JOHN ARTHUR JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that an erroneous jury instruction on a disputed element of a crime, even without a contemporaneous objection, can constitute fundamental error.
[1] A jury instruction that defines "union" as an alternative to penetration and meaning "coming into contact" is erroneous when applied to a charge of sexual battery based o…
[2] The absence of a contemporaneous objection to an erroneous jury instruction regarding a disputed element of an offense does not waive the issue on appeal.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of sexual battery based on digital penetration, but the jury received an erroneous instruction defining 'union' as contact…
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COBB, Judge.
The defendant below, John Arthur Johnson, was convicted of two counts of sexual battery and one of robbery. The second count of sexual battery was based on digital penetration of the victim’s anus. The victim gave rather equivocal testimony that Johnson “briefly” penetrated her anus with his finger, but, because of her movement, “wasn’t very successful ... at actual penetration.” Johnson, testifying in his own behalf, denied any anal penetration, saying that he “only felt her butt.”
The problem lies in the fact that the trial judge instructed the jury in respect to this charge that “union is an alternative to penetration and means coming into contact.” The appellant argues, and the state agrees, that “union is not applicable to a charge based on digital penetration,” and that the touching of finger to anus is not sexual battery. See Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989).
The state, although acknowledging the erroneous instruction, points out that there was no contemporaneous objection to the instruction at trial and maintains that it did not constitute fundamental error. We cannot agree with the state’s argument. The absence of objection does not waive misstatement of a disputed element of the offense charged. State v. Delva, 575 So. 2d 643 (Fla.1991); State v. Jones, 377 So. 2d 1163 (Fla.1979); Crump v. State, 629 So. 2d 231 (Fla. 5th DCA 1993). Given the erroneous instruction to the jury, it necessarily should have convicted Johnson of the second count of sexual battery even if it had believed his version of the incident.
We do agree with the state that there is no merit in the appellant’s contention that he was entitled to a mistrial because of prejudicial testimony by a police officer at trial. Accordingly, we affirm Johnson’s convictions for sexual battery under Count I (penile penetration) and for robbery under Count III. We reverse his conviction for sexual battery under Count II (digital penetration) and remand for a new trial on that count.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HARRIS, C.J., and GOSHORN, J., concur.
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Eston E. Anderson v. State, 780 So. 2d 1012 (Fla. 4th DCA 2001)…1 So. 2d 771, 772 (Fla. 5th DCA 2000) (quoting Ward v. State, 655 So. 2d 1290 (Fla. 5th DCA 1995)). However, only where the erroneous instruction pertains to a disputed element of the crime will the error be deemed fundamental. See Johnson v. State, 632 So. 2d 1062 (Fla. 5th DCA 1994)(citing Jones ); Williams v. State, 400 So. 2d 542, 545 (Fla. 3d DCA 1981). It follows, therefore, that fundamental error occurred in this case when the trial court instructed the jury on a non-existent element of the crime which…
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Ward v. State, 655 So. 2d 1290 (Fla. 5th DCA 1995)…is fundamental error where the error relates to the elements of the criminal offense. See State v. Delva, 575 So. 2d 643 (Fla.1991); Brumbley v. State, 453 So. 2d 381 (Fla.1984); Jones v. State, 656 So. 2d 489 (Fla. 4th DCA 1995); Johnson v. State, 632 So. 2d 1062 (Fla. 5th DCA 1994). REVERSED and REMANDED. PETERSON and THOMPSON, JJ., concur. . The court specifically referred in the instruction to “felony murder in the second degree.” . Ward asked for instructions on attempted first-degree felony murder a…
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King v. State, 800 So. 2d 734 (Fla. 5th DCA 2001)…rder for the error in the instruction to be fundamental, it must pertain to an element of the crime that is a disputed issue in the case. Duncan v. State, 703 So. 2d 1069 (Fla. 5th DCA 1997), rev. denied, 718 So. 2d 167 (Fla.1998); Johnson v. State, 632 So. 2d 1062 (Fla. 5th DCA 1994); Delva. Once the error is deemed fundamental, it may be reviewed on appeal. In order to determine whether fundamental error was committed in the instant case, we next analyze the instruction to determine whether the omission per…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- State v. Wiley Jones, Jr., 377 So. 2d 1163 (Fla. 1979)
- Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989)
- Teel v. David J. Samara, M.D., 629 So. 2d 231 (Fla. 1st DCA 1993)