Paul v. State, 4D02-657.
| Decision Date | 30 March 2005 |
| Docket Number | No. 4D02-657.,4D02-657. |
| Citation | 912 So.2d 8 |
| Parties | Steve PAUL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
Paul appeals convictions and sentences on four counts of lewd or lascivious acts against a thirteen-year-old victim. Paul was charged with committing six acts of lewd and lascivious molestation, conduct and exhibition, and was found guilty of four; counts I and IV-VI. The issue on appeal is whether the multiple convictions, arising out of the same series of events, violate state and federal double jeopardy protections. We conclude that he was properly convicted on two of the counts and, therefore, affirm in part and reverse in part.
Count I charged that Paul intentionally touched the victim's genital area, or the clothing covering it, contrary to Florida Statute 800.04(5). Count V charged that he intentionally touched the victim in a lewd or lascivious manner by kissing his neck, contrary to Florida Statute 800.04(6). Count IV charged that he intentionally touched the victim in a lewd or lascivious manner by rubbing his penis on the victim's stomach area, contrary to Florida Statute 800.04(6). Count VI charged that Paul intentionally exposed his genitals in a lewd or lascivious manner in the presence of the victim, contrary to Florida Statute 800.04(7).
Paul contends that the acts in all of the counts occurred during one continuous episode without a break in place or time. Paul recognizes that counts I and VI are charged under different subsections of the lewd and lascivious conduct statute than counts IV and V, but asserts that all of the charged acts constitute a single crime.
Taking the evidence most favorable to the state, it reflects that Paul came to the apartment of the thirteen-year-old male victim, where the victim's parents were asleep in their bedroom. They first went into the living room of the apartment. There, Paul kissed the victim on the neck and rubbed the outside of the victim's pants over his penis. Seeing that an adjoining bedroom was empty, Paul asked the victim if they could go into that room. They walked into the bedroom and shut the door. There, Paul proceeded to place his hand on the victim's penis underneath his clothing. The victim then removed his shorts, touched Paul's penis, and Paul rubbed his exposed penis over the victim's leg and stomach and ejaculated. At that point, the victim's sister and her boyfriend arrived.
In a number of decisions, this court has recognized that where a defendant is charged with lewd and lascivious battery, the different acts of touching are to be viewed with reference to the spatial and temporal aspects of the surrounding circumstances in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between occurrences. See Eaddy v. State, 789 So.2d 1093, 1095 (Fla. 4th DCA 2001); Coffield v. State, 872 So.2d 430 (Fla. 4th DCA 2004); Mijarez v. State, 889 So.2d 827 (Fla. 4th DCA 2004). In each case, the sex acts in question occurred in a single episode and a single location, with one act immediately following the other, with no temporal breaks, and without the requisite time for the defendant to pause and reflect in order to form a second criminal intent.
In Coffield, we recognized that the circumstances in that case were clearly distinguishable from those in Saavedra v. State, 576 So.2d 953, 955 (Fla. 1st DCA 1991). In Coffield, the acts of touching in question occurred in a meter room, at one time, while in Saavedra, the defendant kidnapped the victim and engaged in three separate incidents of intercourse, all within the same night, but occurring at three distinct locations. The First District, in Saavedra, recognized that the perpetrators had enough time in between each sexual encounter to reflect on the last act and form a new criminal intent to commit the next sexual act. Id.
Although the Coffield opinion mentions an act of kissing that occurred prior to entry into the meter room, it is clear from the appellant's brief in Coffield that both of the criminal acts in question in that case occurred in the meter room; one count was for Coffield's act of touching the victim's vagina with his finger and the other count for penetrating with his penis.
In the present case, two aspects of double jeopardy are in question: (1) whether there was any break between the lewd acts committed by Paul where he could reflect and form criminal intent before the next act, and (2) whether Paul may be convicted of separate offenses where the legislature, in 1997, amended section 800.04(4)-(7), which now criminalizes separate and distinct behaviors.
With regard to the temporal break in time and space question, we conclude that this case is most analogous to Saavedra, where double jeopardy was not found as to three convictions of sexual battery where the defendant raped the victim in her backyard, then took her to a slide in a park and raped her, then moved her elsewhere in the park and raped her. It is also analogous to Burrows v. State, 649 So.2d 902 (Fla. 1st DCA 1995), where double jeopardy was not violated by two convictions for sexual battery where the defendant raped his victim in the bedroom, went into the living room, then returned and raped her again in the bedroom.
In this case, at the point in time at which Paul asked the victim if they could move from the living room into the empty bedroom, Paul had the time to pause and reflect on what he was doing, thus separating counts I and V (kissing the victim on the neck and touching the victim's genitals outside his clothing in the living room) from counts IV and VI (Paul exposing his penis to the victim and Paul rubbing his penis on the victim). This is demonstrated by the fact that Paul deliberately moved the victim from the more public living room into the more private bedroom where they were less likely to be discovered.
Section 800.04 was substantially re-written, effective October 1, 1999. Subsection 800.04(4), lewd or lascivious battery, not charged in the counts in question, covers a defendant who "(a) engages in sexual activity with a person 12 years of age or older but less than 16 years of age. . . ." Subsection (5), lewd or lascivious molestation, covers a defendant "who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator. . . ." Subsection 800.04(6), lewd or lascivious conduct, covers a defendant who Subsection 800.04(7), lewd or lascivious exhibition, covers a defendant who
We are obligated to apply this statute consistent with section 775.021(4), Florida Statutes, and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The state contends that the legislature recognized, in adopting these amendments, that it was creating separate offenses. Ch. 99-201, Laws of Fla. Nevertheless, this court has not read the statutory scheme of section 800.04 as authorizing separate convictions and sentences for each of the cumulative acts occurring in the course of one continuous and almost simultaneous act of lewd and lascivious activity on a minor, particularly where each lesser act leads up to the most serious of the charges. Here, we deem the acts leading up to, or occurring as part of, the most serious, in each room, to be permissive lesser offenses.
The application of the amended statute to multiple counts was recently addressed in Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), where the Fifth District took a contrary position. There, the defendant was found guilty of multiple counts of sexual battery, lewd or lascivious molestation, lewd or lascivious exhibition, and lewd or lascivious conduct. The court reviewed the statute and concluded that the legislature intended, by the amendment, to authorize separate convictions and punishments for each subsection of section 800.04, stating:
The language and structure of the amended statute does focus on individual acts and creates separate criminal offenses in each subsection that designates a specific degree of the crime and the punishment to be imposed for each. We conclude that the legislative intent is clear that separate punishments be imposed for each criminal offense created by the statute. Therefore, with respect to Hunsicker's convictions for the separate crimes of lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition, there is no double jeopardy violation.
Hunsicker was charged with two counts of lewd or lascivious molestation. Having resolved that the defendant could be charged in separate counts for violation of each subsection, the court recognized that where there are multiple charges as to any subsection, the court reverts to the analysis employed by the cases to determine whether more than one criminal episode occurred. The test is to determine whether there was a sufficient temporal break between the multiple acts charged as to any single subsection.
This court has recently followed a different course in a similar case. See...
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