BENJAMIN B. STALKER v. STATE OF FLORIDA
223 So. 3d 282
| Fla. Dist. Ct. App. | 2017Background
- Benjamin B. Stalker appealed convictions for multiple counts of child sexual battery and related offenses; the Fourth District affirmed.
- Count IV originally alleged vaginal penetration between Nov. 1, 2010 and Dec. 23, 2013; later amended to begin Oct. 1, 2009 and to include “union with.”
- At trial, the state presented evidence covering multiple episodes and different factual theories supporting Count IV.
- Stalker argued on appeal that the jury verdict as to Count IV may be non‑unanimous because the state relied on different factual theories, claiming fundamental error.
- The issue was not preserved below (no objection, no motion to dismiss, no bill of particulars).
- The court affirmed all issues and explained why the unanimity/fundamental‑error argument could not be raised for the first time on appeal in this child sexual‑abuse charging context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury unanimity was compromised by the State presenting multiple factual theories for Count IV | Stalker: multiple distinct theories/episodes mean jury could have convicted on different acts -> non‑unanimous verdict; fundamental error | State: charging grouped sexual acts into single counts across time is permissible in child sexual‑abuse cases; no objection below so issue not preserved | No fundamental error shown for purposes of raising an unpreserved claim on appeal; affirmed |
| Whether the State must elect a single theory on remand if conviction vacated | Stalker: requests the State be required to elect a theory on retrial to ensure unanimity | State: election unnecessary where charging method groups indistinct acts and defendant did not object | Court declined to order election because objection was not preserved and grouping is acceptable practice in these cases |
| Whether defendant preserved challenge to charging method (bill of particulars/request to narrow) | Stalker: contends charging was defective as it permitted reliance on different acts | State: defendant never sought particulars or moved to dismiss; acquiesced to charging pattern | Issue not preserved; defendant cannot raise it for the first time on appeal |
| Whether child sexual‑abuse charging practice constitutes reversible fundamental error when not objected to | Stalker: analogizes Perley/Chaffin to argue fundamental error exists | State: distinguishes Perley/Chaffin and relies on child‑abuse cases allowing grouped counts; prosecution did not invite jury to choose between clearly distinct incidents | Court: child sexual‑abuse cases treated differently; grouping types/expanded time frames is permissible absent timely objection; no reversal |
Key Cases Cited
- Perley v. State, 947 So. 2d 672 (Fla. 4th DCA 2007) (conviction vacated where single count was supported by two entirely separate incidents, risking non‑unanimous verdict)
- Chaffin v. State, 121 So. 3d 608 (Fla. 4th DCA 2013) (tampering conviction was fundamental error where jury could convict based on either of two distinct incidents)
- Whittingham v. State, 974 So. 2d 616 (Fla. 4th DCA 2008) (distinguishes Perley in child sexual‑abuse context; grouping types/expanded time frames permissible absent objection)
- Elghomari v. State, 66 So. 3d 416 (Fla. 4th DCA 2011) (no fundamental error even where prosecutor invited jury to convict on multiple incidents in sex‑abuse case)
- State v. Generazio, 691 So. 2d 609 (Fla. 4th DCA 1997) (approves charging method when victim cannot specify dates/events)
- Dell’Orfano v. State, 616 So. 2d 33 (Fla. 1993) (recognizes special evidentiary/charging problems in child sexual‑abuse prosecutions)
- Krause v. State, 98 So. 3d 71 (Fla. 4th DCA 2012) (defines fundamental error standard)
- Bassallo v. State, 46 So. 3d 1205 (Fla. 4th DCA 2010) (quoted standard for fundamental error)