Hallberg v. State

• Decision Date: 27 October 1994
• Docket Number: No. 82189,82189
• Citation: 649 So.2d 1355
• Parties: 98 Ed. Law Rep. 1120, 19 Fla. L. Weekly S546 James HALLBERG, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1355

649 So.2d 1355

98 Ed. Law Rep. 1120, 19 Fla. L. Weekly S546

James HALLBERG, Petitioner, v. STATE of Florida, Respondent.

No. 82189.

Supreme Court of Florida.

Oct. 27, 1994.

Robert L. Doyel, Bartow, for petitioner.

Robert A. Butterworth, Atty. Gen., and Robert J. Krauss, Asst. Atty. Gen., Chief of Crim. Law, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for respondent.

OVERTON, Justice.

This is a petition to review Hallberg v. State, 621 So.2d 693 (Fla. 2d DCA 1993), in which the district court affirmed James Hallberg's convictions on five counts of committing a lewd act upon a child and three counts of engaging a child in sexual activity by a person in a position of familial or custodial authority. The issue in this case concerns the interpretation and application of the statutory term "person who stands in a position of familial or custodial authority to a child," under section 794.041, Florida Statutes (1987). We find conflict with Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), and have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const.

While we approve Hallberg's convictions on the five counts of committing a lewd act upon a child, we find that we must quash the district court's decision to the extent that it affirms Hallberg's conviction on the three counts of engaging a child in sexual activity by a person in a position of familial or custodial authority under section 794.041 because we find that a teacher, without any teaching responsibility or extracurricular activity supervisory authority over a child during a summer recess, is not in a position of custodial authority.

The record reflects that, during the regular school year, James Hallberg was a junior high school teacher for an honors class in which the victim, S.S., was enrolled and that he was also the sponsor of a school club in which S.S. was a member. During the school year ending in May 1988, while S.S. was in the eighth grade, Hallberg and S.S. developed a close personal relationship.

In June 1988, after school had recessed for the summer and just prior to S.S.'s fourteenth birthday, Hallberg went to S.S.'s home, ostensibly to give her some materials to review in anticipation of the upcoming school year. S.S. testified that Hallberg came to her house seven to ten times that summer and that on those occasions he fondled her breasts each time and fondled and penetrated her vaginal area with his fingers on all but the first visit. S.S. testified that on the last visit that summer Hallberg forced her to perform oral sex on him after which he then performed oral sex on her. This particular visit ended with Hallberg having intercourse with S.S. All of the above described visits took place when S.S.'s parents were not at home. It is undisputed that these events did not occur during the school year and that they did not occur in connection with Hallberg's assigned teaching responsibilities or a recognized extracurricular event. Further, S.S.'s parents were generally aware that this teacher wanted S.S. to help him with a history project during the summer, but Hallberg's visits were not scheduled with the parents' knowledge or consent and he appeared at the house and entered when only S.S. was home.

Based on these acts, Hallberg was convicted on five counts of committing a lewd act upon a child, section 800.04, Florida Statutes (1987) ¹, and three counts of engaging a child in sexual activity by a person in a position of familial or custodial authority. Sec. 794.041(2)(b), Fla.Stat. (1987). ² Hallberg was sentenced to ten years for each of the lewd act counts and twenty-seven years for each of the sexual activity by a custodial authority counts, all to run concurrently. Hallberg appealed to the Second District Court of Appeal and raised numerous issues concerning his convictions and sentences. The district court held that none of the issues concerning Hallberg's convictions would entitle him to relief and affirmed his convictions, but remanded Hallberg's sentences for reconsideration and resentencing based on an error in the guidelines scoresheet.

Hallberg raises five issues before this Court, specifically that: (1) Hallberg did not stand in a familial or custodial relationship to the victim; (2) the three counts of lewd act on a child are lesser included offenses of the three counts of engaging a child in sexual activity so that multiple punishments were imposed on Hallberg, resulting in a violation of the double jeopardy clause; (3) the convictions should be reversed for denial of the requested lesser offense instructions; (4) the testimony of the alleged victim is insufficient to support the jury verdict; and (5) it was reversible error to deny Hallberg's motion for a new trial based on newly discovered evidence. We find that issues (3), (4), and (5) were properly resolved by the district court and we approve Hallberg's five convictions of lewd acts. Based on our resolution of the first issue, we need not address the double jeopardy issue.

The principal issue on appeal is whether Hallberg was in a position of "familial or custodial authority" to this child. The district court took a broad view of the term "custodial," finding that "a school teacher stands in a position of custodial authority to a child who is a student of the teacher," noting that, in its view, "it is the position occupied that is the essential element of the offense rather than the exercise of authority pursuant to the position occupied." Hallberg, 621 So.2d at 703. The fact that this took place during a summer recess was not, in the view of the majority, a controlling factor. Judge Altenbernd dissented, concluding that a jury was not authorized to find that Hallberg stood in a position of custodial authority under the circumstances of this case.

At the outset, it is important to note that the State concedes that Hallberg was not in a position of "familial" authority; further, it is important to note that the events did not occur during the school year or on school premises; nor did they occur in connection with activities of a recognized teaching or extracurricular event. Hallberg in this instance went to S.S.'s home after summer vacation had begun. The State raises three arguments to support its position that Hallberg was in a position of custodial authority over S.S. at the time of the offenses. First, the State argues that, based on his status as S.S.'s teacher, Hallberg was her custodian at the time of the incidents, reasoning that teachers stand, to a limited extent, in loco parentis to their students and are legally responsible for their welfare; second, the State contends that S.S.'s parents consented to Hallberg's visits and thus vested him with custodial authority over S.S.; and, third, the State, relying on Collins v. State, 496 So.2d 997 (Fla. 5th DCA 1986), review denied, 506 So.2d 1040 (Fla.1987), argues that the close relationship between Hallberg and S.S. places Hallberg in a custodial status. We reject these arguments and find that teachers are not, by reason of their chosen profession, custodians of their students at all times, particularly when school is recessed for the summer. We agree with the following analysis by Judge Altenbernd:

These events did not occur during the school year or on school premises. They did not occur in connection with the activities of a recognized extracurricular event such as band or drama club. Mr. Hallberg went to the home of S.S. in the middle of summer vacation. Although the parents of S.S. were generally aware that this man wanted S.S. to help him with a history project during the summer, these visits were not scheduled with her parents' knowledge or consent. He simply showed up at the front door with a textbook and talked his way inside the house when only S.S. was at home.

A "custodian" is someone who has custody of another. See Webster's Third New International Dictionary 559 (1986). "Custody" connotes a duty or obligation to care for the other. Concerning a child, it usually implies that the person has some responsibilities in loco parentis. I admit that, in some situations, school authorities have been held to stand in loco parentis to their students. See, e.g., Rupp v. Bryant, 417 So.2d 658 (Fla.1982) (because principal and teacher partially stand in place of student's parents, they had duty to protect student from injuries occurring off school grounds but during hazing by school club where principal and teacher knew of club's propensity for violating school board rules regarding extent of club activities); Nelson v. State, 319 So.2d 154 (Fla. 2d DCA 1975) (school officials have responsibility for safety and welfare of students while on school grounds and under their supervision and charge; thus, doctrine of in loco parentis allows school personnel to search student on reasonable suspicion that student is or was involved in criminal activity). Employing a strict construction of section 794.041(2), however, I cannot agree that Mr. Hallberg's status as a teacher created a jury question when these liaisons, however reprehensible, were so far removed from both the time and place of his responsibilities as a teacher.

Hallberg, 621 So.2d at 705-06 (Altenbernd, J., concurring in part and dissenting in part). It is clear S.S.'s parents did not place Hallberg in custodial control and authority over their daughter. ³ Further, we also reject the contention that the Fifth District's decision in Collins controls in this instance. That case is distinguishable because the mother had placed the minor child in the care of the defendant. That was not the situation in this instance. We agree with Judge Altenbernd that the term "custodial," absent a statutory definition, must be construed in accordance with the commonly understood definition as one having custody and control of another. The broad definition given to the term by the district court is not such that a person would know that he had custody of...