Wong v. State
| Decision Date | 02 March 2017 |
| Docket Number | No. SC15–2192,SC15–2192 |
| Citation | 212 So.3d 351 |
| Parties | Francis WONG, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Howard L. Dimmig, II, Public Defender, and Dane Kristofor Chase, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and John M. Klawikofsky, Bureau Chief, and Brandon Robert Christian, Assistant Attorney General, Tampa, Florida, for Respondent
Petitioner Francis Wong seeks review of the decision of the Second District Court of Appeal in Wong v. State , 184 So.3d 1122 (Fla. 2d DCA 2015), on the basis that it expressly and directly conflicts with the decision of this Court in State v. Heathcoat , 442 So.2d 955 (Fla. 1983), on a question of law.1 We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Further, we accepted jurisdiction. Wong v. State , No. SC15-2192, 2016 WL 934487, *1 (Fla. Mar. 9, 2016). We now quash the decision below.
Wong was convicted of two counts of lewd or lascivious molestation against a victim less than twelve years of age, § 800.04(5)(b), Fla. Stat., three counts of lewd or lascivious molestation against a victim between twelve and sixteen years of age, § 800.04(5)(c)(2), Fla. Stat., and one count of lewd or lascivious battery against a victim less than sixteen years of age, § 800.04(4)(b), Fla. Stat. With regard to the five lewd or lascivious molestation counts, the final amended information filed alleged that Wong "did intentionally touch in a lewd or lascivious manner the genitals and/or genital area" of each of three victims—P.C., C.C., and S.N.—over the course of differing time periods from 2000 to 2011.2 In addition, with regard to a lewd or lascivious battery count involving S.N., the information alleged Wong "plac[ed] the victim's penis in his mouth ...."
During trial, each victim testified that Wong had at least once grabbed or rubbed the victim's penis, making skin-to-skin contact for at least ten seconds. In addition, S.N. testified that Wong placed S.N.'s penis in his mouth.
On the second day of trial, November 20, 2013, the trial court conducted the only jury charge conference of the case. During this conference, the following exchange between the Court and the attorneys occurred:
(Emphasis added.) The exchange then transitioned to a discussion concerning some of the defense's upcoming witnesses and limiting their testimony insofar as it concerned character. No further discussion occurred with regard to the jury instructions. The defense eventually rested and the trial court went into recess until the next morning. During the third and final day of trial, the State and defense presented closing remarks.
Following closing remarks, the trial court instructed the jury. The judge did not instruct the jury with regard to the offense of unnatural and lascivious act. See § 800.02, Fla. Stat. ().3 The copy of instructions that went into the jury room also did not contain such instructions. Wong did not reassert his objection to the lack of the requested instructions at that time.
After deliberating, the jury found Wong guilty of all six counts. In so finding, the jury returned a special verdict form in which it specifically found that Wong touched the genitals or genital area of each victim with regard to each count and that Wong did "encourage, force or entice the penis of S.N. to penetrate the defendant's mouth." The trial court ultimately sentenced Wong to life imprisonment for both counts involving a victim under the age of twelve years old and fifteen years' imprisonment for each of the other counts.
On appeal before the Second District, Wong challenged the trial court's failure to include the jury instructions he had requested for each count pertaining to the lesser included offense of unnatural and lascivious act. Wong , 184 So.3d at 1123. The State contended that Wong failed to preserve his claim for appeal. Specifically, the State asserted that the exchange between the trial court and defense counsel during the charge conference was insufficient to satisfy the contemporaneous objection rule because counsel failed to obtain a specific ruling or object further. Id. at 1125 n.4.
The Second District affirmed. Id. at 1126. The district court held that Wong failed to preserve his claim for appeal because "the trial court did not rule on the request and defense counsel did not object to the court's failure to give the instruction." Id. It further explained that "the standard is whether the trial court clearly, explicitly, and unequivocally denied the request." Id. Judge Wallace, however, concluded that Wong's request and the trial court's response were sufficient to preserve the issue for appeal without a subsequent objection. Id. at 1133 (Wallace, J., concurring in part, dissenting in part). Judge Wallace further noted that if the issue was preserved for appeal, the State conceded that the trial court erred in failing to include such instructions for each charge. Id. at 1128, 1133. Wong petitioned for review in this Court, and this review follows.
Where the facts are undisputed, whether an issue is properly preserved for appellate review is a question of law that this Court reviews de novo. See Aills v. Boemi , 29 So.3d 1105, 1108 (Fla. 2010). Requests for jury instructions in a criminal trial are governed by section 918.10, Florida Statutes, which provides:
§ 918.10, Fla. Stat. (2013). Florida Rule of Criminal Procedure 3.390(d) specifically governs the preservation of claims for appellate review with regard to jury instructions:
(d) Objections. No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the presence of the jury.
Fla. R. Crim. P. 3.390(d). This rule has been the subject of many cases, including Heathcoat , 442 So.2d 955.
In Heathcoat , defense counsel requested a jury instruction on the defense of intoxication and explained the grounds for the request:
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