LESLIE WAYNE OSTRUM, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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The court held that the trial court did not err in admitting a remark as harmless error and in refusing to instruct the jury on attempted sexual battery when the evidence only supported completed offenses.
[1] A remark made by a defendant, even if inadmissible under similar fact evidence rules, may be deemed harmless error when overwhelming evidence supports the convictions.
[2] A trial court is not required to instruct a jury on an attempted offense when the victims testify to the completed offense and the defendant denies any involvement, absen…
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of capital sexual battery and indecent assault. He appealed the admission of a remark made to his sister and the denial of a j…
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PER CURIAM.
Defendant appeals his convictions for capital sexual battery and indecent assault. We affirm.
Defendant first argues that the trial court erred in admitting a remark he made to one of his sisters when he was confronted by his mother about his sexual behavior. The remark, which neither admitted any crimes nor shed any relevance on any crimes, was admitted as similar fact evidence under Williams v. State, 110 So. 2d 654 (Fla.1959). Although this remark was not admissible under Williams, it was nothing more than a sarcastic remark, and harmless, particularly in light of the overwhelming evidence of defendant’s sexual crimes with this victim as well as others.
Defendant also argues that the trial court erroneously denied his request for an instruction on the lesser included offense of attempted sexual battery, relying on Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989), rev. denied, 574 So. 2d 140 (Fla.1990).
In Wilson v. State, 635 So. 2d 16 (Fla.1994), the Florida Supreme Court had before it the following certified question:
WHERE THE VICTIMS TESTIFY THAT THE DEFENDANT COMPLETED THE CHARGED OFFENSES OF CAPITAL SEXUAL BATTERY OF A VICTIM UNDER 12 AND LEWD AND LASCIVIOUS ASSAULT, AND THE DEFENDANT TOTALLY DENIES COMMISSION OF ANY OFFENSE, IS A TRIAL COURT REQUIRED TO INSTRUCT A JURY ON ATTEMPT IF REQUESTED TO DO SO BY THE DEFENDANT?
The court answered the question in the negative, citing Florida Rule of Criminal Procedure 3.510, which says that the jury shall not be instructed on attempt “if there is not evidence to support such attempt and the only evidence proves the completed offense.” The court also disapproved any language in Firkey which could have been interpreted to the contrary.
In the present case, as in Wilson, there was no evidence of attempted offenses. The only evidence was of completed offenses, and the defendant denied committing them. The trial court did not therefore err in refusing to instruct on attempt.
Affirmed.
ANSTEAD, KLEIN and STEVENSON, JJ., concur.
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Ostrum v. Dep't of Health & Rehabilitative Servs. of the State of Fla., 663 So. 2d 1359 (Fla. 4th DCA 1995)…r done without an opinion. Appellant has been convicted of two counts of capital sexual battery on his own minor children and sentenced to two life terms, with minimum mandatory terms of 25 years on each count to run consecutively. Ostrwm v. State, 638 So. 2d 594 (Fla. 4th DCA 1994). The earliest date on which he could be released from prison is well after these children will reach their majority. Moreover, an express provision of his sentences requires that he have no contact with his children while he is s…
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Campana v. State, 765 So. 2d 58 (Fla. 4th DCA 2000)…rial court correctly denied appellant’s request to instruct the jury on the lesser included offense of attempted trafficking in cocaine, since the only evidence in the case proved a “completed offense.” Fla. R.Crim. P. 3.510(a); see Ostrum v. State, 638 So. 2d 594 (Fla. 4th DCA 1994); Henry v. State, 445 So. 2d 707 (Fla. 4th DCA 1984); Lunsford v. State, 426 So. 2d 1178 (Fla. 5th DCA 1983). Appellant showed the undercover officer two bundles of money and made a number of incriminating statements, including…
Authorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989)
- Wilson v. State, 635 So. 2d 16 (Fla. 1994)