MICHAEL TRAHAN, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Trahan III was convicted of lewd or lascivious molestation of a child based on jury instructions that permitted conviction on alternative factual theories (touching vagina or buttocks) not all of which were charged in the information. The court reversed, holding that the jury instruction improperly allowed conviction based on uncharged acts, which constitutes fundamental error.
The court held that it was fundamental error to instruct the jury in a manner permitting conviction for a crime not charged in the information, even if the uncharged crime involved an alternative factual theory for proving the charged offense. The jury instruction should have been narrowed to match the narrowed factual theory alleged in the charging document.
[1] A defendant cannot be prosecuted for one offense and convicted for another, even if the offenses are of the same general character or carry the same penalty.
[2] A jury instruction that permits a conviction based on uncharged acts constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“A defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information and cannot be prosecuted for one offense and convicted and sentenced for another, though the offenses are of the same general character or carry the same penalty.”
Establishes the fundamental principle that conviction must follow the charges as alleged
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with lewd or lascivious molestation, with the charging information specifically alleging he touched the victim's vaginal area by…
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TORPY, J.
Appellant challenges his conviction for the offense of lewd or lascivious molestation of a child under sixteen years of age. He asserts that the jury was erroneously instructed that it could convict Appellant based on uncharged acts. We agree, and, finding that the error was fundamental, we reverse and remand this cause for a new trial.
Appellant was charged, by information, with one count of lewd or lascivious molestation. In material part, the information provided:
In the County of Brevard, ... [Appellant] ... did intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area or buttocks, or clothing covering them ... by TOUCHING; RUBBING [the victim’s] VAGINAL AREA....
(Emphasis supplied). At trial, the victim testified that Appellant touched her vagina once and her buttocks on three occasions. During closing, the State argued that it had proven that Appellant touched either the victim’s vagina or her buttocks or both. Without objection, the judge instructed the jury that Appellant could be found guilty if the jury determined that he had touched the victim’s vagina or buttocks, or clothing covering-either. The jury returned a gen eral verdict of guilty, from which this appeal was timely filed.
Citing our decision in Zwick v. State, 730 So. 2d 759 (Fla. 5th DCA 1999), Appellant argues that it was fundamental error to charge the jury in a manner that permitted it to convict for a crime not charged in the information, even if the uncharged crime involved an alternative factual theory for proving the charged offense. We agree. In Zwick, on analogous facts, we held:
A defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information and cannot be prosecuted for one offense and convicted and sentenced for another, though the offenses are of the same general character or carry the same penalty. Jacobs v. State, 184 So. 2d 711 (Fla. 1st DCA 1966).
[Wjhere an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in .the indictment .... The indictment or information may have alleged them in the conjunctive and proof of one would have sufficed but if one of the state of facts is alleged, it .cannot be established by proof of another. Long v. State, 92 So. 2d 259, 260 (1957).... Because the general verdict in the instant' case makes it impossible to determine whether .the jury found Zwick guilty of uncharged acts, we must reverse the convictions for counts two through five of the information.
Zwick, 730 So. 2d at 760. Accord, Vega v. State, 900 So. 2d 572 (Fla. 2d DCA 2004) (fundamental error to instruct jury on alternative factual theory not charged).
Although the charging document here tracks the language of the statute by using the conjunction “or,” the State-chose to narrow its factual theory through use of the phrase “by TOUCHING, RUBBING [the victim’s] VAGINAL AREA.” Under these circumstances, the jury instruction should have been likewise narrowed.
REVERSED AND REMANDED.
GRIFFIN and SAWAYA, JJ., concur.
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Morgan v. State, 146 So. 3d 508 (Fla. 5th DCA 2014)…a courts have consistently applied this rule since its inception. Deleon v. State, 66 So. 3d 391, 393 (Fla. 2d DCA 2011); Brown v. State, 41 So. 3d 259, 262 (Fla. 4th DCA 2010); Diaz v. State, 38 So. 3d 791, 792 (Fla. 4th DCA 2010); Trahan v. State, 913 So. 2d 729, 730 (Fla. 5th DCA 2005); D.R. v. State, 790 So. 2d 1242, 1244^45 (Fla. 5th DCA 2001); Zwick v. State, 730 So. 2d 759, 760 (Fla. 5th DCA 1999). Consistent with this rule, a criminal defendant is entitled to a trial on the charges contained in the in…
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Abbott v. State, 958 So. 2d 1140 (Fla. 4th DCA 2007)…tive grounds for which the evidence was sufficient.” Id. at 59-60, 112 S.Ct. 466 (quoting United States v. Townsend, 924 F. 2d 1385, 1414 (7th Cir.1991)). In light of our affirmance on this issue, we note that Abbott’s reliance on Trahan v. State, 913 So. 2d 729 (Fla. 5th DCA 2005), is misplaced as that case is factually distinguishable. In Trahan, the defendant was charged by information with touching or rubbing the victim’s vaginal area, but the jury was instructed that it could find Trahan guilty if it d…
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Reyes v. State, 149 So. 3d 89 (Fla. 4th DCA 2014)…3 (Fla. 2d DCA 2011) (quoting Long v. State, 92 So. 2d 259, 260 (Fla.1957)). Thus, when the state limits a charging document to a specified factual theory, the jury instruction should not go outside of that factual theory. See [*92] Trahan v. State, 913 So. 2d 729, 730 (Fla. 5th DCA 2005). The challenged instruction provided that the jury could find Appellant guilty of Count III if it found that he “intentionally touched in a lewd or lascivious manner the clothing covering the vagina and/or vaginal area of […
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Long v. State, 92 So. 2d 259 (Fla. 1957)
- Fisher v. Fisher, 184 So. 2d 711 (Fla. 2d DCA 1966)
- Watts v. State, 730 So. 2d 759 (Fla. 2d DCA 1999)
- Geronimo Vega v. State, 900 So. 2d 572 (Fla. 2d DCA 2004)