Graham v. State
| Decision Date | 08 July 2015 |
| Docket Number | No. 1D14–2474.,1D14–2474. |
| Citation | 170 So.3d 141 |
| Parties | Marcus Jamal GRAHAM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
Marcus Jamal Graham appeals his convictions for two counts of lewd or lascivious molestation, arguing that his convictions violate double jeopardy and that the trial court improperly restricted his cross-examination of key witnesses. Because Graham's convictions are based on distinct acts and the trial court properly limited cross-examination, we affirm.
Graham was convicted of two counts of lewd or lascivious molestation for touching the victim's breasts and buttocks, or the clothing covering them, in violation of section 800.04(5)(a), Florida Statutes (2013). The testimony at trial established that there was no temporal break between the touchings and that they occurred during the same episode. Because the touchings occurred during a single criminal episode, Graham argues that his convictions violate double jeopardy. We disagree.
The United States and Florida Constitutions contain double jeopardy clauses designed to prevent a person from receiving multiple punishments for the same criminal offense. State v. Drawdy, 136 So.3d 1209, 1213 (Fla.2014). We review de novo whether a double jeopardy violation has occurred. Id. To determine whether the imposition of separate punishments for offenses occurring during the course of a single criminal episode violates double jeopardy, courts use the Blockburger1 test. However, there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal episode as long as the legislature intended to authorize separate punishments. Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009) ; Partch v. State, 43 So.3d 758, 759–60 (Fla. 1st DCA 2010). Where, as in this case, there is no clear legislative intent and the offenses occurred during the same episode, the court must determine whether the offenses are predicated on more than one distinct act. Sanders v. State, 101 So.3d 373, 374 (Fla. 1st DCA 2012). If the offenses are predicated on multiple acts, then there is no double jeopardy violation. Id.
Because the Florida sexual battery statutes and lewd or lascivious battery statutes may be violated in multiple, alternative ways, convictions for “sexual acts of a separate character and type requiring different elements of proof” do not violate double jeopardy because the acts are “distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.”State v. Meshell, 2 So.3d 132, 135 (Fla.2009) ; §§ 794.011(1)(h), 800.04(1)(a), Fla. Stat. (2013) (). Similar to the sexual battery and lewd or lascivious battery statutes, the lewd or lascivious molestation statute also provides multiple, alternative ways to violate the statute. The statute proscribes the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them ....” § 800.04(5)(a), Fla. Stat. (2013). Thus, the acts proscribed by the lewd or lascivious molestation statute are distinct criminal acts that warrant multiple punishments. See Roberts v. State, 39 So.3d 372, 374 (Fla. 1st DCA 2010).
Here, Graham was convicted of two counts of lewd or lascivious molestation and the information and the jury verdict demonstrate that the charges were predicated on two distinct acts: touching of the victim's breasts, or the clothing covering them, and touching of the...
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