Garcia v. State

• Decision Date: 01 August 2014
• Docket Number: No. 2D13–805.,2D13–805.
• Citation: 143 So.3d 1105
• Parties: Jose L. GARCIA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

143 So.3d 1105

Jose L. GARCIA, Appellant,
v.
STATE of Florida, Appellee.

No. 2D13–805.

District Court of Appeal of Florida,
Second District.

Aug. 1, 2014.

[143 So.3d 1106]

Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Jose L. Garcia appeals his judgment and sentence of life in prison for capital sexual battery. We reverse the judgment and sentence and remand for a new trial because the trial court instructed the jury using the wrong standard instruction. This error resulted in the jury receiving an instruction that contained a wrong element of the offense when that element was in dispute and material to the jury's deliberations.

The amended information in this case charged a single count of capital sexual battery. Specifically, it alleged that on July 31 or August 1 of 2011, Mr. Garcia placed his finger into the vagina of the victim, who was less than twelve years of age. See§ 794.011(2)(a), Fla. Stat. (2011). The information also alleged that the act was done in “a lewd, lascivious or indecent manner,” which was not necessary to establish the elements of capital sexual battery.

The trial court prepared the draft jury instructions and verdict form and provided them to the attorneys on the morning of the second day of trial. There was a serious error in these documents, but the lawyers did not object. The trial court properly used Florida Standard Jury Instruction 11.1 as its core instruction for capital sexual battery. But it selected element 2(a) from the options available for that element. Thus, the instruction read:

[T]he State must prove the following three elements beyond a reasonable doubt:

....

2. Jose L. Garcia committed an act upon (victim) in which the finger of Jose

[143 So.3d 1107]

L. Garcia penetrated or had union with the vagina of (victim).

This instruction is not intended for use in cases alleging sexual battery where the unlawful contact involves the defendant's finger.

Element 2(b) of the standard instruction actually applied in this case. That standard instruction reads: “(Defendant) committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.” Admittedly, “an object” is a broad concept. Sometimes this instruction is modified to state that the defendant committed an act upon the victim in which the vagina of the victim was penetrated by the defendant's finger.

Thus, the offense charged required proof that Mr. Garcia penetrated the victim's vagina with his finger. The jury instruction actually given allowed the jury to convict him upon evidence that his finger had “union” with the victim's vagina. Evidence of such “union” would be sufficient to prove lewd or lascivious molestation under section 800.04(5), Florida Statutes (2011), but it would not support a conviction for capital sexual battery.¹

Because this error was not preserved in the trial court, the primary question is whether the error is fundamental. Recently, in Daniels v. State, 121 So.3d 409, 418 (Fla.2013), the supreme court reconfirmed the test for fundamental error in an instruction involving the elements of the charged offense, which it had earlier announced in Reed v. State, 837 So.2d 366, 369–70 (Fla.2002). It stated:

Accordingly, where the trial court fails to correctly instruct on an element of the crime over which there is dispute, and that element is both pertinent and material to what the jury must consider in order to decide if the defendant is guilty of the crime charged or any of its lesser included offenses, fundamental error occurs.

Daniels, 121 So.3d at 418; see also Haygood v. State, 109 So.3d 735, 741 (Fla.2013) (“[F]undamental error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.”).

A review of the record establishes that the issue of penetration was in dispute and that the distinction between “union” and “penetration” was very pertinent and material to what the jury was required to consider in order to decide if Mr. Garcia was guilty of the crime charged. The victim in this case was about eleven when the event occurred and twelve when she testified. She testified that she fell asleep while sitting next to Mr. Garcia in a recliner. When she woke up, one of his “hands” was in her “underwear.” The transcript then reflects the following questions and answers:

Q. What did you feel?

A. His finger.

Q. Okay. And where was his finger?

A. In my vagina.

Q. Did you call it a vagina back then or was it something else?

A. I...