Stoffel v. State, 1D16–0079

• Decision Date: 16 May 2018
• Docket Number: No. 1D16–0079,1D16–0079
• Citation: 247 So.3d 89
• Parties: Rafael Jacob STOFFEL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

247 So.3d 89

Rafael Jacob STOFFEL, Appellant,

v.STATE of Florida, Appellee.

No. 1D16–0079

District Court of Appeal of Florida, First District.

May 16, 2018

Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Thomas H. Duffy, Assistant Attorney General, Tayo Popoola, Assistant Attorney General, and Steven Woods, Assistant Attorney General, Tallahassee.

B.L. Thomas, C.J.

Appellant, Rafael Jacob Stoffel, appeals his conviction and sentence for lewd or lascivious molestation of a child under the age of twelve. § 800.04(5), Fla. Stat. (2014). Appellant raises two issues on appeal: 1) whether the trial court erred by denying his request for a jury instruction on the lesser-included offense of battery; and 2) whether the trial court's imposition of the minimum-mandatory term of twenty-five years' imprisonment constitutes cruel and unusual punishment under both the Florida and federal constitutions.^* We find no merit as to the second issue, but write to address Appellant's claim that he was entitled to a jury instruction on battery.

I.

Appellant took his nine-year-old stepdaughter, S.P., to a movie on a "daddy-daughter" date to celebrate her upcoming birthday. A few minutes into the movie, Appellant asked if he could touch S.P.'s breasts. S.P. consented and Appellant proceeded to put his hand underneath S.P.'s shirt and grabbed her breasts. After the movie, Appellant apologized to S.P. for his actions.

Approximately a year after the incident, S.P.'s mother asked S.P. if Appellant had ever touched her inappropriately. S.P. then told her mother what occurred. S.P.'s mother then confronted Appellant about the incident, and Appellant admitted to touching S.P.'s breasts. Appellant expressed remorse for his actions and self-reported the incident by calling the Department of Children and Families (DCF). As a result, DCF sent its investigator and an Okaloosa County Deputy Sheriff to S.P.'s home. Recorded interviews were conducted with S.P., her mother, and Appellant. S.P. reiterated what had occurred during the movie. During his interview, Appellant stated that when he apologized to S.P for his actions, she stated, "Well, I did say yes." At the conclusion of the interviews, Appellant was arrested and charged with lewd or lascivious molestation of a child under the age of twelve.

During trial, S.P. testified that Appellant touched her breasts for approximately two to three minutes and told her that she was "growing up" and "becoming quite the woman." Additionally, S.P. testified that she "felt like something was wrong, but I wasn't, like, exactly sure, and I didn't really know what was going on." Appellant testified and admitted to touching S.P.'s breasts for a few seconds. Both the State and defense counsel stipulated that, while Appellant was touching S.P., Appellant told S.P. "your chest is getting big."

At the charge conference, defense counsel asked for a jury instruction on the lesser-included offense of battery. The trial court denied the request. The trial court, however, granted defense counsel's request for a jury instruction on the lesser-included offense of attempted lewd or lascivious molestation and a jury instruction for an unnatural and lascivious act.

In its closing statement, the defense argued that Appellant did not have the lascivious intent required to be found guilty of lewd or lascivious molestation. The trial court then instructed the jury:

THE COURT: Lewd or lascivious molestation. To prove the crime of lewd or lascivious molestation, the State must prove the following three elements beyond and to the exclusion of a reasonable doubt: One, [S.P.] was under the age of 12 at the time of the offense. Two, Rafael Stoffel intentionally touched in a lewd or lascivious manner the breasts of [S.P.]. Three, Rafael Stoffel was 18 years of age or older at the time of the offense.

The words "lewd" and "lascivious" mean the same thing. They mean a wicked, lustful, unchaste, licentious, or sensual attempt on the part of the person doing the act.

Neither the victim's loss of chastity nor consent is a defense to the crime charged. The Defendant's ignorance of the victim's age, the victim's misrepresentation of her age, or the Defendant's bona fide belief of the victim's age is not a defense to the crime charged.

During its deliberations, the jury asked the trial court the following question: "Ask [Appellant] why he decided to reach under her shirt. What was he thinking? What was his reasoning?" The trial court responded by informing the jury that "you have all of the evidence that's been received for your consideration of the verdict in this matter." The jury then resumed its deliberations and found Appellant guilty as charged.

II.

There are two categories of lesser-included offenses: necessary and permissive. Sanders v. State , 944 So.2d 203, 206 (Fla. 2006). "Necessarily lesser-included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense." Id. In contrast, a permissive lesser-included offense is one where both 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." Id. (quoting State v. Weller , 590 So.2d 923, 925 n.2 (Fla. 1991) ) (emphasis added).

A trial court must instruct the jury on a necessary lesser-included offense. McKiver v. State , 55 So.3d 646, 649 (Fla. 1st DCA 2011). However, the instruction on a permissive lesser-included offense must be given only if: 1) the charging document alleges all the statutory elements of the requested permissive lesser-included offense; and 2) some evidence is adduced at trial that establishes those statutory elements. Khianthalat v. State , 974 So.2d 359, 361 (Fla. 2008). Battery is listed as a lesser-included offense of lewd or lascivious molestation. Fla. Std. Jury Instr. (Crim.) 11.10(c). Accordingly, Florida courts have found that battery is a permissive lesser-included offense of lewd or lascivious molestation. Barnett v. State , 45 So.3d 963, 964 (Fla. 3d DCA 2010). The question for this Court is thus two-fold: 1) did the State's information allege the statutory elements of battery, and if so, 2) did the evidence adduced at Appellant's trial establish those elements?

III.

The elements of battery are an actual and intentional touching or striking of another, without their consent. § 784.03(1)(a)1., Fla. Stat. The fact that Appellant intentionally touched S.P. is uncontroverted. As a result, this Court's analysis centers on the remaining statutory element of consent.

The State's second amended information alleged that Appellant "on or about June 22, 2014, at and in Okaloosa County, Florida, while being eighteen (18) years of age or older, 31 years of age, did unlawfully and intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than twelve (12) years of age, S.P., ..., 9 years of age, or force or entice S.P. to touch the perpetrator, in violation of Section 800.04(5)(b), Florida Statutes."

The language of the information makes no mention of Appellant's touching being against the will of S.P., and there is no evidence in the record to support the finding that S.P. did not consent to Appellant's touching. Certainly, S.P.'s testimony indicates that at the time she felt uncertain or taken aback by Appellant's conduct. It is clear, however, that S.P.'s verbal statements to Appellant before and after the incident demonstrate that the touching was consensual.

We find the holding in Barnett to be persuasive here. The defendant in Barnett was charged with lewd or lascivious molestation of a child under the age of twelve. 45 So.3d at 964. He requested a jury instruction on battery, which the trial court denied. Id. Relying on Khianthalat , the Third District affirmed the trial court, holding that the defendant was not entitled to a jury instruction on battery, because "[t]he information did not include any language stating that the touching was against the will of the victim." Id.

The court in Barnett addressed Belser v. State , 854 So.2d 223 (Fla. 1st DCA 2003), which predated Khianthalat . Barnett , 45 So.3d at 964. In Belser , the defendant...