Shaara v. StateShaara v. State
Brian Shaara appeals a final judgment adjudicating him guilty of one count of grand theft of an automobile, one count of kidnapping with a weapon, three counts of sexual battery while armed with a weapon, and one count of attempted robbery with a deadly weapon. Appellant raises three points. We find no error in the points concerning the prosecutor‘s argument and the sufficiency of the evidence to prove grand theft. The state properly concedes error regarding the adjudicаtion of guilt of three counts of sexual battery with a deadly weapon, charges not made by the amended information; but we agree with the state that the trial court, pursuant to
The amended information charged Shaara with one count of grand theft of an automobile (
The evidence proved that Shaara got into a car in which the victim was sitting, drove the car to a wooded area, held the cutting edge of a knife to her wrist and told her that “this is a rape,” ordered her to remove her clothes, and then forced her to have sexual intercourse with him at least three times. At some point during the incident, Shaara put the knife away, but he threatened to get the knife out again each time the victim resisted. For reasons not explained nor made apparent in the record, the jury instructions on the sexual battery
Shaara‘s first point complains that improper remarks made by the prosecutor during closing argument deprived him of his right to a fair trial by an impartial jury. While some of these remarks, discussed below, were undoubtedly improper, none of them amounted to reversible error.
Appellant argues the impropriety of the prosecutor‘s comments that the victim cried during cross-examination when she recalled the events that took place. However, the record indicates that the prosecutor‘s comments were invited by the defense‘s previous statements during argument that the victim did not cry when she recalled certain matters, and thus are not grounds for reversal. Clark v. State, 363 So.2d 331, 335 (Fla. 1978).
Shaara next complains that the prosecutor‘s comment to the jury to consider what the victim had gone through and was now going through amounted to an improper “golden rule” argument. We disagree; the prosecutor did not ask the jurors to place themselves in the victim‘s position, Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), nor to think how they would feel if the crime happened to them, Lucas v. State, 335 So.2d 566 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla. 1980). See also Bullard v. State, 436 So.2d 962 (Fla. 3d DCA 1983), rev. denied, 446 So.2d 100 (Fla. 1984).
Shaara complains of the following comments by the prosecutor:
It would appear that the only thing he forgot maybe in the whole story is at the end of the time he gave her a hundred dollars or something for a good time. He left that part out of the story —
We agree under the circumstances shown by the record that these comments were improper because they could have unfairly and adversely affected the jury‘s impartiality and disparaged his defense of consent. Howеver, we do not consider the comment reversible error, because the trial court sustained the defense objection thereto and instructed the prosecutor to confine his argument to the evidence. Shaara did not move to strike that comment from the record and request a curative instruction when he made his objection and motion for mistrial. Palmer v. State, 486 So.2d 22, 23 (Fla. 1st DCA 1986). See also Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982). We also agree that the prosecutor‘s comment that the victim was asking the jury for justice was similarly improper. Harper v. State, supra; Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983). However, again Shaara did not move to strike and request any curative instruction when he made his objection and motion for mistrial based on that comment. Neither of these two comments, taken in context, was sufficiently grievous that the prejudice attributable to them could not have bеen cured by striking the remarks with curative instructions at the time.
Appellant also argues that, after the prosecutor had shown that Shaara had prior criminal convictions, the trial court erred in allowing the prosecutor to identify and comment to the jury on the nature of those prior convictions. This was not error under the particular circumstances in this case, however. Where a defendant takes the stand and thereby places his credibility in issue, it is proper for the prosecutor to suggest that the jury may consider the defendant‘s previous convictions in determining his credibility. Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987); Wilkins v. State, 383 So.2d 742 (Fla. 4th DCA 1980). Normally, the prosecutor is allowed to inquire only as to the number of prior convictions and is not permitted to ask the defendant to identify the particular crimes for which he was сonvicted. Johnson v. State, 380 So.2d 1024 (Fla. 1979). But where, as in this case, the defendant has volunteered information about the nature of those crimes on his redirect examination, his testimony is to be considered and weighed the same as any other witness, and argument directed at what the defendant says and does is entirely appropriate. See Johnson v. State, supra (no due process violation where the prosecutor followеd the correct procedure in cross-examining the defendant about his prior convictions, and the defendant‘s own attorney asked him on redirect examination to identify the offenses for which he had been convicted); Mead v. State, 86 So.2d 773 (Fla. 1956) (once a defendant elects to testify, his testimony is to be weighed the same as any other witness, and argument directed at what he says and does is justified).
Shaara next contends that the circuit court erred in convicting him of sexual battery with a deadly weapon, an offense defined in
The parties completely disagree, howеver, as to the proper remedy to correct this error. Shaara contends that we must reverse his convictions on those three counts and remand for a new trial. The state contends that we have authority under
When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.
In Gould v. State, 577 So.2d 1302 (Fla. 1991), the supreme court recently construed this statute as expressly and unambiguously applying only to “a lеsser offense necessarily included in the offense charged” (category one lesser-included offense) and rejected the argument that the statute applies equally to permissive lesser-included offenses that are supported by the accusatory pleadings and evidence adduced at trial (category two lesser-included offense).3 In Gould, the defendant was charged with sexual battеry on a victim physically helpless to resist under
For
section 794.011(5) sexual battery to be a necessarily included offense of the major offense ofsection 794.011(4)(a) sexual battery, all the elements ofsection 794.011(5) must also be the elements ofsection 794.011(4)(a) . Where “the burden of proof of the major crime cannot be discharged [] without proving the lesser crime as an essential link in the chain of evidence,” the lesser offense is a necessarily included lesser offense of the major offense. Brown v. State, 206 So.2d 377, 382 (Fla. 1968).
Since Shaara‘s appeal involves offenses of sexual battery under
We hold that Shaara‘s convictions for sexual battery with a deadly weapon under
A person who commits sexual battery upon a person 12 years of age or older, without that person‘s consent, and in the process thereof uses or thrеatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury is guilty of a life felony... .
(Emphasis added).
A person who commits sexual battery upon a person 12 years of age or older, without that person‘s consent, under any of the following circumstances is guilty of a felony of the first degree ...
* * * * * *
(b) When the offender coerces the victim to submit by threatening to use force or violencе likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute the threat.
(Emphasis added). According to the Florida Standard Jury Instructions in Criminal Cases 117-119(a) (1987),
1. (Victim) was twelve years of age or older.
2. a. [(Defendant) committed an act [upon] [with] the (victim) in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)].]
b. [(Defendant) committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.] * * * * * *
4. The act was done without the consent of (victim).
The only elements of the two offenses not stated in identical language are the third elements. The third element of a
3. (Defendant) in the process
a. [used or threatened to use a deadly weapon.]
b. [used actual physical force likely to cause serious personal injury.]
(Emphasis added). The third element of a
3. b. [(Defendant) coerced (victim) to submit by threatening to use force or violence likely to cause serious personal injury and (victim) reasonably believed that (defendant) had the present ability to execute the threat.]4
(Emphasis added). Comparing the third elements of each offense, it is evident that proof of the use or threatened use of a deadly weapon (the criminal conduct of which Shaara was found guilty by the jury verdict) or the use of physical force likely to cause serious personal injury under
Shaara‘s third point contends that his conviction for grand theft of an automobile must be reversed because the state failed to present evidence of value. This argument is predicated on the fact that the amended information alleged a certain value of the stolen automobile and thus placed vаlue in issue at trial. We find no merit to this contention.
We also reject Shaara‘s contention that this error in the information requires retrial of this count. He has not demonstrated that he suffered any prejudice from the court‘s correction of the error during trial, and the amended information clearly informed Shaara that the state was charging him with grand theft of an automobile in count I. See State v. Dilworth, 397 So.2d 292, 294 (Fla. 1981) (information is legally sufficient “if it expresses the elements of the offense charged in such a way that the accused is neither misled or embarrassed in the preparation of his defense, nоr exposed to double jeopardy“).
The convictions of counts I, II, and VI are without error and are affirmed. The convictions of counts III, IV, and V are reversed and the cause remanded with directions to enter convictions under each of those counts for the charged offense of sexual battery with threats to use force likely to cause serious personal injury undеr
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
BOOTH and WOLF, JJ., concur.
ON MOTION FOR REHEARING
Appellant‘s motion for rehearing raises several issues. The motion is denied on all grounds alleged therein except one.
Appellant contends that our opinion erroneously recites that he was sentenced as a “habitual violent felony offender,” whereas the judgment and sentence recite only that he is being sentenced as a “habitual offender.” Upon further review of the record, we note that while the state sought sentencing as a habitual violent felony offender, the court stated during the sentencing hearing that appellant was being sentenced as a habitual felony offender. No mention is made of the state‘s request for sentencing as a violent felony offender. Nor is there any mention in the transcript of the hearing or in the judgment and sentence that appellant is required to serve any minimum mandatory imprisonment, which would be the case if he were sentenced as a habitual violent felony offender. Accordingly, the motion for rehearing is granted in part, and the word “violent” is hereby struck from the reference to “habitual violent felony offender” in our opinion.
BOOTH and WOLF, JJ., concur.