Viladoine v. State, 4D16-218

• Decision Date: 03 April 2019
• Docket Number: No. 4D16-218,4D16-218
• Parties: Val VILADOINE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

268 So.3d 804

Val VILADOINE, Appellant,

v.STATE of Florida, Appellee.

No. 4D16-218

District Court of Appeal of Florida, Fourth District.

[April 3, 2019]

Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.

Gross, J. Val Viladoine was charged with two counts of sexual battery upon a child less than twelve years of age whom his wife was babysitting after school. The basis of Count I was "causing his penis to penetrate or unite with" the victim's vagina, and the basis of Count II was "causing his finger to penetrate the vagina" of the five-year-old victim. Forensic medical testimony provided physical evidence that an assault had occurred.

Viladoine's primary defense at trial was alibi. He said he was in Miami the day of the incident and that he arrived home at around 5:00 p.m. He denied seeing the victim. Including Viladoine, five witnesses testified in support of the alibi.

The jury convicted Viladoine of Count I and acquitted him of Count II.

We reverse the conviction because the trial court erred in allowing the state to amend Count I of the information during trial to add the charge that the crime was committed with an object.

By the time of trial, the victim was ten years old. As to Count I, the victim testified that appellant "put his gun in my vagina." When asked how she knew it was a gun inside her vagina, she replied, "Because I could hear the noise." The prosecutor asked, "Why do you call it a gun?" and she testified, "Because it's a toy gun and it's shaped like one, that's why." She described the gun: "The color is pinkish something and it's a toy and the color is pink or something. It's a toy and the color is pink."

On cross-examination, the victim testified that she knew the difference between a gun and a penis.

After the state rested, Viladoine moved for judgment of acquittal, focusing on Count I, arguing that there was no testimony that the defendant's penis penetrated or united with the victim's vagina. The state argued that it was for the jury to determine whether what the child described as a gun was actually a penis because the child did not know the word for penis at age five.

The trial judge correctly observed that "there's no evidence that [the victim] ever referred to the male organ as a gun." After a break, the trial court granted the state's motion to amend Count I of the information to add penetration by an object. The court found no prejudice to the defendant because his defense was alibi.

This case is controlled by Diaz v. State , 38 So.3d 791 (Fla. 4th DCA 2010), and Simbert v. State , 226 So.3d 883 (Fla. 4th DCA 2017), sexual assault cases where convictions were reversed because the mode of unlawful contact with the victim, as alleged in the information, was changed mid-trial.

In Diaz , a defendant was charged with sexual battery "by inserting his fingers into the victim's vagina." 38 So.3d at 792. After the state rested at trial, the defendant moved for a judgment of acquittal because the state had not proven digital penetration. Id. The trial court permitted the state to amend the information to "include oral union with the victim's vagina." Id. We reversed the conviction, writing that " ‘[p]roof of another separate and distinctly different crime rather than the one charged constitutes a fatal variance in proof which in a criminal case cannot be ‘cured’ by amending the charging document to conform to the proof of the crime not charged.’ " Id. at 793 (quoting Rose v. State , 507 So.2d 630, 632 (Fla. 5th DCA 1987) ).

Like Diaz , Simbert involved the charge of lewd or lascivious battery where a mid-trial amendment changed the mode of unlawful contact from "oral to digital penetration." 226 So.3d at 884. We held that the amendment changed an " ‘essential element’ of the charged crime." Id. We wrote that an " ‘amendment that substantively alters the elements of the crime charged is per se prejudicial.’ " Id. at 885 (quoting Wright v. State , 41 So.3d 924, 926 (Fla. 1st DCA 2010) ).

Per se prejudice aside, the amendment here altered the way the defense might have prepared the case. Although the child suffered severe injury from the penetration, she did not immediately report the incident when her mother picked her up. The mother took the victim home and began to prepare dinner. About an hour and a half after her mother picked her up from the sitter's, the victim reported bleeding to her mother. Even though the defense was alibi, if the charge was object penetration with a pink toy gun, careful preparation would have focused on whether a pink toy gun was ever present at the sitter's home.

As to...