Stevens v. State

• Decision Date: 24 June 2016
• Docket Number: No. 2D13–2148.,2D13–2148.
• Citation: 195 So.3d 403
• Parties: Vernon STEVENS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

195 So.3d 403

Vernon STEVENS, Appellant,

v.STATE of Florida, Appellee.

No. 2D13–2148.

District Court of Appeal of Florida, Second District.

June 24, 2016.

Howard L. Dimmig, II, Public Defender, and Stephen M. Grogoza, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.

SALARIO, Judge.

Vernon Stevens appeals his convictions and sentences for first-degree murder, first-degree arson of a dwelling, and robbery with a deadly weapon. Finding no error, we affirm his convictions and sentences in all respects. We write solely to explain why we reject his contention that he was entitled to a jury instruction on second-degree arson of a structure under section 806.01(2), Florida Statutes (2007). We hold that an instruction on second-degree arson of a structure as a permissive, lesser included offense of first-degree arson of a dwelling is not required where, as here, the undisputed trial evidence demonstrates that the structure that is the subject of the arson charge was used exclusively as a dwelling, thereby excluding it from consideration as a second-degree arson offense under the plain language of the arson statute. In so doing, we certify conflict with Moore v. State, 932 So.2d 524 (Fla. 4th DCA 2006).

The charges against Mr. Stevens arose from the savage murder of Tony Beltran by Mr. Stevens and Raymond Diaz. The graphic details of the offense are not important to the legal issue we address. What is important is that all of the events occurred at a trailer home in which Mr. Beltran lived with his wife and that, as far as the trial record is concerned, was used exclusively as the couple's dwelling. After beating and strangling Mr. Beltran to the point of death or unconsciousness—the evidence does not establish precisely when he died—Mr. Stevens and Mr. Diaz left the home and later returned with plans to burn it. Mr. Stevens provided Mr. Diaz with a can of gasoline, and Mr. Diaz lit the trailer on fire. Mr. Beltran was still inside.

The information under which Mr. Stevens was charged alleged that during the commission of the robbery of Mr. Beltran, Mr. Stevens, “by fire or explosion,” damaged “a structure, to wit: a dwelling ... or its contents,” thereby committing first-degree arson of a dwelling under section 806.01(1)(a). Mr. Stevens did not dispute that the trailer home was a dwelling within the meaning of the statute; in fact, he conceded that it was the Beltrans' home. At trial, however, he requested that the jury be instructed on second-degree arson of a structure under section 806.01(2). His reason was that a dwelling under section 806.01(1)(a) is also a structure under sections 806.01(2) and that the jury should have the opportunity to consider both the charged and the lesser included arson offenses. The trial court denied the request, finding that the evidence did not support an instruction on second-degree arson. We agree.

Lesser included offenses fall into two categories—necessary and permissive. Williams v. State, 957 So.2d 595, 598 (Fla.2007) (citing Sanders v. State, 944 So.2d 203, 206 (Fla.2006) ). If the statutory elements of the lesser included offense are always subsumed by those of the charged offense, the lesser offense is deemed necessary. Id. A lesser offense is permissive, however, where “the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.” Sanders, 944 So.2d at 206 (alterations in original); see also Coicou v. State, 39 So.3d 237, 240 (Fla.2010).

A trial court must instruct the jury on a necessary lesser included offense upon request by the defendant regardless of whether the evidence supports the instruction. Wong v. State, 184 So.3d 1122, 1124 (Fla. 2d DCA 2015), review granted, SC15–2192, 2016 WL 934487 (Fla. Mar. 9, 2016). In contrast, a trial court is required to instruct the jury on a permissive lesser included offense only where (1) the charging document alleges all of the statutory elements of the lesser offense and (2) some evidence presented at trial establishes each of those elements. Khianthalat v. State, 974 So.2d 359, 361 (Fla.2008) (citing Jones v. State, 666 So.2d 960, 964 (Fla. 3d DCA 1996) ); see also Fla. R. Crim. P. 3.510. “[A]n instruction on a permissive lesser included offense is appropriate only if the allegations of the greater offense contain all the elements of the lesser offense and the evidence at trial would support a verdict on the lesser offense.” Khianthalat, 974 So.2d at 361 (alteration in original) (quoting Williams, 957 So.2d at 599 ).

Determining whether a jury instruction on second-degree arson was required in this case thus requires understanding the relationship between first- and second-degree arson under section 806.01. The difference between the two offenses primarily relates to the issue of human occupancy. Krantz v. State, 553 So.2d 746, 747 (Fla. 5th DCA 1989) (“As can be seen, the difference between first degree arson and second degree arson concerns primarily human occupancy.”). First-degree arson involves the burning of a building, and sometimes the contents of a building, that is or is likely to be occupied. Under section 806.01(1), it is committed when “[a]ny person ... willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged” (a) “[a]ny dwelling, whether occupied or not, or its contents,” (b) “[a]ny structure, or contents thereof, where persons are normally present,” or (c) “[a]ny other structure that he or she knew or had reasonable grounds to believe was occupied.” Second-degree arson under section 806.01(2) involves the burning of other structures that are not expressly listed in the first-degree arson statute: it hinges on whether the fire or explosion “damage[d] or cause[d] to be damaged any structure.” The term “structure” is defined to include, among other things, “any building of any kind” and “any ... portable building.” § 806.01(3). The statutory definition of the term “structure” applies to both first- and second-degree arson.

Consistent with the arson statute's focus on treating the burning of buildings that are or are likely to be occupied more seriously than the burning of unoccupied ones, section 806.01(2) also provides that second-degree arson can be committed only “under any circumstances not referred to in subsection (1)”—i.e., only under circumstances that do not constitute first-degree arson. Under the statute, then, acts constituting the offense of first-degree arson are expressly excluded from the scope of the offense of second-degree arson. By statutory design, the circumstances constituting first-degree arson cannot simultaneously constitute second-degree arson.

One implication of this statutory separation of the two degrees of arson is that second-degree arson cannot be a necessary lesser included offense of first-degree arson. The supreme court held as much in Higgins v. State, 565 So.2d 698, 700 (Fla.1990). There, a prison inmate was convicted of first-degree arson under section 806.01(1)(b), which applies to “a structure or contents thereof where persons are normally present,” where there was evidence that the inmate burned his mattress but not the prison building itself. Id. at 699. Affirming the conviction, the Fourth District held that he was not entitled to a second-degree arson instruction and certified a question regarding whether second-degree arson is a necessary lesser included of first-degree arson. Id. at 698.

The supreme court answered that question in the negative and approved the Fourth District's affirmance of the conviction. Id. at 698–99. Explaining that “the district court reached the correct conclusion,” the supreme court quoted at length from the Fourth District's opinion in the case, including the following passage:

Section 806.01 first degree arson, does not include all of the elements of § 806.01(2) second degree arson, and the proof of first degree arson does not and cannot constitute proof of second degree arson. Proof of damage to any structure described in first degree arson would prevent the proof of second degree arson because second degree arson covers damage only to structures not described in first degree arson.

Id. at 699–700 (emphasis added) (quoting Higgins v. State, 553 So.2d 177, 178–79 (Fla. 1st DCA 1989) ). This confirms what the statute says: First-and second-degree arson are wholly separate, and one cannot be committed when the other has been.

The court did recognize, however, that “under certain circumstances and evidence” second-degree arson is a permissive lesser included offense of first-degree arson. Id. at 700. Those “circumstances and evidence” were not present in Higgins, however, because the evidence established only that Higgins burned a mattress in his prison cell, not the prison itself. Id. Because second-degree arson requires the element of burning an actual structure (a mattress does not count) while first-degree arson can also occur upon the burning of the contents of a structure that is normally occupied (a mattress does count), the evidence of first-degree arson in Higgins, involving only allegations of a burned mattress, did not support a permissive lesser included jury instruction on second-degree arson. Id. Put another way, the necessary second-degree element of a burned structure was not present in the evidence presented in Higgins so as to support an instruction on that offense. See Khianthalat, 974 So.2d at 361.

Higgins did not specify the “circumstances and evidence” under which a trial court would be required to instruct a jury on second-degree arson as a lesser included offense of first-degree arson. In dictum, the opinion suggested that if the evidence had shown that the prison cell itself was...