COWBOY SHERRER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cowboy Sherrer was convicted of lewd and lascivious molestation. He appealed claiming the trial court erred by refusing to instruct the jury on the lesser-included offense of unnatural and lascivious act, and that his trial counsel was ineffective for failing to object to hearsay testimony. The appellate court affirmed the conviction, finding the instructional error harmless because the jury was given an intervening lesser-included offense instruction on simple battery.
The trial court erred in refusing to instruct on unnatural and lascivious act as a permissive lesser-included offense, but the error was harmless because the jury received an instruction on simple battery, which provided an intervening step between the primary offense and the omitted offense. The court affirmed the ineffective assistance of counsel issue without comment.
[1] Unnatural and lascivious act is a permissive lesser-included offense of lewd and lascivious molestation.
[2] The amendment of a statute does not automatically render prior case law regarding lesser-included offenses inapplicable if the statutory text does not support such a conc…
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Join FLexlaw to unlock all legal intelligence“Contrary to the trial court's ruling, unnatural and lascivious act is a permissive lesser-included offense of lewd and lascivious molestation.”
Establishes the primary legal holding regarding the relationship between the two offenses and overrules the trial court's contrary determination.
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Join FLexlaw to unlock all legal intelligenceSherrer was charged with and convicted of lewd and lascivious molestation under Florida Statute section 800.04(5). The victim was a child referred to …
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PER CURIAM.
Appellant, Cowboy Sherrer, was convicted of lewd and lascivious molestation pursuant to section 800.04(5), Florida Statutes (2002). He contends on appeal that (I) the trial court erred by refusing to give a jury instruction on the lesser-included offense of unnatural and' lascivious act, pursuant to section '800.02, Florida Statutes (2002), and (II) trial counsel provided ineffective assistance on the face of the record by failing to object to the testimony of the child victim’s mother on the basis of hearsay under section 90.803(23), Florida Statutes (2002). We conclude that the error in Issue I was harmless, and affirm Issue II without comment.
Contrary to the trial court’s ruling, unnatural and lascivious 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 J.998).
The state claims this authority is no longer applicable, because section 800.04 was significantly amended in 1999, and is intended to 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 courts still concluded that section 800.02 was a lesser-included offense of section 800.04. The information against Sherrer and the proof against him charged and proved a violation of section 800.02, and thus the trial court erred in failing to give the requested instruction.
The trial court’s error was nevertheless harmless, because the court did instruct the jury on simple battery as a lesser-included offense.1 See 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” and 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 lascivious assault, and there are four eategory-2, permissive lesser-included offenses: attempt, assault, battery, and unnatural and lascivious act. Lewd and lascivious molestation is a first-degree felony, simple battery is a first-degree misdemeanor, and unnatural and lascivious act is a second-degree misdemeanor.
The jury could have “pardoned” Sherrer by convicting him of misdemeanor 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 a matter of number or degree.” Instead, it turns in part upon whether “the jury is given a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilty as to” an offense between 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. . 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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Wong v. State, 212 So. 3d 351 (Fla. 2017)…d 388, 391 (Fla. 5th DCA 2015) (lewd or lascivious battery involving digital penetration); Horn, 120 So. 3d at 2 (lewd or lascivious molestation involving the defendant’s placement of his head between the victim’s exposed breasts); Sherrer v. State, 898 So. 2d 260, 261 (Fla. 1st DCA 2005) (lewd or lascivious molestation involving touching); see also Schuster v. State, 17 So. 3d 304, 304 (Fla. 4th DCA 2009) (affirming conviction of unnatural and lascivious act as a lesser-ineluded offense of a charge of lewd o…
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Deangelo S. Horn v. State, 120 So. 3d 1 (Fla. 1st DCA 2012)…rged offense. Clark v. State, 43 So. 3d 814, 817 (Fla. 1st DCA 2010). Along with attempt, assault, and battery, the offense of unnatural and lascivious act is a permissive lesser-included offense of lewd or lascivious molestation. Sherrer v. State, 898 So. 2d 260, 261 (Fla. 1st DCA 2005); Fla. Std. Jury Instr. (Crim.) 11.8. In Williams v. State, 627 So. 2d 1279 (Fla. 1st DCA 1993), this Court found error in the refusal to instruct the jury on this offense under circumstances not materially distinguishable fr…
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Italo Funiciello v. State, 179 So. 3d 388 (Fla. 5th DCA 2015)…ecifically criminalized under the law” since the Williams court required the issuance of the permissive lesser-included unnatural and lascivious act instruction in a lewd or lascivious assault ease. In another First District case, Sherrer v. State, 898 So. 2d 260 (Fla. 1st DCA 2005), the defendant was convicted of lewd or lascivious molestation. On appeal, he contended that the trial court erred by refusing to issue a jury instruction on the lesser-included offense of unnatural and lascivious act. The First…
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
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989)
- Williams v. State, 627 So. 2d 1279 (Fla. 1st DCA 1993)
- Elio Frank Fernandez, Jr. v. State, 570 So. 2d 1008 (Fla. 2d DCA 1990)
- Pryor v. State, 755 So. 2d 155 (Fla. 4th DCA 2000)
- Biles v. State, 700 So. 2d 166 (Fla. 4th DCA 1997)
- Belser v. State, 854 So. 2d 223 (Fla. 1st DCA 2003)
- Cook v. State, 736 So. 2d 739 (Fla. 5th DCA 1999)
- Lowman v. Moore, 744 So. 2d 1210 (Fla. 2d DCA 1999)