Chaplin v. State, 92-01289
| Decision Date | 11 August 1993 |
| Docket Number | No. 92-01289,92-01289 |
| Citation | 622 So.2d 165 |
| Parties | 18 Fla. L. Week. D1815 Michael H. CHAPLIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Brad Permar, Asst. Public Defender, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Donna Provonsha-Lentz, Asst. Atty. Gen., Tampa, for appellee.
Michael H. Chaplin challenges his convictions for capital sexual battery and two counts of lewd and lascivious act. We affirm in part and reverse in part.
We affirm his conviction for capital sexual battery without discussion.
We reverse his conviction for lewd and lascivious act as charged in count two of the information because the conduct alleged in that count formed the basis for the sexual battery conviction. One cannot be convicted for a lewd act under section 800.04, Florida Statutes (1991), concerning conduct that is also a sexual battery. See Sec. 800.04, Fla.Stat. (1991); State v. Hightower, 509 So.2d 1078, 1079 n. 4 (Fla.1987).
We affirm his conviction for lewd and lascivious act charged in count three of the information, which alleged that in November 1990, Mr. Chaplin
knowingly did commit a lewd and lascivious act in the presence of ... a child under the age of sixteen years, by willfully and knowingly exposing [his penis] to the view of [the child], and by soliciting and procuring [the child] to touch, feel or hold [his exposed penis], which act as stated was lewd and lascivious in the presence of said child....
The state presented sufficient evidence from which a jury could conclude that Mr. Chaplin knowingly exposed his penis to the child in a lewd and lascivious manner, but it produced no evidence that Mr. Chaplin solicited her to touch his penis. Mr. Chaplin contends that the trial court committed prejudicial error when it effectively amended the information, over defense objection, by deleting from the jury instructions the language that Mr. Chaplin had solicited the child to touch his exposed penis. See Johnson v. State, 190 So.2d 811 (Fla. 4th DCA 1966), cert. denied, 196 So.2d 925 (Fla.1967).
In Telfare v. State, 529 So.2d 1278, 1280 (Fla. 2d 1988), we held that "[w]here a statute provides a penalty for acts in the disjunctive and the indictment alleged the acts in the conjunctive, proof of one act will suffice," citing Booker v. State, 93 Fla. 211, 111 So. 476 (1927). Section 800.04(3) a...
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...upon a child under 12 years of age for conduct that also constitutes the crime of sexual battery under section 794.011. Chaplin v. State, 622 So.2d 165 (Fla. 2d DCA 1993). In the instant case, the victim was less than 12 years of age. Any activity proscribed in section 794.011(1)(h), perpet......
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