Hodges v. State, 4D03-4805.
| Decision Date | 09 June 2004 |
| Docket Number | No. 4D03-4805.,4D03-4805. |
| Citation | 878 So.2d 401 |
| Parties | Johnny HODGES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Johnny Hodges, Sneads, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellee.
Johnny Hodges (Defendant) filed a petition alleging ineffective assistance of appellate counsel. We grant the petition in part and order a new trial on the kidnapping count.
Evidence was presented at Defendant's jury trial that the victim opened the door to allow Defendant, her great-grandson, to enter her home around 3:00 a.m. When they entered the living room, he hit her on the back of the head and she fell. Then he pulled up her nightgown, touched her bare buttocks, and choked her until she lost consciousness. When she awoke, she was tied to the bed, had a strange feeling in her buttocks as if she had been raped, and she saw her car backing out; later, Defendant would plead guilty to leaving the scene of a one-vehicle accident in the victim's car a few days later. The victim had a tear along her anus. Vaginal and rectal swabs revealed semen, but a DNA profile could not be detected. However, Defendant's DNA matched a semen stain found on the victim's bed sheet.
Defendant was charged with sexual battery, kidnapping, grand theft of a motor vehicle, and battery on a person sixty-five years of age or older. In the instant petition, he alleges that his appellate counsel was ineffective for failing to raise two issues of fundamental error in the jury instructions, one in connection with the kidnapping conviction and one in connection with the sexual battery conviction.
In count II, the kidnapping charge, the information alleged that the acts of confinement, abduction or imprisonment of the victim were done with the intent to commit or facilitate the commission of a sexual battery or battery on a person over sixty-five, contrary to Florida Statutes section 787.01(1)(a). The statute provides four alternative ways of committing kidnapping. The one with which Defendant was charged was section 787.01(1)(a)2: when the confinement is with the intent to "commit or facilitate commission of any felony." Another means of kidnapping is when the confinement is done with the intent to "[i]nflict bodily harm upon or to terrorize the victim or another person." § 787.01(1)(a)3. This type of kidnapping was not charged in the information.
Nevertheless, the jury was instructed that in order to find Defendant guilty of kidnapping, the state had to prove, beyond a reasonable doubt, either of two alternate intents:
In other words, the instruction allowed the jury to find Petitioner guilty of kidnapping if it found he committed an act which was not charged in the information.
Although the state has demonstrated that defense counsel did not object to the...
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