FRANK WALTER COOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Cook appeals his convictions for five counts of committing a lewd, lascivious, or indecent act upon a child under 16 and one count of committing a lewd or lascivious act in the presence of a child under 16. The court reversed the five convictions due to the trial court's erroneous denial of a jury instruction on battery as a lesser included offense, but affirmed the conviction on the sixth count.
1) The trial court erred in denying the jury instruction on battery as a lesser included offense where the facts and evidence satisfied all elements of battery; 2) The trial court properly excluded the hearsay evidence as irrelevant where Cook presented no evidence the victim was influenced by her mother to testify; and 3) No mistrial was warranted because the prosecutor's references to uncharged incidents that had been testified to at trial caused no prejudice.
[1] A defendant is entitled to a jury instruction on battery as a lesser included offense of committing a lewd, lascivious, or indecent act upon a child under the age of 16 y…
[2] Hearsay evidence is inadmissible as irrelevant when the defendant fails to show the victim was influenced by the declarant to testify about the defendant's conduct.
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Join FLexlaw to unlock all legal intelligence“A defendant is entitled to receive a jury instruction on battery as a lesser included offense of committing a lewd, lascivious, or indecent act upon a child under the age of 16 years where, as here, the facts alleged in the information and the evidence presented at trial satisfy all of the elements of the crime of battery.”
Establishes the standard for when a defendant is entitled to a lesser included offense instruction.
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Join FLexlaw to unlock all legal intelligenceCook was convicted by jury on five counts of committing a lewd, lascivious, or indecent act upon a child under 16 and one count of committing a lewd o…
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PER CURIAM.
Frank Cook appeals his judgments and sentences which were imposed by the trial court after a jury found him guilty on five counts of committing a lewd, lascivious, or indecent act upon a child under the age of 16 years, and one count of committing a lewd or lascivious act in the presence of a child under the age of 16 years.1 We affirm in part, reverse in part, and remand for further proceedings.
First, with regard to his five convictions for committing a lewd, lascivious, or indecent act upon a child under the age of 16 years, Mr. Cook contends that the trial court erred in denying his request for a jury instruction on the lesser included offense of battery.
We agree. A defendant is entitled to receive a jury instruction on battery as a lesser included offense of committing a lewd, lascivious, or indecent act upon a child under the age of 16 years where, as here, the facts alleged in the information and the evidence presented at trial satisfy all of the elements of the crime of battery. See Biles v. State, 700 So. 2d 166, 167 (Fla. 4th DCA 1997); see also Wimberly v. State, 697 So. 2d 1272, 1273 (Fla. 4th DCA 1997); Caulder v. State, 500 So. 2d 1362, 1363 (Fla. 5th DCA 1986), rev. denied, 511 So. 2d 297 (Fla. 1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988).
Accordingly, we must reverse Mr. Cook’s judgments and sentences on the five charges of committing a lewd, lascivious, or indecent act upon a child under the age of 16 years, and remand this matter to the trial court for a new trial on these charges.
Second, with regard to his conviction for committing a lewd or lascivious act in the presence of a child under the age of 16 years, Mr. Cook argues that the trial court erred in refusing to allow him to introduce evidence concerning statements made to him by the victim’s mother. Mr. Cook sought to submit hearsay evidence indicating that, prior to the filing of the instant charges, the victim’s mother had threatened to file criminal charges against Mr. Cook if he sought to obtain custody of the parties’ daughter (the victim’s half-sister) in a paternity action pending between the parties.
The trial court properly excluded this hearsay evidence as being irrelevant because Mr. Cook failed to submit any evidence indicating that the victim had been influenced in any way by her mother to testify about Mr. Cook’s repeated criminal conduct. See Akers v. State, 352 So. 2d 97 (Fla. 4th DCA 1977).
Accordingly, we affirm this ruling.
Mr. Cook further contends that the trial court erred in denying his motion for mistrial which was made during the prosecutor’s closing argument. Mr. Cook maintains that it was necessary to declare a mistrial because the prosecutor improperly referred to additional uncharged crimes which he had committed against the victim. We again affirm the trial court’s ruling. Although the prosecutor made reference to numerous uncharged incidents of sexual abuse which Mr. Cook had perpetrated upon the victim, those incidents had been testified to by the victim during trial. Accordingly, Mr. Cook suffered no prejudice as a result of the prosecutor’s comment. See § 924.051(3), Fla. Stat. (1997).
We affirm Mr. Cook’s judgment and sentence of twenty years’ imprisonment on the charge of committing a lewd or lascivious act in the presence of a child under the age of 16 years. We reverse his judgments and sentences on the five counts of committing a lewd, lascivious, or indecent act upon a child under the age of 16 years. We remand this matter to the trial court for new trial.
AFFIRMED in part; REVERSED in part; and REMANDED.
GRIFFIN, C.J., W. SHARP, and ANTOON, JJ., concur. . §§ 800.04(1), 800.04(4), Fla. Stat. (1997).
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Rosen v. State, 940 So. 2d 1155 (Fla. 5th DCA 2006)…icts. Id. Also, Rosen properly insisted on the inclusion of battery as a lesser included offense of the lewd and lascivious molestation charges and, in closing argument, reminded the jury they could convict him of battery. See, e.g., Cook v. State, 736 So. 2d 739, 740 (Fla. 5th DCA 1999) (holding defendant was “entitled to receive a jury instruction on battery as a lesser included offense ... where ... the facts alleged in the information and the evidence presented at trial satisfied] all of the elements of…
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Cowboy Sherrer v. State, 898 So. 2d 260 (Fla. 1st DCA 2005)…er the circumstances, harmless. AFFIRMED. ERVIN, KAHN and BENTON, JJ., concur. . First-degree misdemeanor battery is a lesser-included offense of lewd and lascivious molestation. Belser v. State, 854 So. 2d 223 (Fla. 1st DCA 2003); Cook v. State, 736 So. 2d 739 (Fla. 5th DCA 1999); Biles v. State, 700 So. 2d 166 (Fla. 4th DCA 1997).…
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Jackson v. State, 920 So. 2d 737 (Fla. 5th DCA 2006)…ruction on battery as a lesser included offense of lewd and lascivious battery if the count alleges all the elements of battery and the evidence supports all the elements of that offense. State v. Von Deck, 607 So. 2d 1388 (Fla.1992); Cook v. State, 736 So. 2d 739 (Fla. 5th DCA 1999); Biles v. State, 700 So. 2d 166 (Fla. 4th DCA 1997). While, as the State points out, Count II did not specifically allege that the defendant’s sexual activity with the minor victim was un-consented to, it did allege that the def…
Authorities Cited
- Santiago v. United States, 484 U.S. 1068 (U.S. 1988)
- Glenn v. Florida, 484 U.S. 1068 (U.S. 1988)
- Caulder v. State, 500 So. 2d 1362 (Fla. 5th DCA 1986)
- Wimberly v. State, 697 So. 2d 1272 (Fla. 4th DCA 1997)
- Biles v. State, 700 So. 2d 166 (Fla. 4th DCA 1997)
- Akers v. State, 352 So. 2d 97 (Fla. 4th DCA 1977)