Sherrer v. StateSherrer v. State
Appellant, Cowboy Sherrer, was convicted of lewd and lascivious molestation pursuant to
Contrary to the trial court‘s ruling, unnatural and lasсivious act is a permissive lesser-included offense of lewd and lascivious molestation. See, e.g., Williams v. State, 627 So.2d 1279 (Fla. 1st DCA 1993); Lowman v. Moore, 744 So.2d 1210 (Fla. 2d DCA 1999); Firkey v. State, 557 So.2d 582 (Fla. 4th DCA 1989) (on reh‘g); Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses § 800.04 (July 1998). The state claims this authority is no longer applicablе, because section 800.04 was significantly amended in 1999, and is intended tо encompass virtually all sexual crimes against children aside from sexual battery, and thus section 800.02 should not apply when the victim is a child. This argument has no support in the text of the statutes. Section 800.04 addressed sex acts against children before 1999 and the сourts still concluded that section 800.02 was a lesser-included offense of section 800.04. The information against Sherrer and the prоof against him charged and proved a violation of seсtion 800.02, and thus the trial court erred in failing to give the requested instructiоn.
The trial court‘s error was nevertheless harmless, becausе the court did instruct the jury on simple battery as a lesser-included оffense.1See Pryor v. State, 755 So.2d 155 (Fla. 4th DCA 2000). See also State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978) (deciding that when a defendant is charged with offense “A” аnd the jury is instructed on “A” and “B,” a lesser-included offense one step removed from “A,” but is not instructed on “C,” which is two steps removed, and the jury convicts the accused of “A,” then failure to instruct on “C” is harmless). The schedule of offenses shows there are no category-1, necessary lesser-included offenses of lewd and lasсivious assault, and there are four category-2, permissive lesser-included offenses: attempt, assault, battery, and unnatural and lascivious act. Lewd and lascivious molestation is a first-degrеe felony, simple battery is a first-degree misdemeanor, and unnаtural and lascivious act is a second-degree misdemeаnor. The jury could have “pardoned” Sherrer by convicting him of misdеmeanor battery based upon evidence showing that he had intentionally touched B.O. against her will, but it instead convicted him of first-degree felony molestation.
The determination of harmful error regarding omitted jury instructions on a lesser offense is not “merely а matter of number or degree.” Instead, it turns in part upon whether “thе jury is given a fair opportunity to exercise its inherent `pardon’ power by returning a verdict of
guilty as to” an offense betweеn the primary offense and the omitted offense.
Fernandez v. State, 570 So.2d 1008, 1011 (Fla. 2d DCA 1990) (citations omitted). Battery provided the intervening step between molestation and unnatural act, and thus the court‘s failure to instruct on unnatural act was, under the circumstances, harmless.
AFFIRMED.
ERVIN, KAHN and BENTON, JJ., concur.