Harrielson v. State, 82-1154

• Decision Date: 17 November 1983
• Docket Number: No. 82-1154,82-1154
• Citation: 441 So.2d 691
• Parties: Leroy HARRIELSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 691

441 So.2d 691

Leroy HARRIELSON, Appellant, v. STATE of Florida, Appellee.

No. 82-1154.

District Court of Appeal of Florida Fifth District.

Nov. 17, 1983.

Rehearing Denied Dec. 16, 1983.

James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

Appellant, Leroy Harrielson, appeals his convictions of sexual battery in violation of section 794.011(2), Florida Statutes (1981), ¹ and possession of a firearm by a convicted felon. We find sufficient evidence to support the latter conviction and affirm without further discussion of that issue.

The point urged by appellant in regard to his sexual battery conviction is that the trial court erred in refusing to instruct the jury that a lesser included offense thereof is lewd assault as defined by section 800.04 Florida Statutes (1981). That section provides:

Lewd, lascivious or indecent assault or act upon or in presence of child.--Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083 or § 775.084.

The indictment of the defendant for sexual battery specified:

Leroy Harrielson, a person over the age of eighteen (18) years, did, on or about from the dates of July, 1976 on diverse occasions thru June of 1981, within Volusia County, Florida, then and there unlawfully commit a sexual battery upon ROBIN HOGUE, a person eleven (11) years or younger, to wit, Ten (10) years of age, by oral and vaginal penetration with his sex organ.

The appellant argues that the indictment contained all of the elements of a lewd assault, ² and that there was evidence adduced at trial by the minor victim of acts by the defendant which would support a conviction of lewd and lascivious assault upon a child under 14 years of age. It is contended that the alleged conduct of the defendant (oral and vaginal penetration) shows a "wicked, lustful, unchaste, licentious or sensual intent" on the part of the defendant. See Florida Standard Jury Instructions in Criminal Cases, 2d Ed., p. 122 (defining the terms lewd, lascivious and indecent for purposes of § 800.04). The appellant thus concludes that "the dividing line between these two offenses (sexual battery and lewd assault) is the ultimate determination of the existence of an intent to sexually batter, but it is within the province of the jury ... to determine the existence vel non of an intent to sexually batter when a lewd, lascivious, or indecent act is performed upon a child."

The state, on the other hand, points out that a lewd and lascivious assault is not listed as either a category one or two offense under the Schedule of Lesser Included Offenses, Florida Standard Jury Instructions in Criminal Cases (1981 ed.). This schedule became effective October 1, 1981, and purported to modify and supersede the categories enumerated in Brown v. State, 206 So.2d 377 (Fla.1968). ³ See Borges v. State, 415 So.2d 1265 (Fla.1982).

The state persuasively argues that the instant indictment charges Harrielson with no offensive conduct other than acts which constitute sexual battery--the commission of which clearly implies the very intent which by definition negates the offense of lewd assault. If the allegations of the instant indictment are proven, says the state, the elements of lewd assault are not encompassed, as in the case of a lesser included offense. Here, any lewd acts were merely incidental to the conduct specifically charged and at issue in the case: oral and vaginal penetration of a minor constituting sexual battery. The state asserts that no jury instruction is required unless the specific conduct announced as criminal in the charging document could also support a finding of a lesser included offense based on that specific conduct alleged. We agree.

In Bell v. State, 437 So.2d 1057 (Fla.1983), the Florida Supreme Court, relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), stated that "lesser included offenses are tantamount to the greater offense charged if all the constituent essential elements of such lesser offenses are included within the elements of such greater offense. Conversely offenses are separate and distinct if each contains an essential element that the other does not." At 1058. An essential element of sexual battery is the intent to commit it; an essential element of lewd assault under section 800.04 is that sexual battery is not intended. Thus, the Blockburger...