Wilson v. State

• Decision Date: 07 July 1993
• Docket Number: No. 91-2571,91-2571
• Parties: 18 Fla. L. Week. D1573 Thomas F. WILSON, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 31

622 So.2d 31

18 Fla. L. Week. D1573

Thomas F. WILSON, Jr., Appellant, v. STATE of Florida, Appellee.

No. 91-2571.

District Court of Appeal of Florida,

First District.

July 7, 1993.

Nancy A. Daniels, Public Defender, David P. Gauldin, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Andrea D. England, Asst. Atty. Gen., Tallahassee, for appellee.

MICKLE, Judge.

Thomas F. Wilson, Jr., appeals his conviction and sentences of capital sexual battery (on children under age 12) and lewd and lascivious assault in violation of sections 794.011(1)-(2) & 800.04(1), Florida Statutes (1989), respectively. We affirm.

Appellant alleges the trial court erred in its failure to grant the motion for severance (Issue I), 2) to take judicial notice of the state's dismissal of Count VII of the information and allow defense counsel to argue the dismissal to the jury (Issue II), and 3) to give the jury an "attempt" instruction on the sexual battery and lewd and lascivious assault counts (Issue III). Issue IV challenges the sufficiency of the evidence to support the seven remaining counts in the information and the convictions.

We find no reversible error as to Issue I. As to Issue II, we find no abuse of discretion. See sections 90.203-.206, Florida Statutes (1989); Brown v. State, 513 So.2d 213, 214 (Fla. 1st DCA 1987), cause dism., 520 So.2d 583 (Fla.1988). On Issue IV, concerning the sufficiency of the evidence, we find the evidence supporting Appellant's convictions is competent and substantial. Davis v. State, 569 So.2d 1317, 1318 (Fla. 1st DCA 1990); Snodderly v. State, 528 So.2d 982 (Fla. 1st DCA 1988).

We believe it will prove useful to explain the basis of our affirmance of Issue III, the trial court's failure to give an attempt instruction for any of the offenses charged. Counts I, III, V and VII of the information charged Appellant with unlawfully committing sexual battery on, or injuring the sexual organs of during an attempt upon, a person less than 12 years of age, in violation of section 794.011(1)-(2). Counts II, IV, VI and VIII charged that Appellant unlawfully handled, fondled, or made an assault on a child under the age of 16 in a lewd, lascivious or indecent manner, in violation of section 800.04(1). The alleged victims of the offenses are four sisters, ranging in age from 5 to 11 1/2 years at the time of the offenses. The state nolle prossed Count VII.

At the charge conference, defense counsel specifically requested a jury instruction on attempted sexual battery and attempted lewd and lascivious assault. Section 777.04(1), Florida Statutes (1989), governs attempts and provides:

Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpretration or is intercepted or prevented in the execution of the same, commits the offense of criminal attempt and shall, when no express provision is made by law for the punishment of such attempt, be punished as provided in subsection (4). The offense of criminal attempt shall include the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law.

The standard jury instruction for attempt to commit a crime reads alternatively as follows. When attempt is charged or is a lesser included offense, the instruction begins:

[Before you can find the defendant guilty of an Attempt to Commit (crime charged), the State must prove the following two elements beyond a reasonable doubt:]

When it is necessary to define attempt as an element of another crime, the instruction begins:

[In order to prove that the defendant attempted to commit the crime of (crime charged), the State must prove the following beyond a reasonable doubt:]

Following either of the above initial instructions, the following elements are read:

1. (Defendant) did some act toward committing the crime of (crime attempted) that went beyond just thinking or talking about it.

2. He would have committed the crime except that

[someone prevented him from committing the crime of (crime charged).]

[he failed.]

The defense included in section 777.04(5)(a) is to be read as follows:

It is not an attempt to commit (crime charged) if the defendant abandoned his attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of his criminal purpose.

The trial court refused to give an attempt instruction, based on its understanding 1) that "attempt" is listed in the Standard Jury Instructions in Criminal Cases as a Category 2 lesser included offense for both sexual battery and lewd and lascivious assault, see In re Standard Jury Instructions in Criminal Cases, 543 So.2d 1205, 1236 (Fla.1989), and 2) that the decision whether to give an "attempt" instruction is discretionary unless the evidence supports attempt. In In re Standard Jury Instructions, the "Comment on Schedule of Lesser Included Offenses" defines Category 2 as including "[o]ffenses which may or may not be included in the offense charged depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses." Id. at 1232; Williams v. State, 579 So.2d 754, 755 (Fla. 3d DCA 1991). Note 4 of the Comment provides: "Except as stated above, attempts to commit crimes generally are included unless the evidence conclusively shows that the charged crime was completed. In such case, attempt should not be instructed." 543 So.2d at 1233. "Attempt" is listed under Category 2 for both sexual battery and lewd and lascivious assault. 543 So.2d at 1236.

An instruction on a permissible lesser included (Category 2) offense must be given "only where the pleading and proof coincide," see Henry v. State, 445 So.2d 707, 708 (Fla. 4th DCA 1984), and "the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged." Cooper v. State, 512 So.2d 1071, 1072 & n. 1 (Fla. 1st DCA 1987). (Emphasis in original.) See State v. Weller, 590 So.2d 923, 926 (Fla.1991); Amado v. State, 585 So.2d 282 (Fla.1991). Thus, whether a charge of a lesser crime, such as attempt, under Category 2 is necessary will require the trial court to analyze the charging document as well as the proof to determine whether elements of Category 2 crimes have been alleged and proved. State v. Wimberly, 498 So.2d 929, 931 (Fla.1986); In re Standard Jury Instructions, 543 So.2d at 1232-33; Johnson v. State, 572 So.2d 957, 959 (Fla. 1st DCA 1990), approved, 601 So.2d 219 (Fla.1992) (existence of Category 2 lesser offense is discoverable only on close examination of the allegations and proof connected with the charge).

Fla.R.Crim.P. 3.510 states:

Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:

(a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.

(b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

The state maintains that absolutely no evidence was presented from which the jury could have concluded that either attempted sexual battery or attempted lewd and lascivious assault occurred. If the state is correct, then it would have been error for the trial court to charge the jury on an "attempt" offense where the only evidence proved a completed offense. See Fla.R.Crim.P. 3.510(a); Gleason v. State, 591 So.2d 278, 279 (Fla. 5th DCA 1991); Pride v. State, 511 So.2d 1068 (Fla. 1st DCA 1987); Henry.

Appellant relies on Firkey v. State, 557 So.2d 582, 586 (Fla. 4th DCA) (on reh'g), rev. den., 574 So.2d 140 (Fla.1990), in which the Fourth District Court said "[a]ttempted sexual battery on a child under the age of eleven is a lesser necessarily included offense of the charged offense of sexual battery on a child under the age of eleven." (Emphasis supplied.) The state correctly points out that the court in Firkey considered lesser included offenses in the context of sufficiency of the evidence to support conviction, rather than in the context of jury instructions, and provided no supporting statutory or decisional authority for the statement quoted above. We find the Supreme Court of Florida has addressed the classification of attempts for both of the types of crime with which Appellant was charged and has placed attempts among the Category 2 permissively lesser included offenses. See 543 So.2d at 1236.

In light of the applicable law, as stated in Wilcott v. State, 509 So.2d 261, 262 (Fla.1987), we review the evidence to determine whether it conclusively and irrefutably shows the charged crimes were committed completely rather than merely attempted.

Counts I & II

Count I charged Appellant with commission of sexual battery on (or injury of the sexual organs of during an attempt on) S.K., by oral, anal or vaginal penetration by, or union with, Appellant's penis. The information essentially tracks the language defining "sexual battery" in section 794.011(1)(h), Florida Statutes (1989). Count II alleged he "did unlawfully handle, fondle, or make an assault" on her "in a lewd, lascivious or indecent manner," in violation of section 800.04(1). S.K., who was 11 1/2 years old at the time of the alleged offenses, testified that Appellant, who lived in a trailer near her family's residence, invited her over to help him unpack shortly after Easter. As S.K. bent over to pick up something, Appellant touched or rubbed her on the hip, on...