REYAND SHAW, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the failure to instruct the jury that the State must prove the defendant acted in a lewd or lascivious manner when forcing or enticing a victim to touch the defendant constitutes reversible error.
[1] A conviction for Lewd or Lascivious Molestation under Florida Statute § 800.04(5) requires proof that the defendant acted in a lewd or lascivious manner when forcing or e…
[2] A contemporaneous objection to a jury instruction that omits an essential element of the charged offense preserves the issue for appeal.
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Join FLexlaw to unlock all legal intelligenceReyand Shaw was convicted of Lewd or Lascivious Exhibition and Lewd or Lascivious Molestation. Shaw appealed, arguing the jury instruction for molesta…
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Following a jury trial, Reyand Shaw was convicted of and sentenced for Lewd or Lascivious Exhibition on a Child Under Sixteen, and Lewd or Lascivious Molestation on a Child Under Twelve by a Person Eighteen Years or Older. Reyand Shaw appeals both convictions and sentences. We affirm without further discussion his conviction and sentence for Lewd or Lascivious Exhibition (Count One); for the reasons that follow, however, we reverse the conviction and sentence on the charge of Lewd or Lascivious Molestation (Count Two) and remand for a new trial on that count.
Shaw was charged in a two-count information. Count Two alleged that Shaw, “being a person of the age of eighteen (18) years or older, did unlawfully and intentionally force or entice J.F. (A MINOR), a person less than twelve (12) years of age, to touch the breasts, genitals, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks of said defendant, in violation of 800.04(5)....”
Sections 800.04(5)(a) and (b), Florida Statutes (2006) provide:
(5) Lewd or lascivious molestation.—
(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony, punishable as provided in s. 775.082(3)(a)4.
It is thus clear that a defendant who intentionally touches a victim in an area of the body prohibited by the statute, and does so in a lewd or lascivious manner, commits the offense of lewd or lascivious molestation. Perhaps less clear (at least at the time of the trial in 2011) is whether the statute requires a defendant act in a lewd or lascivious manner when he forces or entices a victim to touch the defendant in an area of the body prohibited by statute.
At the time of the trial, the standard jury instruction for lewd or lascivious molestation provided in pertinent part:
11.10(c) LEWD OR LASCIVIOUS MOLESTATION
§ 800.04(5), Fla. Stat.
To prove the crime of Lewd or Lascivious Molestation, the State must prove the following three elements beyond a reasonable doubt:
1.(Victim) was less than 12 years of age.
Give 2a or 2b as applicable.
2. (Defendant),
a. intentionally in a lewd or lascivious manner, touched the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (victim).
b. intentionally [forced] [enticed] (victim) to touch the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (defendant).
3. (Defendant) was 18 years of age or older at the time of the offense.
(Emphasis added.)
As can be seen, where the crime charged involves the defendant touching the victim, the 2011 standard jury instruc*304tion required proof that the defendant acted in a lewd or lascivious manner. By contrast, where the charge involves the defendant forcing or enticing the victim to touch the defendant, the 2011 standard jury instruction required no such proof.
At the charge conference, Shaw objected to the standard jury instruction because it did not require, as an essential element, that the State prove that the defendant acted in a lewd or lascivious manner when he forced or enticed the victim to touch the defendant. Defense counsel argued that the language of the statute (“or forces or entices a person ... to so touch the perpetrator”) requires proof that the defendant, in the forcing or enticing, acted in a lewd or lascivious manner.
The trial court overruled Shaw’s objection and charged the jury as follows:
To prove the crime of lewd and lascivious molestation, the State must prove the following three elements beyond a reasonable doubt:
[Number one], J.F. (A Minor) was less than 12 years of age;
Number two, Reyand Christopher Shaw intentionally forced or enticed J.F. (A Minor) to touch the genitals, genital area, clothing covering the genitals or clothing covering the genital area of Re-yand Christopher Shaw; and,
Number three, Reyand Christopher Shaw was 18 years of age or older at the time of the offense.
In 2013, while this case was on appeal, the Florida Supreme Court amended this standard jury instruction 1 addressing the very infirmity raised by Shaw during the charge conference. The amended standard jury instruction, as applied to the allegations in this case, now reads in relevant part:
11.10(c) LEWD OR LASCIVIOUS MOLESTATION
§ 800.04(5), Fla. Stat.
To prove the crime of Lewd or Lascivious Molestation, the State must prove the following three elements beyond a reasonable doubt:
1. (Victim) was less than 12 years of age.
2. (Defendant), in a lewd or lascivious manner, intentionally [forced] [enticed] (victim) to touch the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (defendant).
3. (Defendant) was 18 years of age or older at the time of the offense.
(Emphasis added to amendatory language.).
The State argues on appeal that Shaw did not adequately preserve this error, and that an unpreserved objection to a missing element in an instruction is not fundamental error where that element relates to an undisputed issue at trial. See Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008).2 While the proposition of law is correct, the State’s premise is not. A reading of the transcript of the charge conference establishes that Shaw properly *305and contemporaneously objected to the standard jury instruction, asserting that it failed to include any requirement that the State prove Shaw acted in a lewd or lascivious manner. Because Shaw in fact made a contemporaneous objection and adequately preserved the error, the failure to instruct on this essential element requires reversal and a new trial on the charge of Lewd or Lascivious Molestation (Count Two). See State v. Delva, 575 So.2d 643 (Fla.1991).
Affirmed in part, reversed in part, and remanded for a new trial on Count Two of the information.
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Keum SAN YI v. State, 128 So. 3d 186 (Fla. 5th DCA 2013)…ious manner.”3 Thus, the State was not required to prove that any touching was done with a lewd or lascivious intent. We conclude that the omission of an essential element of the offense constituted fundamental error in this case. Cf. Shaw v. State, 118 So. 3d 302, 305 (Fla. 3d DCA 2013) (holding that trial court’s failure to instruct jury that offense of lewd or lascivious molestation required that defendant acted in a lewd or lascivious manner required reversal). While conceding that the jury instruction g…
Authorities Cited
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)
- In re Standard Jury Instructions IN Crim. Cases-Report NO. 2012-01, 109 So. 3d 721 (Fla. 2013)