's argument by providing a review of the sexual battery statute. See id. at 584-86. Affirming the Second District, the Florida Supreme Court first determined that the conditions for a permissive lesser-included instruction had not been met. Khianthalat II , 974 So.2d at 361. Then, having decided the conditions had not been met, the Florida Supreme Court favorably quoted the Second District's discussion:

The fact that section 800.04 eliminates consent as a defense necessarily implies that the sexual activity may be consensual, but nevertheless, the State, as a matter of policy, will ignore the consent because of its legitimate interest in protecting minor from sexual exploitation. Because in

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