170 So. 3d 141
Fla. Dist. Ct. App.2015Background
- Defendant Marcus Jamal Graham was convicted of two counts of lewd or lascivious molestation for touching the victim’s breasts and buttocks (or the clothing covering them) in violation of § 800.04(5)(a), Fla. Stat. (2013).
- The touching occurred during a single, continuous episode with no temporal break between acts.
- Graham appealed, arguing his two convictions violate double jeopardy because the acts occurred in a single criminal episode.
- Graham also argued the trial court improperly limited cross-examination of the victim and her mother regarding prior sexual-abuse incidents (one in Mississippi and alleged abuse of the mother).
- The trial court excluded that cross-examination on the basis that any marginal relevance was substantially outweighed by prejudice.
- The First DCA affirmed, holding the convictions are for distinct acts under the statute and upholding the evidentiary rulings restricting cross-examination.
Issues
| Issue | Graham's Argument | State's Argument | Held |
|---|---|---|---|
| Double jeopardy for two molestation convictions | Multiple convictions violate double jeopardy because touches occurred in one continuous episode | Statute criminalizes distinct acts (breasts vs. buttocks); legislature permits separate punishments | Affirmed: no double jeopardy; convictions based on distinct acts |
| Exclusion of prior-abuse cross-examination (victim) | Prior abuse would show misinterpretation of innocuous touches; relevant impeachment | Prior incidents’ probative value is marginal and substantially outweighed by prejudice | Affirmed: trial court did not abuse discretion in limiting cross-exam |
| Exclusion of prior-abuse cross-examination (mother) | Mother’s abuse history relevant to credibility and motive | Same prejudice concerns; limiting testimony proper | Affirmed: exclusion appropriate under balancing test |
| Conflict with other DCA decisions | N/A (Graham argued relief) | This panel noted conflict exists with 4th DCA decisions | Certified conflict with Cupas and Webb; followed its analysis |
Key Cases Cited
- Drawdy v. State, 136 So. 3d 1209 (Fla. 2014) (double jeopardy review is de novo)
- Valdes v. State, 3 So. 3d 1067 (Fla. 2009) (legislative intent controls multiple punishments)
- Partch v. State, 43 So. 3d 758 (Fla. 1st DCA 2010) (analysis when no clear legislative intent)
- Sanders v. State, 101 So. 3d 373 (Fla. 1st DCA 2012) (multiple acts vs. single episode test)
- Meshell v. State, 2 So. 3d 135 (Fla. 2009) (distinct sexual acts can support multiple punishments)
- Roberts v. State, 39 So. 3d 372 (Fla. 1st DCA 2010) (lewd-molestation statute proscribes distinct acts)
- Cupas v. State, 109 So. 3d 1174 (Fla. 4th DCA 2013) (conflicting holding on single-episode convictions)
- Webb v. State, 104 So. 3d 1153 (Fla. 4th DCA 2012) (conflicting holding on multiple convictions)
- Ware v. State, 124 So. 3d 388 (Fla. 1st DCA 2013) (probative value vs. prejudice balancing for cross-examination)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (test for determining separate offenses under double jeopardy)