Lanier v. State

• Decision Date: 13 December 1983
• Docket Number: No. 82-793,82-793
• Citation: 443 So.2d 178
• Parties: Jerome LANIER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 178

443 So.2d 178

Jerome LANIER, Appellant, v. The STATE of Florida, Appellee.

No. 82-793.

District Court of Appeal of Florida,

Third District.

Dec. 13, 1983.

Rehearing Denied Jan. 27, 1984.

Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

The question presented on this appeal is whether having consensual sexual intercourse with an unchaste twelve-year-old girl constitutes the offense of handling or fondling in a lewd, lascivious or indecent manner or the offense of making an assault in a lewd, lascivious or indecent manner, both proscribed by Section 800.04, Florida Statutes (1981).

The defendant was charged by an information alleging that he, between certain specified dates,

"did unlawfully handle, fondle or make an assault upon [S] by engaging in sexual intercourse, but without the intent to commit Involuntary Sexual Battery, in violation of 800.04 ... that [S] is under the age of 14; and that the aforementioned acts were committed by Jerome Lanier in a lewd and lascivious manner."

The defendant filed a sworn motion to dismiss the information setting forth the facts of the matter, the truth of which the State did not dispute by a traverse and, indeed, expressly admits. The facts set forth in the motion are as follows.

The defendant first met S while they were riding a bus on October 28, 1981. S told defendant that she was fourteen years of age and that she was running away from home, and defendant "asked her if she would like to go to a motel." S replied that she would and "went with the defendant because she wanted to be with him."

The defendant rented a motel room and left S there for several hours, returning that evening. He and S slept in the same bed that night and had consensual sexual intercourse. Approximately three or four months earlier, S had twice engaged in intercourse with her boyfriend. On the morning of October 29, the defendant left the motel and went to work; S remained at the motel. The defendant returned that evening, and he and S slept together, but did not have sexual intercourse. The next morning, the defendant went to work. He returned in the evening with dinner, after which he and S had consensual sexual intercourse.

On the next morning, October 31, the defendant again left the motel, and S again remained; "she was not getting tired of staying at the motel all day everyday and ... loved it." The defendant had not forced his attentions upon her, and S "was getting close to the defendant and [had] started liking him." S and the defendant had dinner together that night, and he left the motel after dinner and did not return until after S had gone to sleep. By the following day, the defendant had "recommended a few times that [S] go home, but ... she didn't feel like leaving at that time."

On the morning of November 1, defendant left the motel to do the laundry, and S remained in the room watching television. The defendant returned that afternoon and then left for work, returning to the motel that evening for dinner. He again told S that "he thought it would be a good idea if she went home," and S became upset "because she didn't want to go home but rather wanted to stay at the motel" with him. That night they slept together, but did not have intercourse.

Their last day together was November 2. As usual S stayed at the motel, and the defendant went to work. The defendant returned that evening, and they slept together, although "they did not have sex because she didn't want to." S left the motel on the following morning, leaving the defendant a note in which "she told him she liked him." The charges against the defendant were filed on the following day.

The trial court denied the defendant's motion to dismiss, and the defendant entered a plea of nolo contendere, specifically reserving his right to appeal the denial of his motion.

At the outset, the defendant makes clear that he does not attempt to defend his conduct; indeed, he freely acknowledges that it is reprehensible. What he does defend is his right to be charged under a statute which embraces such conduct. Thus, while he suggests that he may have been prosecuted for lewd cohabitation, § 798.02, Fla.Stat. (1981); prostitution, § 796.07, Fla.Stat. (1981); see Tatzel v. State, 356 So.2d 787 (Fla.1978) (holding constitutional the defining of licentious sexual intercourse, without consideration, as prostitution under Section 796.07); or contributing to the delinquency of a minor, § 827.04(3), Fla.Stat. (1981), ¹ he insists that Section 800.04 is inapplicable to his conduct.

We also make clear that the defendant does not contend that Section 800.04, Florida Statutes (1981), an essential element of which is that the accused's acts be done "without the intent to commit sexual battery," ² see State v. Sumner, 157 Fla. 371, 26 So.2d 336 (1946) (affirming trial court order quashing information charging offense under former Section 800.04 where allegation that defendant acted without intent to commit rape omitted); cf. Bass v. State, 263 So.2d 611 (Fla. 4th DCA), cert. denied, 271 So.2d 142 (Fla.1972), is inapplicable to his conduct despite the fact that he indisputably acted with the intent to have sexual intercourse. While it is true that "sexual battery," undefined in Section 800.04, is elsewhere defined in Section 794.011(1)(f), Florida Statutes (1981), as "oral, anal or vaginal penetration by, or union with, the sexual organ of another ..." without any requirement that the penetration or union be involuntary or accomplished by force, and thus an intent to have consensual sexual intercourse is ostensibly equated with an intent to commit a sexual battery, we think it clear, and the defendant agrees, that the term "sexual battery" as used in Section 800.04 refers not to the definition in Section 794.011(1)(f), but rather to the panoply of sexual battery crimes enumerated in Section 794.011, that is, the non-consensual, coercive or forcible sexual intercourse or union described in Sections 794.011(2), (3), (4) and (5), Florida Statutes. Thus, we conclude that when it is said in a prosecution under Section 800.04 that the defendant acted "without the intent to commit sexual battery," what is meant is that the defendant did not intend to commit an act prohibited by Sections 794.011(2) through (5). ³ We believe this conclusion is compelled by the history of Section 800.04.

Before Section 794.011 was promulgated, Section 800.04, Florida Statutes (1973) prohibited the very same acts as the 1981 version of the statute when such acts were committed "without the intent to commit rape." The word "rape" as formerly used in the statute was interpreted to mean forcible rape only. See Baines v. State, 221 So.2d 3, 4 (Fla. 2d DCA 1969). When Section 794.011 was enacted in 1974, see Ch. 74-121, Laws of Florida, Section 800.04 was redrafted to bar the recited lewd acts perpetrated "without the intent to commit involuntary sexual battery," § 800.04, Fla.Stat. (1975), thus manifesting the same legislative intent as the predecessor statute. The deletion of the word "involuntary" from the current version of Section 800.04 was not intended to bring about a substantive change, but rather was done to "conform the name of the crime to the terminology of § 794.011." See Ch. 79-400, § 290 et seq., Laws of Florida. ⁴

Our conclusion is not only compelled by this legislative history, but is supported by the analysis of Section 794.011(1)(f) found, albeit in dictum, in Hodges v. State, 403 So.2d 1375 (Fla. 5th DCA 1981), rev. denied, 413 So.2d 877 (Fla.1982), where the court stated:

"Since the acts described in the statutory definition of 'sexual battery' are not illegal per se and are, therefore, conduct essentially innocent, the crux, gist or gravamen of the offense of sexual battery, and, oddly, in criminal law, the one fact which characterizes the accused's acts as being, or not being, criminal, is not an act or intent of the accused, but the mental assent of the 'victim.' " 403 So.2d at 1377-78 (emphasis supplied).

Since sexual intercourse with an unchaste assenting twelve-year-old is not a sexual battery crime under Section 794.011, a person, as the defendant, who acts with the intent to have consensual sexual intercourse with an unchaste twelve-year-old acts "without the intent to commit a sexual battery," and that essential element of Section 800.04 is satisfied here.

We turn then to the heart of the defendant's argument, that is, apart from showing that his conduct was lewd and lascivious ⁵ and done without the intent to commit sexual battery, the undisputed facts cannot sustain a finding that either the crime of assault or handling and fondling occurred.

We have little difficulty agreeing that the undisputed facts are wholly insufficient to sustain the charge of assault. The "assault" crime proscribed by Section 800.04 includes the elements of assault and battery, whether defined at common law or by statute. Carver v. State, 344 So.2d 1328 (Fla. 1st DCA), cert. denied, 352 So.2d 174 (Fla.1977). Neither assault, § 784.011, Fla.Stat. (1981), nor battery, § 784.03, Fla.Stat. (1981), specific intent crimes, State v. Horvatch, 413 So.2d 469 (Fla. 4th DCA 1982); State v. Shorette, 404 So.2d 816 (Fla. 2d DCA 1981); Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979); J.M.C. v. State, 331 So.2d 366 (Fla. 3d DCA 1976), embrace the consensual, non-violent conduct which occurred in the present case. Therefore, the instant prosecution of the defendant under Section 800.04 is sustainable only if the alleged consensual sexual intercourse with an unchaste child under the age of fourteen can constitute the offense of handling or fondling within the statute. ⁶

The information herein charged the defendant with handling and fondling by...