Hallberg v. State, 91-03268

CourtCourt of Appeal of Florida (US)
Writing for the CourtCAMPBELL; BLUE; ALTENBERND; ALTENBERND
Citation621 So.2d 693
Parties18 Fla. L. Week. D1196 James HALLBERG, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 91-03268,91-03268
Decision Date05 May 1993

Page 693

621 So.2d 693
18 Fla. L. Week. D1196
James HALLBERG, Appellant,
v.
STATE of Florida, Appellee.
No. 91-03268.
District Court of Appeal of Florida,
Second District.
May 5, 1993.
Rehearing Denied July 23, 1993.

Page 694

Robert L. Doyel, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee.

CAMPBELL, Acting Chief Judge.

Appellant, James Hallberg, challenges his convictions and sentences totaling twenty-seven years in prison imposed for five counts of committing a lewd act upon a child (Sec. 800.04, Fla.Stat. (1987)) and three counts of engaging a child in sexual activity (Sec. 794.041(2)(b), Fla.Stat. (1987)). We affirm appellant's convictions, but reverse his sentences and remand for resentencing.

Each of the acts was charged by information to have occurred between June 1, 1988 and August 31, 1988. The child, S.S. was fourteen years old on June 7, 1988. Count I charged appellant with violating section 800.04(3) (lewd act upon a child) by committing an act defined as sexual battery under section 794.011(1)(h), Florida Statutes (1987) on S.S., who was then under the age of sixteen years, by penetrating or having union with the vagina of S.S. with his penis, but without committing the crime of sexual battery. Count II charged that the same act alleged in Count I, penile penetration of S.S.'s vagina, constituted the crime of sexual activity with a child twelve years of age or older, but less than eighteen years of age, by a person (appellant) in a position of familial or custodial authority with the child (Sec. 794.041(2)(b)). Count III charged appellant with violating section 800.04(3) (lewd act upon a child) by committing a sexual battery on S.S. by causing his penis to penetrate or have union with the mouth of S.S., without committing the crime of sexual battery. Count IV of the information charged that the same act alleged in Count III, appellant's penile penetration of the mouth of S.S., constituted the crime of sexual activity with a child by a person in a position of familial or custodial authority with the child (Sec. 794.041(2)(b)). Count V charged appellant with violating section 800.04(3) (lewd act upon a child) by committing a sexual battery upon S.S. by penetrating the vagina of S.S. with appellant's fingers without committing the crime of sexual battery. Count VI charged that a similar act as alleged in Count V, vaginal penetration of S.S. with appellant's fingers, constituted the crime of sexual activity with a child by a person in a position of familial or custodial authority with the child (Sec. 794.041(2)(b)). The offenses charged in Counts V and VI, while being similar acts, were not necessarily the same act committed at the same time, as S.S. testified that such digital penetration of her vagina took place on at least six different occasions between June 1, 1988 and August 31, 1988. Count VII charged appellant with violating section 800.04(1) (lewd act upon a child) by fondling the breasts of S.S. Count VIII charged appellant with violating section 800.04(1) (lewd act upon a child) by fondling the vaginal area of S.S. A jury found appellant guilty of each offense as charged. The trial judge sentenced appellant to ten years in

Page 695

prison on each of the five counts charging lewd act upon a child, Counts I, III, V, VII and VIII, and to twenty-seven years in prison on each of the three counts charging that appellant, in a position of familial or custodial authority, had engaged a child in sexual activity, Counts II, IV and VI, with all sentences to be concurrent. The guidelines scoresheet utilized by the trial judge reflected a recommended sentence of twenty-five years in prison with a permitted range of seventeen to forty years in prison.

Essential Facts

Appellant was a junior high school American History teacher. In the 1987-1988 school year, appellant had then thirteen-year-old S.S. as one of his students in his eighth grade honors American History class. S.S. was also a member of the E-team, a group of about five junior high students who competed with students from other schools mostly on the subject of economics. Appellant was the teacher-counselor for the E-team. During the 1987-1988 school year, appellant and S.S. began to develop a close personal relationship. They exchanged cards and gifts on special occasions. Appellant often drove S.S. home after school and after E-team events. S.S. testified that appellant discussed his marital problems with her and offered her encouragement and advice in matters regarding school and her family. S.S. also testified that in the spring of 1988 their relationship grew more intensely personal and began to involve physical contact both at school and away from school. S.S. testified that appellant told her he loved her and wanted to marry her when she graduated from high school. She testified he would insist that she come by his classroom nearly daily during school hours when he was alone, and that behind his locked classroom door he began to kiss her and fondle her breasts and vaginal areas. She testified she did these things with appellant because she "was afraid of him." S.S. testified: "Since the first time he kissed me, he would tell me that if I ever told anyone he would have to do something he'd regret, and I took that as a threat."

As the end of the school year approached in the spring of 1988, S.S. was scheduled to again have appellant as her history teacher for the next school year, her ninth grade year. The junior high school where appellant taught and in which S.S. was a student had not only the regular academic classes and the honors classes for more gifted students, but it also had "Alpha" classes, a more advanced type of honors class. Appellant was scheduled to teach an Alpha history class during the 1988-1989 school year, and S.S. was scheduled to be one of his students. Appellant had never previously taught an Alpha class. S.S. testified that as the 1987-1988 school year (her eighth grade) drew to a close:

Sometime in May he [appellant] approached me and told me he couldn't go the entire summer without seeing me, and I was going to have him again the next year because he was going to be teaching Alpha history and he had never taught that class before. And he told me that since I'd been in Alpha he wanted me to help prepare--help him prepare for the class.

S.S. testified that in order to carry out that plan, shortly after school was out in June 1988, appellant arranged to give her the book they would be using the next year in the Alpha history class. She testified he wanted her to look over the book during the summer recess to think of projects and other work they would be able to do in the class. She testified that several weeks after school was out appellant brought the text material to her home where she was alone and again told her what he wanted her to do. The following testimony as to that occasion and subsequent events is pertinent:

Q. When he came over, what did he do?

A. I opened the door, and he just kind of brushed past me and walked in and sat down. And he had the book, the textbook with him. And he told me again what he wanted me to do.

Q. When was the next time he came over?

A. About a week later.

Page 696

Q. Why did he come then?

A. He said he wanted to see me.

Q. He came to your house?

A. Yes.

Q. And when did he tell you he wanted to see you?

A. When he got there.

Q. Okay. Did he call you and tell you he was coming over?

A. No.

Q. Did anything happen when he visited you that time?

A. Yes.

Q. What happened?

A. He started talking about his wife again. And he said he was sorry people wouldn't be able to understand our relationship.

Q. Did he say anything else?

A. Just how much he loved me.

Q. Did he do anything else?

A. Yes.

Q. What did he do?

A. He was kissing me again.

Q. How was he kissing you, [S.S.]?

A. French kiss, and he also kissed me on my face.

Q. Did he do anything else?

A. Yes.

Q. What did he do?

A. He had his hands on my breasts again and in between my legs.

Q. Did he touch you over your clothes or under your clothes?

A. At first over. And then he undid my shorts and put his hand under my shorts.

Q. Did he touch you over your underpants or under your under pants?

A. Under.

Q. How did he touch you there? How did he touch you there?

A. He put one of his fingers inside of me.

Q. How long did he do that?

A. A couple of minutes.

Q. Did he say anything to you when he was doing this?

A. He told me that this is kind of what it feels like to have sex.

Q. And what was your response to that?

A. I started crying.

Q. Did he do anything else?

A. No.

Q. How long was he there that day?

A. I guess about an hour, hour-and-a-half.

Q. Do you remember what time of the day it was when he first got there?

A. Around 1:30.

Q. Do you remember what day it was, what day of the week it was?

A. It was a Tuesday or a Thursday, because I'd had a tennis lesson.

Q. When is your tennis lesson?

A. Tuesday and Thursday.

Q. From what time?

A. From 10:00 to 11:00 in the morning.

Q. Okay, [S.S.]. Tell us about the last time that the defendant came to visit you at your house in the summer of 1988.

A. It was towards the end of July or early August.

Q. End of July or early August?

A. Yes.

Q. And did he come to visit you at your house?

A. Yes.

Q. Did he tell you why he came?

A. He had been on vacation, and he brought me a vase home from where they went, and he said he wanted to give that to me.

Q. And then what, if anything, happened?

A. He sat down on the couch and put his arm around me, and we just sat there for a few minutes.

Q. Did you all speak?

A. Not that I remember.

Q. Did he say anything to you?

Page 697

A. I think he told me he loved me again, but that's all I remember.

Q. How long did he stay on the couch?

A. Well, a few minutes while we were sitting there. And then he...

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9 practice notes
  • Audano v. State, No. 93-00494.
    • United States
    • Court of Appeal of Florida (US)
    • August 17, 1994
    ...testimony of the victim that the defendant had committed the sexual abuse upon the victim. Heuring. Our decision in Hallberg v. State, 621 So.2d 693, 701-03 (Fla. 2d DCA 1993) (Altenbernd, J., dissenting in part), review denied, 634 So.2d 627 (Fla. 1994), addresses at length the case law in......
  • Woolman v. State, Case No. 2D17-4459
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 2020
    ...Instr. (Crim.) 11.6.3 Although the supreme court agreed with the reasoning of the dissent in this court's decision in Hallberg v. State, 621 So. 2d 693, 705-06 (Fla. 2d DCA 1993) (Altenbernd, J., concurring in part and dissenting in part), which acknowledged that "[c]oncerning a child, [cus......
  • Hull v. State, No. 96-1180
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1996
    ...or obligation to care for the other," see Hallberg v. State, 649 So.2d 1355, 1357 (Fla.1994)(quoting with approval Hallberg v. State, 621 So.2d 693, 705-06 (Fla. 2d DCA 1993) (Altenbernd, J., concurring in part and dissenting in part)), which are indispensable to a finding of the "familial ......
  • McConn v. State, No. 93-02870
    • United States
    • Court of Appeal of Florida (US)
    • January 13, 1995
    ...one can logically commit a lewd and lascivious act that is not the crime of sexual battery but is sexual activity. In Hallberg v. State, 621 So.2d 693 (Fla. 2d DCA 1993), rev'd on other grounds, 649 So.2d 1355 (Fla.1994), we held that a defendant could be convicted of both sexual activity w......
  • Request a trial to view additional results
9 cases
  • Audano v. State, No. 93-00494.
    • United States
    • Court of Appeal of Florida (US)
    • August 17, 1994
    ...testimony of the victim that the defendant had committed the sexual abuse upon the victim. Heuring. Our decision in Hallberg v. State, 621 So.2d 693, 701-03 (Fla. 2d DCA 1993) (Altenbernd, J., dissenting in part), review denied, 634 So.2d 627 (Fla. 1994), addresses at length the case law in......
  • Woolman v. State, Case No. 2D17-4459
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 2020
    ...Instr. (Crim.) 11.6.3 Although the supreme court agreed with the reasoning of the dissent in this court's decision in Hallberg v. State, 621 So. 2d 693, 705-06 (Fla. 2d DCA 1993) (Altenbernd, J., concurring in part and dissenting in part), which acknowledged that "[c]oncerning a child, [cus......
  • Hull v. State, No. 96-1180
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1996
    ...or obligation to care for the other," see Hallberg v. State, 649 So.2d 1355, 1357 (Fla.1994)(quoting with approval Hallberg v. State, 621 So.2d 693, 705-06 (Fla. 2d DCA 1993) (Altenbernd, J., concurring in part and dissenting in part)), which are indispensable to a finding of the "familial ......
  • McConn v. State, No. 93-02870
    • United States
    • Court of Appeal of Florida (US)
    • January 13, 1995
    ...one can logically commit a lewd and lascivious act that is not the crime of sexual battery but is sexual activity. In Hallberg v. State, 621 So.2d 693 (Fla. 2d DCA 1993), rev'd on other grounds, 649 So.2d 1355 (Fla.1994), we held that a defendant could be convicted of both sexual activity w......
  • Request a trial to view additional results

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