Graham v. State, 89-292

• Decision Date: 01 March 1990
• Docket Number: No. 89-292,89-292
• Citation: 557 So.2d 669
• Parties: 15 Fla. L. Weekly D575 Anthony GRAHAM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 669

557 So.2d 669

15 Fla. L. Weekly D575

Anthony GRAHAM, Appellant, v. STATE of Florida, Appellee.

No. 89-292.

District Court of Appeal of Florida,

Fifth District.

March 1, 1990.

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Laura Griffin, Asst. Atty. Gen., Daytona Beach, for appellee.

DANIEL, Chief Judge.

Defendant, Anthony M. Graham, appeals from the sentence imposed following his plea of no contest to the charge of lewd and lascivious assault upon a child in violation of section 800.04, Florida Statutes (1987). ¹ Defendant argues that the reasons stated by the trial court for imposing a departure sentence are invalid. We agree and reverse.

Following the entry of the defendant's plea of no contest, the trial court adjudged the defendant to be guilty, departed from the guidelines, and sentenced him to 15 years incarceration. The trial court prepared a written order for such departure stating as its reasons, the following:

1. The fact that the offense was committed in the same room and in close proximity to the victim M.K.'s sister who was only 5 years of age.

2. The age of the victim, M.K., to wit: eight (8) years, and the fact that said child was vulnerable because of her age.

3. The victim M.K. was vulnerable because she was at home asleep when the defendant approached her to commit the offense.

4. The victim M.K. was vulnerable because the defendant stood in a position of trust as baby sitter to the victim, which position the defendant abused in committing the instant offenses.

We consider the given reasons seriately.

1. The fact that the offense was committed in the same room and in close proximity to the victim M.K.'s sister who was only 5 years of age.

The record contains no evidence to support the trial court's finding that the offense was committed in the same room and in close proximity to the victim's sister. There being nothing of record to support such finding, such reason cannot be held to be a valid reason for departure. See Duncan v. State, 532 So.2d 674 (Fla. 1st DCA 1988).

2. The age of the victim, M.K., to wit: eight (8) years, and the fact that said child was vulnerable because of her age.

This is not a proper reason for departure since the age of the victim is itself an inherent component of the offense charged. See Molden v. State, 530 So.2d 1000 (Fla. 1st DCA 1988). See also § 800.04, Fla.Stat. (1987).

3. The victim M.K. was vulnerable because she was at home asleep when the defendant approached her to commit the offense.

This is also not a valid reason for departure. See Williams v. State, 492 So.2d 1308 (Fla.1986), in which the supreme court stated:

The final reason the trial court gave for departing from the guidelines was that the defendant stabbed the victim while she was sleeping and therefore more vulnerable. This factor alone is not a clear and convincing reason to depart.

492 So.2d at 1309. See also Grant v. State, 547 So.2d 952 (Fla. 3d DCA 1989); Brown v. State, 511 So.2d 719 (Fla. 1st DCA 1987).

4. The victim M.K. was vulnerable because the defendant stood in a position of trust as baby-sitter to the victim, which position the defendant abused in committing the instant offenses.

This court, in Laberge v. State, 508 So.2d 416 (Fla. 5th DCA 1987), specifically held that departure from the recommended guidelines sentence for the offense of lewd and lascivious assault could not be based on a finding that the child victim was vulnerable or upon a finding that the defendant had abused a position of trust. In Laberge, the defendant was found guilty of committing a lewd assault upon an 8 year old autistic child who was attending the school at which the defendant was employed as a teacher's aid. In reviewing the departure sentence imposed, we stated:

Everyone in society is vulnerable and must trust others to not harm or hurt or steal. Everyone who breaks a criminal law violates this trust. Being naturally innocent in sexual matters, all children are especially vulnerable to the physical, mental, and emotional harm that can result from exposure to gross adult lewd acts. To protect children from that harm is the very purpose for section 800.04, Florida Statutes, which prohibits lewd acts on, or in the presence of, children. While, of course, some such acts are committed by strangers to the children, unhappily experience shows that such statutes are most commonly violated by persons who take advantage of a trust position involving the care, custody, teaching, and training of children, such as educational, religious, social, and child care workers, relatives, stepparents, and baby sitters (a true one-to-one trust relationship). Because it is only a difference in degree that all children are vulnerable to being victimized by lewd acts and because all who violate this statute also violate some degree of trust, departure from the recommended guidelines sentence for the basic offense of lewd acts on or in the presence of a child (section 800.04, Florida Statutes), should not be based on these two particular factors. (footnote omitted).

* * * * * *

In considering whether emotional harm is a valid reason for departure in sexual battery cases, the supreme court in Lerma v. State, 497 So.2d 736, 739 (Fla.1986) stated that "emotional hardship can never constitute a clear and convincing reason to depart in a sexual battery case because nearly all sexual battery cases inflict emotional harm on the victim." (emphasis supplied). We understand Lerma to hold that any factor, though not an element of the offense, that is commonly appurtenant to the offense, such as emotional harm in a sexual battery case, should not be used to authorize a departure sentence because, contrary to the intent of guidelines sentencing, a departure sentence, rather than the recommended sentence, could be authorized in most cases. All we hold here is that as emotional harm is a common factor to sexual battery, so "vulnerability" and "breach of trust" are factors common in child molestation cases. Abuse of trust and vulnerability are somewhat vague, subjective concepts. If they are held to authorize departure sentences, the "exceptional case" will become the rule, and departure sentences, rather than recommended sentences, will be authorized in a large percentage of all sentences based on violations of section 800.04, Florida Statutes.

508 So.2d at 417-418. See also Harper v. State, 521 So.2d 163 (Fla. 5th DCA 1988).

The state acknowledges Laberge but argues that this court should recede therefrom, pointing out that the first and the third districts have ruled that violation of a position of trust is a valid reason for departing from the sentencing guidelines in child molestation cases. See Gopaul v. State, 536 So.2d 296 (Fla. 3d DCA 1988); Ross v. State, 478 So.2d 480 (Fla. 1st DCA 1985); Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984), review denied, 471 So.2d 44 (Fla.1985).

The state also urges this court to recede from Laberge because in Davis v. State, 517 So.2d 670 (Fla.1987), the supreme court made reference to the decision in Williams. In Davis, the defendant pleaded guilty to second degree murder resulting from the shooting death of her husband. In sentencing the defendant, the trial court exceeded the guidelines based in part on the defendant's abuse of the trust of the family relationship. The district court affirmed. On review, the supreme court reversed, explaining as follows:

The second reason for departure, abuse or breach of trust, has been found to constitute a clear and convincing reason to justify departure in some situations. See Hankey v. State, 485 So.2d 827 (Fla.1986) (burglary victim gave defendant job and entrusted him with key to fulfill duties and defendant abused position by using key to enter place of business after hours and steal money and items of value); Gardener v. State, 462 So.2d 874 (Fla. 2d DCA 1985) (teacher abused position of trust by selling cocaine on school property). See also Steiner v. State, 469 So.2d 179 (Fla. 3d DCA) review denied, 479 So.2d 118 (Fla.1985). In each of these cases, the crime committed was directly related to the trust conferred on the defendant and the trust was the matter that made possible the commission of the crime. In the instant case, no particular trust bestowed on Davis by the victim formed the foundation of the crime; the crime was not directly related to a specific trust as in the above cases. In Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984), review denied, 471 So.2d 44 (Fla.1985) relied on by the district court below, an upward departure was upheld based on the fact that the stepfather used...