Thach v. State
| Decision Date | 30 June 2022 |
| Docket Number | SC20-1656 |
| Citation | 342 So.3d 620 |
| Parties | Ngoc C. THACH, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Jessica J. Yeary, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner
Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, Florida for Respondent
In this case, we consider whether midtrial amendments to a charging document that alter the elements of a criminal offense are per se prejudicial. For the reasons explained below, we hold that any such amendments should be assessed on a case-by-case basis to determine, based on the totality of the circumstances, if they prejudice the substantial rights of the defendant. Consistent with our holding, we approve the First District Court of Appeal's decision in Thach v. State , 304 So. 3d 387, 388 (Fla. 1st DCA 2020), and disapprove the Fourth District Court of Appeal's decisions in Viladoine v. State , 268 So. 3d 804 (Fla. 4th DCA 2019), and Simbert v. State , 226 So. 3d 883 (Fla. 4th DCA 2017), to the extent that they apply a per se prejudice rule to midtrial amendments.1
Through a second amended information, the State charged Ngoc C. Thach with three counts of capital sexual battery, nine counts of sexual battery, and three counts of lewd or lascivious molestation. As charged, these crimes were committed against his three stepdaughters. Relevant to this case are two counts of capital sexual battery and two counts of sexual battery. We refer to all four as sexual battery counts.
At trial, the three stepdaughters testified for the State, detailing Thach's multiple sexual encounters with them. However, they did not give any testimony establishing one element of sexual battery (penetration or union with the victim's body part) for the four sexual battery counts. As a result, the evidence as to those charges was insufficient to prove an essential element of the offenses as charged. See § 794.011(1)(h), Fla. Stat. (2017).
Noting the lack of evidence of penetration or union, Thach sought a judgment of acquittal as to those four sexual battery charges. After expressing agreement with Thach's insufficiency argument, the State moved to amend the four counts so that each alleged the crime of lewd or lascivious molestation. Defense counsel objected, describing the prejudice to Thach as follows:
Well, Judge, I guess the only thing is that the lewd and lascivious molestation would require evidence of lewd or lascivious touching. And so the State is alleging that the union satisfies that and potentially I could have cross-examined the witness more in that sense, had I known the State might proceed on that charge. And I understand that, you know, I had the opportunity to cross-examine the witness, but to that extent that's the only thing I can suggest to the court would create a prejudice.
Rejecting Thach's argument on prejudice, the trial court allowed the amendment. Ultimately, the jury found Thach guilty on the four amended counts and others. The court entered judgment in accordance with the verdicts and imposed lengthy prison sentences.
Thach appealed, arguing that the trial court erred in allowing the midtrial amendment. The First District disagreed. At the outset, the court articulated the following legal standard governing amendments: "[T]he State ‘may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant.’ " Thach , 304 So. 3d at 388 (quoting State v. Anderson , 537 So. 2d 1373, 1375 (Fla. 1989) ). Applying that standard, the court held that the amendment did not prejudice Thach. This was so, the First District reasoned, because the four sexual batteries were charged in such a way "that the amended lewd or lascivious molestation charges could not help but have been proven if the ... [sexual battery] allegations were proven." Id. at 388. Judge Bilbrey dissented. He would have reversed, reasoning that because the amendment altered the elements of the charged offense it violated due process and was per se prejudicial. Id. at 391 (Bilbrey, J. dissenting).
Thach then sought discretionary review of the First District's decision on the basis that it expressly and directly conflicts with the Fourth District's case law on the application of a per se prejudice rule for substantive midtrial amendments. We granted discretionary review to resolve the conflict.2
Our well-established standard for amending an information midtrial was first adopted in Lackos v. State , 339 So. 2d 217, 219 (Fla. 1976). In that case, we abandoned a strict formalistic approach and adopted a more flexible standard which required the trial court to consider the prejudice to the accused to determine if the amendment was permissible. We noted that the emphasis on prejudice, rather than technical irregularities, was consistent with rule 3.140(o) of the Florida Rules of Criminal Procedure.3
In the forty-five years since Lackos was decided, we have reaffirmed our commitment to the prejudice standard as governing the permissibility of midtrial amendments. See Anderson , 537 So. 2d at 1375 (); State v. Clements , 903 So. 2d 919, 921 (Fla. 2005) ().
Our case law has never recognized a per se prejudice rule. Rather, the origin of this rule appears to trace back to the Fourth District's decision in Green v. State , 728 So. 2d 779 (Fla. 4th DCA 1999). In applying the prejudice standard, the Fourth District considered a midtrial amendment that changed the identity of the battery victim. Consistent with our case law, the Fourth District held that this amendment prejudiced the substantial rights of the defendant by significantly impairing the preparation of his defense. However, one sentence in Green's analysis appears to have laid the groundwork for what would later be understood as the per se prejudice rule. The Green court reasoned that an "amendment is permissible when it merely clarifies some detail of the existing charge." Id. at 781.
The First District expanded upon this reasoning in Wright v. State , 41 So. 3d 924, 926 (Fla. 1st DCA 2010). Holding that a substantive midtrial change to the elements of the crime charged is per se prejudicial, the district court reasoned:
While a trial court's ruling on a motion to amend the information is reviewed for an abuse of discretion, it is well settled that the State may not amend an information during trial if the amendment prejudices the defendant. It is likewise clear the changing or adding of an offense in an information is a substantive change evoking prejudice and requiring a continuance. Further, an amendment that substantively alters the elements of the crime charged is per se prejudicial .
Id. at 926 (emphasis added) (citations omitted).
Since Wright , the per se prejudice rule has been applied in only a handful of cases—namely, the two conflict cases.
In Simbert , the Fourth District reversed the defendant's conviction for lewd or lascivious battery after the State's midtrial amendment changed an element of the charge from oral to digital penetration. 226 So. 3d at 885. The court, relying on Green and Wright , held that the amendment was per se prejudicial because it did not merely clarify the charge but instead changed an essential element of the crime. Id. at 885-86.
Similarly, in Viladoine , the Fourth District reversed a sexual battery conviction where the mode of unlawful contact was amended midtrial, reasoning that the amendment altered the elements of the charged crime and was thus per se prejudicial. 268 So. 3d at 805-06.
Having reviewed our case law, we now conclude that this per se prejudice rule is an unwarranted expansion of Lackos , Anderson , and Clements —which do not hold or suggest that one factor will always be dispositive of the prejudice analysis. And neither Thach nor the dissent provide any persuasive reason to extend Lackos , Anderson , and Clements in this regard. Accordingly, we reaffirm that the proper standard is an individualized showing of prejudice to the substantial rights4 of the defendant. Prejudice, in this context, depends not on any one factor, but on the totality of the circumstances at the time of the amendment. Contrary to the dissent's unfounded assertion, we are not creating a new standard today. The standard we now adhere to has been our rule for forty-five years.5
Nor do we share Thach's or the dissent's concerns that this standard is too difficult for Florida courts to apply uniformly. In comparable circumstances, we have found this type of individualized fact-specific analysis workable. For example, when the State commits a discovery violation in a criminal case, it does not result in an automatic mistrial. Instead, the trial court conducts a Richardson6 analysis to determine whether the discovery violation warrants a mistrial or some other remedy. See Landry v. State , 931 So. 2d 1063, 1065 (Fla. 4th DCA 2006). Carrying out this analysis requires courts to look to the specific facts and circumstances of each case and determine whether the defendant was prejudiced by the discovery violation. See McDuffie v. State , 970 So. 2d 312, 321 (Fla. 2007). And like the individualized prejudice analysis for midtrial amendments, it safeguards defendants’ rights while ensuring the prompt and efficient administration of justice.7
Finally, we categorically reject the dissent's assertion that our decision will lead to "trials by ambush." In no way do we...
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