Morgan v. State
| Decision Date | 22 November 2013 |
| Docket Number | Case No. 5D12-1201 |
| Parties | DALE VERNON MORGAN, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
Assistant Attorney General, Daytona
Beach, for Appellee.
It is a sad reality that there are too many cases involving parents who sexually abuse their own children. We are confronted with yet another. Dale Morgan was convicted of three counts of sexual battery and sentenced to life in prison for each count. The victim is Morgan's natural daughter, who was a young child under the age of twelve when she was sexually battered by her father. The questions presented are whether Morgan was convicted of crimes he was not charged with committing and, if so,whether he invited the error by affirmatively agreeing to the jury instruction that became the catalyst for the verdict of guilty and his convictions.1
A detailed discussion of the facts and circumstances that led to Morgan's convictions is not necessary to answer the questions just mentioned. The answers will largely depend on the allegations contained in the Information, the jury instructions, discussion of the jury instructions during the charge conference, and the verdict form. So we will begin with the Information.
The State filed an Amended Information charging Morgan with three counts of sexual battery. Each differed only in the time periods and age of the victim: count one alleged a time period between January 1, 1981, and June 30, 1984, and that the victim was under the age of eleven; count two alleged a time period between July 1, 1984, and February 7, 1986, and that the victim was under the age of eleven; and count three alleged a time period between February 8, 1986, and February 7, 1987, and that the victim was less than twelve years of age. Each count alleged a violation of section 794.011(2), Florida Statutes, and each count was identical in alleging that Morgan committed sexual battery "by penetrating or having union with [victim's] mouth or vagina with his penis or by penetrating [victim's] vagina with his finger(s)." Although contact of the defendant's mouth with the victim's vagina is also a violation of the statute, see Welsh v. State, 850 So. 2d 467, 470 (Fla. 2003), the State did not make that allegation in the Amended Information.
The trial proceeded with evidence elicited from various witnesses, including the victim and Morgan. After both parties rested, a charge conference was conducted and the jury instructions were reviewed by the attorneys and the trial court. We will discuss the charge conference in more detail a little later. The instructions were read to the jury without objection from Morgan. The jury instructions for each count of sexual battery specifically provided that Morgan could be found guilty if the State proved beyond a reasonable doubt that "Dale Morgan committed an act upon [victim] in which Dale Morgan's mouth/tongue penetrated or came in contact with [victim's] sexual organ (vagina) . . . ."
The verdict form included separate sections for each count of the Information. Each section required the jury to determine whether Morgan was guilty or not guilty of sexual battery and further required the jury to answer the following questions, which were identical for each count (the victim's name is omitted):
Did the Defendant's penis penetrate [victim's] mouth?
Yes_ No_
Did the Defendant's penis come into contact with [victim's] mouth?
Yes_ No_
Did the Defendant's penis penetrate [victim's] vagina?
Yes_ No_
Did the Defendant's penis come into contact with [victim's] vagina?
Yes_ No_
Did the Defendant's tongue/mouth penetrate [victim's] vagina?
Yes_ No_
Did the Defendant's mouth come into contact with [victim's] vagina?
The two questions concerning the uncharged offenses of Morgan placing his mouth in contact with the victim's vagina or penetrating her vagina with his mouth or tongue were included at the request of the State. Morgan did not object to the verdict form.
During deliberations, the jury submitted a written query to the trial court asking whether it was required to answer each question unanimously. The trial court and the attorneys agreed to have the court instruct the jury to mark the questions it unanimously answered and to leave the rest blank. The reason the trial court gave that instruction (which is apparently the reason the questions were included on the verdict form) is because the trial court and the attorneys thought that these questions applied to calculate sentencing points under the guidelines. We find that rationale puzzling in light of the fact that at the time Morgan allegedly committed his offenses (the Information alleges between 1981 and 1987), sexual battery on a child under the age of 12 in violation of section 794.011(2), Florida Statutes, was considered a capital crime (albeit not punishable by death), and was therefore not subject to the sentencing guidelines. See Laster v. State, 486 So. 2d 88, 88 (Fla. 5th DCA 1986); see also Disinger v. State, 526 So. 2d 213, 214 (Fla. 5th DCA 1988) (); Dailey v. State, 501 So. 2d 15, 17 (Fla. 2d DCA 1986); Davis v. State, 493 So. 2d 82, 83 (Fla. 1st DCA 1986).
Although the stated rationale for including the questions and answers on the verdict form makes no sense, value is derived from them because they specify the offense the jury says Morgan committed. The verdict states that Morgan is guilty as toeach count of sexual battery and provides identical answers for the same two questions for each count. The jury answered "No" to the question of whether Morgan's penis penetrated the victim's vagina and "Yes" to whether Morgan's mouth came into contact with the victim's vagina. The rest of the questions were unanswered. Remarkably, the only question to which the jury unanimously answered "Yes" is the question regarding the uncharged allegation that Morgan's mouth had contact with the victim's vagina. We note parenthetically that the jury could not unanimously agree whether Morgan penetrated the victim's vagina with his fingers, despite the fact that he confessed to doing so.
Directing our attention to the first question presented, Morgan claims that his convictions must be reversed because he was convicted of offenses he was not charged with committing. He casts blame on the trial court and the State for providing the jury with an instruction on the uncharged offense. He argues that it does not matter that he never objected to the jury instruction because the error is fundamental. The State disagrees, arguing that because the Information cited the correct statute, Morgan was put on notice of the various ways that sexual battery could be committed and he should not be heard to complain about the fact that the Information did not charge the specific act he was found guilty of committing.
The premise of the State's argument is correct that sexual battery in violation of section 794.011(2), Florida Statutes, may be committed in various ways. See § 794.011(1)(f), Fla. Stat. (1981) (). We will not attempt to catalogue all ofthem here. Although the premise may be correct, the foundation upon which it rests is faulty.
Due process prohibits an individual from being convicted of an uncharged crime. Cole v. Arkansas, 333 U.S. 196, 201 (1948); Jaimes v. State, 51 So. 3d 445, 448 (Fla. 2010); Crain v. State, 894 So. 2d 59, 69 (Fla. 2004). Violation of this prohibition constitutes fundamental error. Jaimes; Ray v. State, 403 So. 2d 956, 966 (Fla. 1981). As a corollary to this constitutional prohibition, it has been an established rule for quite some time that "[w]here an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged," Long v. State, 92 So. 2d 259, 260 (Fla. 1957), and Florida courts have consistently applied this rule since its inception. Deleon v. State, 66 So. 3d 391, 393 (Fla. 2d DCA 2011); Brown v. State, 41 So. 3d 259, 262 (Fla. 4th DCA 2010); Diaz v. State, 38 So. 3d 791, 792 (Fla. 4th DCA 2010); Trahan v. State, 913 So. 2d 729, 730 (Fla. 5th DCA 2005); D.R. v. State, 790 So. 2d 1242, 1244-45 (Fla. 5th DCA 2001); Zwick v. State, 730 So. 2d 759, 760 (Fla. 5th DCA 1999). Consistent with this rule, a criminal defendant is entitled to a trial on the charges contained in the information and may not be prosecuted for uncharged offenses, even if they are of the same general character or constitute alternative ways of committing the charged offense. Trahan; D.R.; Zwick. Citation to the correct statute in an information that specifically alleges the ways the statute was violated to the exclusion of others does not cure the fundamental defect inherent in a verdict that finds the defendant guilty of violating the statute in the ways that were not charged. See Deleon, 66 So. 3d at 394 ().
The precedent just discussed directs us to conclude that Morgan was convicted of uncharged offenses. In view of the compelling evidence the State presented to prove Morgan committed the offense of placing his mouth in contact with the victim's vagina, its failure to charge that offense in the Amended Information is yet another puzzling aspect of this case. By its lassitude, the State has...
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