Paul v. StatePaul v. State
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Paul appeals convictions and sentences on four counts of lewd or lascivious acts against a thirteen-year-old victim. Paul was charged with committing six acts of lewd and lascivious molestation, conduct and exhibition, and was found guilty of four; counts I and IV-VI. The issue on appeal is whether the multiple convictions, arising out of the same series of events, violate state and federal double jeopardy protections. We conclude that he was properly convicted on two of the counts and, therefore, affirm in part and reverse in part.
Count I charged that Paul intentionally touched the victim‘s genital area, or the clothing covering it, contrary to
Taking the evidence most favorable to the state, it reflects that Paul came to the apartment of the thirteen-year-old male victim, where the viсtim‘s parents were asleep in their bedroom. They first went into the living room of the apartment. There, Paul kissed the victim on the neck and rubbed the outside of the victim‘s pants over his penis. Seeing that an adjoining bedroom was empty, Paul asked the victim if they could go into that room. They walked into the bedroom and shut the door. There, Paul proceeded tо place his hand on the victim‘s penis underneath his clothing. The victim then removed his shorts, touched Paul‘s penis, and Paul rubbed his exposed penis over the victim‘s leg and stomach and ejaculated. At that point, the victim‘s sister and her boyfriend arrived.
In a number of decisions, this court has recognized that where a defendant is charged with lewd and lascivious battery, the diffеrent acts of touching are to be viewed with reference to the spatial and temporal aspects of the surrounding circumstances in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between occurrences. See Eaddy v. State, 789 So.2d 1093, 1095 (Fla. 4th DCA 2001); Coffield v. State, 872 So.2d 430 (Fla. 4th DCA 2004); Mijarez v. State, 889 So.2d 827 (Fla. 4th DCA 2004). In each case, the sex acts in question occurred in a single eрisode and a single location, with one act immediately following the other, with no temporal breaks, and without the requisite time for the defendant to pause and reflect in order to form a second criminal intent.
In Coffield, we recognized that the circumstances in that case were clearly distinguishable from those in Saavedra v. State, 576 So.2d 953, 955 (Fla. 1st DCA 1991). In Coffield, the acts of touching in question occurrеd in a meter room, at one time, while in Saavedra, the defendant kidnapped the victim and engaged in three separate incidents of intercourse, all within the same night, but occurring at three distinct locations. The First District, in Saavedra, recognized that the perpetrators had enough time in between each sexual encounter to reflect on the last act and form a nеw criminal intent to commit the next sexual act. Id.
Although the Coffield opinion mentions an act of kissing that occurred prior to entry into the meter room, it is clear from the appellant‘s brief in Coffield that both of the criminal acts in question in that case occurred in the meter room; one count was for Coffield‘s act of touching the victim‘s vagina with his finger and the other count for penetrating with his penis.
In the present case, two aspects of double jeopardy are in question: (1) whether there was any break between the lewd acts committed by Paul where he could reflect and form criminal intent before the next act, and (2) whether Paul may be convicted of separate offenses where the legislature, in 1997, amended
With regard to the temporal break in time and space question, we conclude that this case is most analogous to Saavedra, where double jeopardy was not found as to three convictions of sexual battery where the defendant raped the victim in her backyard, then took her to a slide in a pаrk and raped her, then moved her elsewhere
In this case, at the point in time at which Paul asked the victim if they could move from the living room into the еmpty bedroom, Paul had the time to pause and reflect on what he was doing, thus separating counts I and V (kissing the victim on the neck and touching the victim‘s genitals outside his clothing in the living room) from counts IV and VI (Paul exposing his penis to the victim and Paul rubbing his penis on the victim). This is demonstrated by the fact that Paul deliberately moved the victim from the more public living room into the mоre private bedroom where they were less likely to be discovered.
We are obligated to apply this statute consistent with
The application of the amended statute to multiple counts was recently addressed in Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), where the Fifth District took a contrary position. There, the defendant was found guilty of multiple counts of sexual battery, lewd or lascivious molestation, lewd or lasсivious exhibition, and lewd or lascivious conduct. The court reviewed the statute and concluded that the legislature intended, by the amendment, to authorize separate convictions and punishments for each subsection of
The language and structure of the amended statute does focus on individual acts and creates separate criminal offenses in each subsection that designates a specific degree of the crime and the
punishment to be imposed for each. We conclude that the legislative intent is clear that separate punishments be imposed for each criminal offense created by the statute. Therefore, with respect to Hunsicker‘s convictions for thе separate crimes of lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition, there is no double jeopardy violation.
Hunsicker was charged with two counts of lewd or lascivious molestation. Having resolved that the defendant could be charged in separate counts for violation of each subsection, the court recognized that where there are multiple charges as to any subsection, the court reverts to the analysis employed by the cases to determine whether more than one criminal episode occurred. The test is to determine whether there was a sufficient temporal break between the multiple acts charged as to any single subsection.
This court has recently followed a different course in a similar case. See Mijarez. Mijarez was charged with kissing and fondling a minor, having her disrobe, and engaging in intercourse. He was charged with violating multiple sections of
We, therefore, conclude that the lewd acts charged, under counts I and V, which occurred in the living room, are sufficiently separated from those acts that occurrеd in the bedroom, charged under counts IV and VI, to stand separately. We conclude that the separate acts committed in the bedroom, one in touching the victim‘s nude body in the manner described, and the other in Paul exposing his genitals, are not chargeable as separate offenses. Paul also should not be punished separately for the сumulative acts occurring in the living room.
Therefore, we certify conflict with Hunsicker, reverse in part, and remand for modification of the sentence to omit two counts and for re-sentencing as to the remaining counts.
KLEIN, J., concurs.
FARMER, C.J., dissents with opinion.
FARMER, C.J., dissenting.
I don‘t think this case should be distinguished from Mijarez v. State, 889 So.2d 827 (Fla. 4th DCA 2004); Coffield v. State, 872 So.2d 430 (Fla. 4th DCA 2004); and Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001). The issues are identical. Citing Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), the majority argue that because
The odd thing here is the majority‘s disinclination to follow this court‘s prior decisions in Mijarez, Coffield, and Eaddy. The majority say they have distinguished these other decisions from this case, but in truth they have failed in their attempt to do so. What they have really done is to simply reject the precedents of this court in favor of a contrary holding from another
I do not agree with the analysis regarding the statutory structure of subparagraphs discussed in Hunsicker, to authorize separate convictions and punishments for this kind of single sexual encounter. Hunsicker held that the pre-1999 version of
The 1999 amendments to this statute divided all lewd and lascivious acts in the presence of a child into four basic types.
In this case, defendant was сharged with, and convicted of, three different lewd and lascivious acts under
Because the actual text оf the new statute creates separate crimes, and each of them may constitute permissive lesser included offenses in one of the other offenses, I do not think Hunsicker‘s conclusion is correct. In fact, because the new
While these separate subparagraphs were all defined as distinct crimes for purposes
One begins with the recognition that the legislature has abrogated the common law “single transaction rule.” Borges v. State, 415 So.2d 1265, 1266 (Fla.1982). If the legislature states by clear text that it intends separate convictions and sentences for a single criminal act, there is no double jeopardy violation for the multiple punishments. Hayes, 803 So.2d at 699. Judges are required to consider whether there was a disconnect of time, place or circumstances between the initial offense and any supposed additional offense; these are objective criteria to determine whether distinct and independent criminal acts arе involved rather than one continuous criminal act with a single criminal intent. Id. at 704.
The application of this analysis in Hayes demonstrates its intended usage. There, the defendant and two accomplices entered the victim‘s residence and stole a number of things. Apparently one or more of the perpetrators was armed. They took from the victim computers, cell phones, a beeper, a camera, and keys to a motor vehicle. Although the opinion is not specific on this point, it is a reasonable inference that the items were taken from various places within the residence. As the perpetrators exited the home, the offense of robbery was complete. Then, having left the residence, defendant went to a vehicle parked outside and used the keys to enter and drive it away. That was the second offense of grand theft. As the court explained:
“the taking of the items from inside the residence occurred at a different time and a different place than the taking of the motor vehicle. Although there was only a single victim in this case, and there were no intervening acts, we find that the robbery of various items from inside the residence was sufficiently separate in time, place and circumstances from Hayes’ theft of the motor vehicle parked outside the victim‘s residence to constitute distinct and independent criminal acts.”
The spatial and temporal separation in Hayes has no logical counterpart here. The two Hayes crimes were divided between the acts of robbery inside the home (including its multiple roоms) and the act of grand theft in later entering the parked vehicle and driving it away. In contrast in today‘s case, all the acts were of a single character (lewd and lascivious touching and exhibition) and all occurred within a few minutes, and all within the home.
The movement from the living room to the bedroom in this case was inconsequential, much like the Hayes robbers moving thrоughout the residence to discover articles worth stealing. Afterwards in Hayes, when defendant was outside the house and decided to take the vehicle, he necessarily had to perform several acts distinctively different from his robbery in the house: locate the vehicle, use the key to enter, start the engine and drive it away. His acts outside the house were unlikе those in ransacking the house to locate valuables.
In this case, all of the acts charged were of a single kind, associated with lewd and lascivious conduct and without significant change in time or locale. What we actually face in this case is “one continuous criminal act with a single criminal intent” during which the two people moved from the living room to the bedroom without essential interruption of their conduct. It simply will not do to use a stop watch and
I would follow our precedents and reverse the multiple convictions in this case.