J.F. v. State

• Decision Date: 11 December 2019
• Docket Number: Case No. 2D18-1619
• Citation: 311 So.3d 72
• Parties: J.F., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

311 So.3d 72

J.F., Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-1619

District Court of Appeal of Florida, Second District.

Opinion filed December 11, 2019

Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Kelly O'Neill, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

J.F. appeals an order finding him delinquent of lewd or lascivious conduct. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) ; 9.145(b)(1). The State charged J.F. with attempted sexual battery on a child less than twelve years of age. Because lewd or lascivious conduct is not a lesser included offense of the charged crime, we reverse.

Background

In an amended delinquency petition, the State alleged that J.F. committed the delinquent act of attempted sexual battery on a child less than twelve years of age, a second-degree felony. §§ 794.011(2)(b), Fla. Stat. (2015) ("A person less than 18 years of age who commits sexual battery upon ... a person less than 12 years of age commits a life felony."); 777.04(4)(c), Fla. Stat. (2015) ("[I]f the offense attempted ... is a life felony ... the offense of criminal attempt ... is a felony of the second degree ....").

The parties presented conflicting evidence at the adjudicatory hearing. The victim testified that while she was retrieving clothes from her room, J.F. entered the room, pushed her face down on the bed, pushed his hand down on her back, pulled her underwear down, and told her, "Don't move, it won't go in." The victim described J.F.'s "private area" touching her "private area ... in the back." An analysis of T.M.'s underwear uncovered epithelial and sperm DNA. J.F. was not the source.

J.F. denied assaulting, much less touching, anyone. He stated that he was watching a movie in the victim's bedroom; she entered and told him she had to grab some clothes. "So like, you know, her being a girl I didn't want to see like the stuff that she was grabbing or whatever like her [purse] and stuff, so it's like I'm going to get up and turn my back."

Apparently, J.F. and the victim were alone for somewhere between two and five minutes. The victim's mother then entered the room; J.F. went into a closet and the victim ran to the bathroom.

At the conclusion of the hearing, the trial court ruled as follows:

Okay. The allegation, the charge that's been made is sexual assault by a person under the age of 18 against a victim under the age of 12.... [I]t's interesting that there are places where both sides, State and Defense, agree on points, and obviously they disagree on others.

[T]he victim ... did testify, and based on the questions that we heard in court, and the cross-examination that had to occur, that her testimony has been in summary consistent with her testimony with CPT, and her story to Detective Morel that evening.

It's also of note is [sic] that the testimony by [J.F.] has been consistent. And it's of note that in the minutes that this had to occur ... what is agreed on is that at some point in time [J.F.] and the victim were in the room with no other persons present.

What is also interesting to note is that every one [sic] seems to agree that [J.F.] was by the wall or near the closet at the time that the child's mother entered the room.

So you've got a situation where multiple acts are alleged to have occurred, and in a vacuum of not knowing when they might be discovered, the Defendant would have gotten up and chosen to stand by the closet already formulating a defense.

As agreed on by both counsel, there is no scientific or objective evidence that would give this Court any indication either way of what happened. ...

In summary, this is question of timing, of nuance, and definitely a situation where the truth or at least the decision has to be done in a field that is somewhat mirky [sic] with the facts, and how they have been related to the Court.

[J.F.], I will not find you guilty of the petition charged. I am going to, however, find you guilty of a lesser included offense 800.04 subsection six, lewd conduct. You are adjudicated of the same. It is a third degree felony.¹

Following the hearing, J.F. sought rehearing, arguing that the trial court erred "in finding [J.F.] guilty of an offense that is neither a Category 1 [necessary] lesser included offense, nor a Category 2 [permissive] lesser included offense," where the allegations in the charging document fail to include elements of lewd or lascivious conduct. J.F.'s counsel "concede[d]" that "the only [necessary lesser included offense] is battery." The trial court denied rehearing and J.F. timely appealed.

Analysis

As he did in the trial court, J.F. claims that he could not be adjudicated delinquent for lewd or lascivious conduct because it was not a lesser included offense to the charged crime. The State concedes that J.F. was adjudicated improperly of "a crime not charged in the charging instrument." We agree.

I. Impropriety of lewd or lascivious conduct adjudication

A conviction on a charge not contained in the charging document is a denial of due process. L.C.G. v. State, 91 So. 3d 197, 198 (Fla. 2d DCA 2012) ("It is generally a denial of due process of law to convict a defendant of an uncharged crime."); see, e.g., N.H.M. v. State, 974 So. 2d 484, 485 (Fla. 2d DCA 2008) (holding that petition alleging robbery by force was insufficient to find juvenile committed battery as a permissive lesser included offense).

"A relevant exception to the general rule includes convictions for lesser-included offenses—those which are either necessarily included because their ‘constituent elements are included within the elements of the greater offense,’ or whose ‘elements are included in the accusatory pleading and sustained by the evidence.’ " L.C.G., 91 So. 3d at 198 (quoting D.L. v. State, 491 So. 2d 1243, 1244 (Fla. 2d DCA 1986) ); see also Fla. R. Crim. P. 3.510(b) ("On an ... information on which the defendant is to be tried for any offense the jury may convict the defendant of ... any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged ....").

There is a distinction between necessary and permissive lesser included offenses:

Lesser included offenses fall into two categories: necessary and permissive. Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense. 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] offense cannot help but be perpetrated once the greater offense has been."

Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006) (alterations in original) (citation omitted) (quoting State v. Weller, 590 So. 2d 923, 925 n.2 (Fla. 1991) ).

The amended delinquency petition simply alleged that J.F., while "under the age of eighteen years, did unlawfully attempt to commit a sexual battery upon T.M., a child less than 12 years of age, by anal and/or vaginal penetration."

The elements of the alleged offense are three-fold: (1) the defendant attempted to commit an act upon the victim in which the sexual organ of the defendant penetrated or had union with the anus/vagina/mouth of the victim; (2) the victim was less than 12 years of age at the time of the offense; and, (3) the defendant was under age 18 at the time of the offense. §§ 794.011(2)(b), 777.04 ; cf. Miller v. Dugger, 565 So. 2d 846, 848 (Fla. 1st DCA 1990) (" Section 794.011(1)(h), Florida Statutes (1987), defines sexual battery as the oral, anal, or vaginal penetration by, or union with, the sexual organ of another. An attempt involves two elements: (1) the specific intent to commit the crime, and (2) a separate, overt, ineffectual act done towards the commission of the crime. ... The elements of attempted sexual battery are (1) the specific intent to commit sexual battery, and (2) a separate overt, ineffectual act done toward the commission of sexual battery." (citations omitted)).

The statute under which J.F. was adjudicated provides that an individual who "[i]ntentionally touches a person under 16 years of age in a lewd or lascivious manner ... commits lewd or lascivious conduct." § 800.04(6)(a), Fla. Stat. (2015). As is obvious, lewd or lascivious conduct contains an element not included in the offense of sexual battery on a child, namely, touching in a lewd or lascivious manner. Consequently, lewd or lascivious conduct is not a necessary included offense.

The State also acknowledges that lewd or lascivious conduct is not a permissive lesser included offense; the facts alleged in the amended delinquency petition are not "such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been." Sanders, 944 So. 2d at 206 (quoting Weller, 590 So. 2d at 925 n.2 ); see also Khianthalat v. State, 974 So. 2d 359, 361 (Fla. 2008) ("Upon request, a trial judge must give a jury instruction on a permissive lesser included offense if the following 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 of these elements.’ We recently reiterated this longstanding rule of law by stating that ‘[a]n instruction on a permissive lesser included offense is appropriate only if the allegations of the greater offense contain all the elements of the lesser offense and the evidence at trial would support a verdict on the lesser offense.’ " (citation omitted) (first quoting Jones v. State, 666 So. 2d 960, 964 (Fla. 3d DCA 1996), then quoting Williams v. State, 957 So. 2d 595, 599 (Fla. 2007) )). The amended delinquency petition did not allege that the act was committed in a lewd or...