Capron v. State, No. 5D05-4154.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Orfinger
• Citation: 948 So.2d 954
• Docket Number: No. 5D05-4154.
• Decision Date: 16 February 2007
• Parties: Bertram L. CAPRON, Appellant, v. STATE of Florida, Appellee.

948 So.2d 954 Bertram L. CAPRON, Appellant,
v.
STATE of Florida, Appellee. No. 5D05-4154. District Court of Appeal of Florida, Fifth District. February 16, 2007.

[948 So.2d 956]

James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, J.

Bertram L. Capron appeals his convictions of two counts of lewd and lascivious battery (section 800.04(4)(a), Florida Statutes (2004)), one count of lewd and lascivious conduct (section 800.04(6)(b)), one count of lewd and lascivious molestation (section 800.04(5)(c)(2)), and one count of lewd and lascivious exhibition (section 800.04(7)(c)), as a result of the State charging him with having sexual activity with M.W., a fifteen-year-old girl. On appeal, Mr. Capron contends that the State committed fundamental error during its closing argument to the jury, and that several of his convictions are barred by double jeopardy.

The charges against Mr. Capron arose after he spent a weekend in a motel with M.W. According to M.W., during the course of the weekend, Mr. Capron engaged in sexual activity with her and in her presence. The jury found Mr. Capron guilty on all charges and he was sentenced to concurrent terms of eighteen years in prison on each charge, except for a five-year term on lewd and lascivious exhibition.

Mr. Capron first argues that he is entitled to a new trial because the State's improper and prejudicial comments in the closing arguments amounted to fundamental error. Mr. Capron asserts that the State's closing arguments were riddled with improper comparisons to the O.J. Simpson case, and the prosecutor's personal opinion regarding Mr. Capron's guilt as well as improper statements that bolstered the victim's testimony. The State responds that its closing arguments were fair comments on the evidence and made to rebut arguments put forth during Mr. Capron's closing. The State contends that none of the statements were improper and certainly did not rise to the level of fundamental error.

All trial errors (except those constituting fundamental error), including improper comments during closing argument, must be preserved for appeal by making a contemporaneous objection. Pedroza v. State, 773 So.2d 639, 640-41 (Fla. 5th DCA 2000). If a party makes a contemporaneous objection to an improper comment that is sustained by the trial judge, the party must request a curative instruction or move for mistrial if he or she wishes to preserve the objection for appellate review. Id. at 641. In the present case, Mr. Capron admits that his counsel did not preserve the alleged errors for appeal. Consequently, in order to be afforded relief on appeal, the challenged comments must be so prejudicial as to constitute fundamental error. See Randolph v. State, 853 So.2d 1051, 1067 (Fla.2003); Street v. State, 636 So.2d 1297, 1303 (Fla. 1994); Fuller v. State, 540 So.2d 182, 184 (Fla. 5th DCA 1989). This Court has held that fundamental error in closing argument occurs when the prejudicial conduct, in its collective import, is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration

948 So.2d 957

of the evidence and the merits by the jury. See Caraballo v. State, 762 So.2d 542, 546-47 (Fla. 5th DCA 2000); Jones v. State, 666 So.2d 995, 997 (Fla. 5th DCA 1996).

Having considered the State's arguments carefully, we do not conclude that fundamental error occurred. Indeed, the only comments that are close were the State's two brief references to the O.J. Simpson case. These remarks, while ill-advised and unnecessary, did not characterize Mr. Capron as O.J. Simpson or "improperly appeal to juror sense of community by improperly appealing to their emotions, bias and fears in an attempt to improperly prejudice them against [Mr. Capron]." Cf. DeFreitas v. State, 701 So.2d 593, 601 (Fla. 4th DCA 1997) (comparison of case to O.J. Simpson case "coupled with reference to [defendant] as a stalker, possessive ex-boyfriend who disapproved of his ex-girlfriend's friends" violated rule of inflammatory argument).

Next, Mr. Capron asserts that his convictions for lewd and lascivious battery, lewd and lascivious molestation, lewd and lascivious conduct, and lewd and lascivious exhibition should be reversed because they are all based on the same acts that occurred on Friday at the motel, violating the prohibition against double jeopardy. The State responds that the acts were separated by enough time for Mr. Capron to stop, reflect, and form a new criminal intent. If the State's argument is correct, there was no double jeopardy violation.¹

Questions of law, such as whether separately convicting Mr. Capron for lewd and lascivious battery, lewd and lascivious conduct, lewd and lascivious molestation and lewd and lascivious exhibition violate double jeopardy principles, are reviewed de novo. See United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1025 (10th Cir. 1996); State v. Florida, 894 So.2d 941, 945 (Fla.2005); Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000). The defendant bears the burden of proving a claim of double jeopardy. Rodriguez-Aguirre, 73 F.3d at 1025 (citing United States v. Daniels, 857 F.2d 1392, 1394 (10th Cir.1988)); see also Koon v. State, 463 So.2d 201, 203 (Fla.1985) (stating that it was defendant's burden to show a double jeopardy violation).

The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also State v. Wilson, 680 So.2d 411, 413 (Fla.1996). "The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature `intended to authorize separate punishments for the two crimes.'" Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)).

948 So.2d 958

Section 800.04 contains no clear statement of legislative intent. See State v. Paul, 934 So.2d 1167, 1172 (Fla.2006). Thus, we employ the two-part Blockburger² test, codified at section 775.021(4)(a), Florida Statutes, to determine whether separate offenses exist. The first part of the Blockburger test sets forth the "same elements test," which prohibits courts from imposing multiple convictions for an act or acts that occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses. The second part provides that even if each of the offenses has an element that the other does not, the court must determine if any of the exceptions set forth in section 775.021(4)(b) applies and precludes separate convictions and...