Rosen v. State
| Decision Date | 08 September 2006 |
| Docket Number | No. 5D05-394.,5D05-394. |
| Citation | 940 So.2d 1155 |
| Parties | Ronald J. ROSEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Chandler R. Muller of Muller & Sommerville, P.A., Winter Park, and David A. Henson, Brevard, NC, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
Ronald Rosen was convicted of four counts lewd and lascivious molestation1 and two counts misdemeanor battery. He received concurrent sentences of 231.3 months' DOC for the molestation counts and 12 months' jail for the battery counts. We affirm.
The convictions involved four alleged victims. Rosen taught the sixth-grade class in which most were enrolled. Most of the conduct alleged occurred in his classroom, and none of the children consented to the touches. The children testified that Rosen discussed their schoolwork or grades while touching them and made no sexual or improper remarks. They generally liked Rosen as a teacher and felt he was kind, strict, affectionate, and helpful. Rosen's desk was located in a partially obscured section of the back of his classroom. Assistant Principal Baker testified that Rosen always locked the classroom door during school, that she had to knock to enter, and that other teachers did not lock their doors.
Case number 30510 included three counts of lewd and lascivious molestation of 12-year-old C.E. Rosen put his arm around her and rubbed her butt while she was at his desk. He touched her chest while she was in a lunch line. Finally, he put his arm around her shoulders and "patted her boob" at his desk. Rosen was found guilty of lewd and lascivious molestation on counts one and three, but acquitted of count two.
Case number 31603 included one count of lewd and lascivious molestation of 11-year-old K.M. Rosen would touch and rub her butt while she stood by his desk. His touch could have been absent-minded. The jury found Rosen guilty of battery.
Case number 31588 included two counts of lewd and lascivious molestation of 12-year-old A.R. Rosen squeezed her butt while she was by his desk. She backed up, but he moved, put his arm around her, and touched her butt again. On another occasion, he gave her a "boyfriend-type hug" and, as she let go, he brought his hands around her back and set them across the sides of her breast. The jury found Rosen guilty of lewd and lascivious molestation on count one and battery on count two.
Case number 31587 included one count of lewd and lascivious molestation of 11-year-old A.H. Rosen would touch her butt by his desk, put his arm on her butt and thighs, and rub her butt. The jury found Rosen guilty as charged.
The girls had talked with each other about the touching before A.H. wrote a note, which she gave to Sharon Kline, the school's guidance counselor. A copy of the note was admitted into evidence:
Mrs. Baker, there has been problems [sic] with Mr. Rosen. It seem [sic] Mr. Rosen has been touching girls [sic] butts. If it isn't any trouble could you please talk to him about it. Thank you. Sincerely, a sixth grade girl. P.S. If you do talk to him tell him to stop. Thanks[.]
(Emphasis in original). Two of the complaining witnesses transferred out of Rosen's class because of the touching.
The court addressed jury instructions early and often. After the jury was sworn, the court told counsel to use the afternoon to look at instructions and make any objections. While the State was presenting its case, the following exchange occurred:
Nevertheless, the court revisited each instruction, including the lewd and lascivious molestation instructions, to which Rosen did not object. No objection was raised during later discussions. After Rosen rested, the parties reviewed the instructions again. Rosen did not object despite several opportunities, and counsel affirmatively represented there were no problems with the jury instructions.
The lewd and lascivious molestation instructions required the jury to find, inter alia, that the victims were less than 16 years old and that Rosen "handled or fondled [the victims] in a lewd, lascivious, or indecent manner." The jury was not required to find that A.H. was less than 12 years old. The victims' ages at the time of the crimes were read to the jury from the charging informations. Each girl—including A.H., who was 11 when the incidents occurred—had testified to her date of birth.
At Rosen's request, the jury instructions provided that the jury could find Rosen guilty of battery,2 a lesser-included offense of lewd and lascivious molestation. At trial, Rosen's counsel volunteered that "[w]e added this instruction of battery." Counsel repeatedly sought battery as the lesser-included offense for each count.
At sentencing, Rosen argued that he was either entitled to a new trial or could only be sentenced for third-degree felony molestation because the jury did not find that he was at least 18 and that A.H. was under 12. Counsel argued it was "fundamental error to give improper jury instructions." The court asked if error occurred, despite her failure to object. Counsel responded: Counsel reiterated that the oversight was "not something that [she] was going to bring to the Court's attention ... because [she was] not the prosecutor."3 The court noted Rosen did not object to the instructions despite several opportunities, that the informations contained the girls' ages, and that there was record evidence of Rosen's age. The court denied Rosen's argument based on record evidence and invited error.
At trial, Rosen's wife testified that they had been married for 31 years. During sentencing, Rosen stated he worked for the school board for 18 years, worked with children since 1970, and was involved in the community since 1959. He introduced a voluminous file of correspondence about his character; many individuals writing on his behalf wrote they had known him for over 30 years.
After sentencing, Rosen contended the lower court lacked the constitutional authority to sentence him because the jury did not deliberate on all elements of lewd and lascivious molestation. The court denied his motion, and Rosen timely appealed.
Rosen raises several issues on appeal, but we conclude that none merit reversal of his judgment and sentence and, therefore, affirm. See, e.g., Huck v. State, 881 So.2d 1137, 1140 (Fla. 5th DCA 2004). However, we address three arguments he raised that merit discussion: (1) whether the court erred by denying motions for judgment of acquittal on all counts alleging lewd and lascivious molestation or conduct; (2) whether the court erred by denying his motions for judgment of acquittal for battery; and (3) whether the jury's failure to find he was at least 18 years old and that A.H. was under 12 years old requires retrial or resentencing.
Judgment of acquittal on lewd and lascivious convictions.
This court reviews de novo motions for judgment of acquittal. Huck v. State, 881 So.2d 1137, 1144 (Fla. 5th DCA 2004). If competent, substantial evidence supports a conviction, it generally will not be reversed. Id. "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, then there is sufficient evidence to sustain a conviction." Id. If the State's case is entirely circumstantial, the evidence establishing each element of the offense must be inconsistent with the defendant's reasonable hypothesis of innocence. Id. If there is such an inconsistency, the trier of fact resolves the question of the defendant's guilt. Id. at 1145.
Rosen argues that the court erred by denying his motions for judgment of acquittal on all lewd and lascivious molestation counts. He contends that the State's evidence of his lewd and lascivious intent was entirely circumstantial and did not exclude his reasonable hypothesis of innocence, i.e., that the touches never happened. Because none of the witnesses believed that his touches were sexual, and all said Rosen did not say or do anything overtly sexual, none of the charges should have been submitted to the jury. The State responds that the question of Rosen's lewd and lascivious intent was for the jury to decide based upon the totality of the circumstances.
Section 800.04(5), Florida Statutes (2000), provided:
(a) A person 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 ... commits lewd or lascivious molestation.
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a felony of the first degree ....
(c) ...
2. An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age
commits a felony of the second degree ....
This court has held that when conduct occurs as described in the statute, the question of whether the acts were committed lewdly or lasciviously is one of fact. State v. Mitchell, 624 So.2d 859, 860 (Fla. 5th DCA 1993). Thus, it was up to the jury to decide whether Rosen's behavior violated the statute based upon the totality of the circumstances. See id.; accord Method v. State, 920...
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