Horn v. State
| Decision Date | 19 September 2012 |
| Docket Number | CASE NO. 1D11-2695 |
| Parties | DEANGELO S. HORN, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Leon County.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
Deangelo Horn, Appellant, was convicted of sexual battery and attempted lewd or lascivious molestation, both against a victim under the age of twelve by a defendant at least eighteen years old. He appeals from the judgment and sentence, raising two arguments: (1) that his separate convictions for sexual battery andattempted lewd or lascivious molestation violate his right to be free of double jeopardy and (2) that the trial court reversibly erred in refusing his request for an instruction on unnatural and lascivious act as a lesser-included offense of the charged crime of lewd or lascivious molestation. Because the charges encompassed two distinct acts under this Court's reasoning in Roberts v. State, 39 So. 3d 372 (Fla. 1st DCA 2010), we reject the first argument without further discussion and affirm Appellant's conviction and sentence for sexual battery. For the reasons explained below, we agree with Appellant's second argument and, accordingly, reverse and remand for a new trial on attempted lewd or lascivious molestation.
The State presented evidence that Appellant placed his head between the victim's exposed breasts during the same criminal episode as the sexual battery. The alleged touching of the victim's breasts was the basis for the charge of lewd or lascivious molestation. As to this charge, Appellant requested the instruction on unnatural and lascivious act as a permissive lesser-included offense. The trial court denied this request and, as to count two, instructed the jury only on the charged offense and attempt. The jury returned a verdict for attempt.
Upon request, a trial court is required to instruct the jury on a permissive lesser-included offense if two conditions are met: "(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all ofthese elements." Khianthalat v. State, 974 So. 2d 359, 361 (Fla. 2008). Stated another way, a permissive lesser-included offense exists when "the two offenses appear to be separate on the face of the statutes, but the facts alleged in the accusatory pleadings are such that the lesser included offenses cannot help but be perpetrated once the greater offense has been." Anderson v. State, 70 So. 3d 611, 613 (Fla. 1st DCA 2011) (quoting Williams v. State, 957 So. 2d 595, 598 (Fla. 2007)) (citations, internal quotation marks, and brackets omitted). An instruction on such an offense must be given even when there is ample evidence of the charged offense. Clark v. State, 43 So. 3d 814, 817 (Fla. 1st DCA 2010).
Along with attempt, assault, and battery, the offense of unnatural and lascivious act is a permissive lesser-included offense of lewd or lascivious molestation. Sherrer v. State, 898 So. 2d 260, 261 (Fla. 1st DCA 2005); Fla. Std. Jury Instr. (Crim.) 11.8. In Williams v. State, 627 So. 2d 1279 (Fla. 1st DCA 1993), this Court found error in the refusal to instruct the jury on this...
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