120 So. 3d 1
Fla. Dist. Ct. App.2012Background
- Horn was convicted of sexual battery and attempted lewd or lascivious molestation involving a victim under age 12 by a defendant at least 18 years old.
- The State's theory linked two acts within the same criminal episode: touching of the victim's breasts and the head between the breasts.
- Appeal asserted two issues: (i) double jeopardy from separate convictions for two distinct acts, (ii) failure to instruct on a permissive lesser-included offense (unnatural and lascivious act) for the lewd or lascivious molestation charge.
- The trial court denied the lesser-included offense instruction; the jury was instructed only on the charged offense and attempt for count two and found a verdict of attempt.
- Court affirmed the sexual battery conviction but reversed on the lesser-included offense matter, remanding for a new trial on attempted lewd or lascivious molestation.
- Judgment: affirmed in part, reversed in part, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy of separate acts | Horn argues two distinct acts violate double jeopardy. | State contends acts are distinct under Roberts v. State. | Denied; two distinct acts supported separate convictions. |
| Improper failure to give lesser-included offense instruction | Horn requests instruction on unnatural and lascivious act as lesser-included offense. | Court refused instruction; only charged offense and attempt given. | Remanded for new trial on attempted lewd or lascivious molestation. |
Key Cases Cited
- Roberts v. State, 39 So.3d 372 (Fla. 1st DCA 2010) (basis for treating two acts as separate offences)
- Khianthalat v. State, 974 So.2d 359 (Fla.2008) (permissive lesser-included offense requires elements and evidence)
- Anderson v. State, 70 So.3d 611 (Fla. 1st DCA 2011) (definition of permissive lesser-included offenses in context)
- Williams v. State, 627 So.2d 1279 (Fla. 1st DCA 1993) (instruction required when lesser-included offense can be proven with the greater offense)
- Clark v. State, 43 So.3d 814 (Fla. 1st DCA 2010) (instruction on permissive lesser-included offense must be given)
- Sherrer v. State, 898 So.2d 260 (Fla. 1st DCA 2005) (recognizes natural and lascivious act as permissive lesser-included offense)
- Pena v. State, 901 So.2d 781 (Fla.2005) (harmlessness of failure to instruct depends on opportunity to convict on lesser offense)
- Fernandez v. State, 570 So.2d 1008 (Fla. 2d DCA 1990) (analysis of instructional error)
- McKiver v. State, 55 So.3d 646 (Fla. 1st DCA 2011) (harmfulness depends on jury's opportunity to convict on lesser offense)
- Williams v. State, 627 So.2d 1279 (Fla. 1st DCA 1993) (earlier Williams decision cited re lesser-included instruction)