Hanf v. State

• Decision Date: 18 December 2015
• Docket Number: No. 1D14–1158.,1D14–1158.
• Citation: 182 So.3d 704
• Parties: Stephen C. HANF, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

182 So.3d 704

Stephen C. HANF, Appellant,

v.STATE of Florida, Appellee.

No. 1D14–1158.

District Court of Appeal of Florida, First District.

Dec. 18, 2015.

Rehearing Denied Jan. 15, 2016.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

Appellant challenges his conviction for lewd or lascivious molestation of a victim, L.C., a child younger than 12 years of age, and appellant's resulting sentence of life without the possibility of parole. He raises a number of issues on appeal. We affirm but write to address briefly one issue: whether the sentence violates the ban on cruel and unusual punishment.

L.C., a close friend of appellant's daughter, testified that when she was 11 years old, she spent the night at appellant's home. During the night she awoke to find appellant standing by her head and touching her upper thigh. Appellant then began to rub her upper arm and breast area. When asked to indicate what part of her breast area was touched, the prosecutor stated for the record that L.C.'s left hand cupped her (presumably right) breast. At the time of the incident, she testified, she was wearing pajama pants, a T-shirt, and a "small bra."

The unwanted touching in a sexual manner was not an isolated incident but part of a similar pattern of behavior testified to at trial by three other victims.¹ J.H. testified concerning a similar incident that occurred when she was 9 or 10. She was sleeping on a couch at appellant's home when she felt someone rubbing her feet and then spreading her toes apart. Appellant then slid his hand up her leg, halfway up her thigh. When she awoke, appellant apologized and ran from the room.

J.H.T., age 11, testified that when she spent the night at appellant's house, she woke up with appellant touching her on the vaginal area. After several minutes, he walked away. B.R. testified concerning a similar incident while spending the night at appellant's house.

Appellant was found guilty of lewd or lascivious molestation of L.C. as charged pursuant to section 800.04(5), Florida Statutes. Because appellant was over 18 and his victim was less than 12 years old, the only sentences available were life imprisonment or at least 25 years' imprisonment followed by a lifetime of probation or community control. § 775.082(3)(a)(4), Fla. Stat.

At sentencing, appellant's counsel argued that the 25–year mandatory minimum sentence was appropriate because appellant was 61 years old; he would be in his 80's if he survived the sentence; and upon release, he would be on lifetime sexual offender probation.² The trial court sentenced him to life. The State then nolle prossed the charges related to the other incidents.

In Adaway v. State, 902 So.2d 746 (Fla.2005), the Florida Supreme Court was asked to address whether a sentence of life imprisonment without the possibility of parole for a defendant found guilty of oral union with the vagina of a girl under the age of 12 constituted cruel and unusual punishment under either the United States Constitution or Florida Constitution. The court recognized the confusing state of the law in United States Supreme Court precedent regarding the constitutionality of long prison sentences. Id. at 748–49. The court, however, "read the decisions in Solem, Harmelin, and Ewing as requiring, for a prison sentence to constitute cruel and unusual punishment solely because of its length, that at a minimum the sentence be grossly disproportionate to the crime." Id. at 750 (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), and Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) ).

The court in Adaway established some important concepts. The length of a sentence for a particular crime is generally a legislative prerogative. Id. at 750. Additionally, while a sentence may be perceived as harsh, the Legislature's judgment about the gravity of a crime should generally be accepted, and the Legislature has determined that the sexual abuse of children requires harsh penalties. Id.

The Adaway court quoted a case from the Second District recognizing the need for strict deterrence to protect our children:

Child sexual predation is a serious concern. Even when it leaves no physical scars, it can create emotional damage that lasts a lifetime. There is evidence that victims of abuse can become abusers and that this crime can transmit its injuries across generations. Because victims hesitate to report this crime and proof of the offense is often difficult to obtain, there is a risk that perpetrators will believe they can escape detection and punishment. As a result, there is a need for a harsh penalty to act as a sufficient deterrent.

Id. at 750–51 (quoting Gibson v. State, 721 So.2d 363, 368–69 (Fla. 2d DCA 1998) (citing Charles A. Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton Hall Legis. J. 1, 107 (1997) )).

The court went on to recognize the severe harm that may be caused to young victims of sexual abuse:

Researchers have identified a long list of harms caused by child sexual abuse, including "fears, anxiety, phobias, sleep and eating disturbances, poor self-esteem, depression, self-mutilation, suicide, anger, hostility, aggression, violence, running away, truancy, delinquency, increased vulnerability to revictimization, substance abuse, teenage prostitution, and early pregnancy." Frank W. Putnam & Penelope K. Trickett, Child Sexual Abuse: A Model of Chronic Trauma, 56 Psychiatry 82, 84 (1993); see also Kathleen A. Kendall–Tackett et al., Impact of Sexual Abuse on Children: A Review and Synthesis of Recent Empirical Studies, 113 Psychol. Bulletin 164, 165 (1993) (finding that seven factors stand out in sexually abused children as compared with non-abused children: aggression, anxiety, depression, externalizing, internalizing, sexualized behavior, and withdrawal). Research has further shown that certain adult psychiatric problems, including eating disorders, personality disorders, and somatization disorder

(physical symptoms without medical explanation), can be directly related to child sexual abuse. See Putnam & Trickett, 56 Psychiatry at 83. Given this array of potentially lifelong harms associated with sexual abuse of children, we will not second-guess the Legislature's judgment that such a crime warrants a lifelong penalty.

Id. at 751.

The court concluded its analysis by determining that Adaway's offense was a substantially greater offense than other offenses for which the United States Supreme Court has upheld life sentences without the possibility of parole. Id. at 751.

This court specifically adopted the analysis set out in Adaway in Oyarvid v. State, 38 So.3d 854, 856 (Fla. 1st DCA 2010), a case involving the lewd or lascivious molestation of a child under 12 years of age, the same crime that is charged in this case. Oyarvid thus controls our decision in this case.

While one may argue that lewd or lascivious molestation does not rise to the level of other sexual assaults, it still involves an attack of a sexual nature on our most vulnerable citizens. It clearly may cause severe emotional distress to those victims. It also many times, as evidenced by the facts of this case, involves sexual predators who are willing to inflict harm on multiple children. Our decision in Oyarvid was correct. As the supreme court in Adaway, we are unwilling to second-guess the Legislature's determination as to the level of deterrence and punishment necessary to address this type of crime. Thus, we AFFIRM.

RAY, J., concurs; BENTON J., concurs in part and dissents in part with opinion.

BENTON, J., concurring in part and dissenting in part.

I agree that Stephen Hanf's conviction should be affirmed. But I also agree with his contention that a life sentence in this case constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the Florida Constitution.

I.

We must take as a factual starting point the view of the evidence most favorable to the state: L.C., 13 years old at the time of trial, testified that, when she was 11 years old, she was close friends with Mr. Hanf's daughter and spent the night at his home almost every weekend. On one such occasion, she awoke to find him standing by her bedside touching her thigh. Asked at trial if the appellant touched her thigh on the inside or the outside, she answered, "A little bit of both." Asked whether he got "up towards where you go to the bathroom," she answered, "No." She said the appellant rubbed the inside of her thigh with two or three fingers for "[m]aybe a couple of minutes."

After touching her leg, L.C. testified, appellant's hand moved to her upper arm and then to her "breast area." She was then asked to indicate what part of her breast area was touched, and the prosecutor stated for the record that L.C. cupped her breast in response. At the time of the incident, as the majority opinion notes, she was wearing pajama pants, and a T-shirt over a "small bra." After the "cupping," she tried to go back to sleep. She told nobody about the encounter with Mr. Hanf until approximately a year later, when she confided in a friend. On this evidence, the jury found Mr. Hanf guilty of lewd or lascivious molestation of a child younger than 12 years of age.

A lewd or lascivious molestation occurs when a person "intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator." § 800.04(5)(a), Fla. Stat. (2011) (emphasis added). The offense is a second-degree felony—punishable "by a term of imprisonment...