Kolaric v. State, 91-02342
| Decision Date | 24 March 1993 |
| Docket Number | No. 91-02342,91-02342 |
| Citation | 616 So.2d 117 |
| Parties | 18 Fla. L. Week. D825 Robert M. KOLARIC, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Robert M. Focht, Sp. Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
Mr. Kolaric appeals his convictions for battery and sexual activity with a child subject to his custodial or familial authority. We affirm the battery conviction, but reverse the sexual activity conviction and remand that count for a new trial. Under the facts of this case, the trial court erred in failing to give a requested instruction explaining that lewd and lascivious conduct was a lesser offense of sexual activity by a custodial adult.
The victim was Mr. Kolaric's stepdaughter. She was born in mid-1976 and lived with the defendant until her mother divorced him in July 1990. For a short while thereafter, she occasionally visited him. The victim testified that Mr. Kolaric engaged in various sexual activities with her on a weekly basis from the time she was six or eight years old until September 1990.
In December 1990, the state charged Mr. Kolaric with one count of capital sexual battery for conduct occurring prior to the victim's twelfth birthday. On that count, the jury found him guilty of the lesser included offense of simple battery. We affirm that conviction without comment.
For conduct allegedly occurring between July and December 1990, Mr. Kolaric was charged with three counts of sexual activity with a child by a person in familial or custodial authority. Sec. 794.041, Fla.Stat. (1989).
Section 794.041(2)(b), Florida Statutes (1989), punishes "[a]ny person who stands in a position of familial or custodial authority to a child 12 years of age or older but less than 18 years of age and who ... [e]ngages in sexual activity with that child...." "Sexual activity" is defined as "the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object." Sec. 794.041(1), Fla.Stat. (1989). The willingness or consent of the child is not a defense to this first-degree felony. Sec. 794.041(3), Fla.Stat. (1989).
At the jury instruction conference, defense counsel argued that his client was entitled to an instruction on the offense of lewd and lascivious act as a lesser included offense to these charges. Section 800.04, Florida Statutes (1989), pertaining to lewd and lascivious acts, punishes
[a]ny person who ...
(1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner;
(2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years....
....
without committing the crime of sexual battery....
Section 794.011(1)(h), Florida Statutes (1989), defines "sexual battery" as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object...." This offense is a second-degree felony.
Defense counsel maintained the jury could decide that the evidence constituted only handling and fondling or that the jury could determine that Mr. Kolaric was not in a custodial capacity at the time of the event. 1 The trial judge decided that the crime of sexual activity with a child by a custodial adult had no necessary or permissive lesser offenses in this case. Thereafter, the jury found Mr. Kolaric not guilty on two counts of sexual activity and guilty on a third count.
It is well established that a defendant is entitled to a requested instruction on a permissive lesser included offense when both the pleadings and the evidence demonstrate that the lesser offense is included in the charged offense. Amado v. State, 585 So.2d 282 (Fla.1991); State v. Daophin, 533 So.2d 761 (Fla.1988); Wilcott v. State, 509 So.2d 261 (Fla.1987). The information and evidence presented in this case support instructing the jury on lewd and lascivious act as a permissive lesser included offense of sexual activity with a child by a custodial adult.
With respect to the pleadings, count IV of the amended information alleges that "between the 1st day of July and the 6th day of December [1990]," Mr. Kolaric placed his penis into the victim's mouth "while [she] was 14 years of age and [he] was in a position of familial or custodial authority." As can be seen by comparing the above-quoted statutes, this allegation includes the charge of lewd and lascivious act because it claims that Mr. Kolaric engaged in conduct with a fourteen-year-old child that would be the crime of sexual battery but for the teenager's...
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