LASEDRICK ROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed conviction for lewd or lascivious battery, holding that instructing the jury on an uncharged alternative theory (sexual union) did not constitute fundamental error because the state neither relied upon nor presented evidence of that theory.
A trial court does not commit fundamental error by instructing the jury on an uncharged alternative element when the state neither relied upon nor offered evidence supporting that element.
[1] A trial court does not commit fundamental error by instructing the jury on an uncharged alternative element of a crime when the state neither relied upon nor offered evid…
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Join FLexlaw to unlock all legal intelligence“the trial court does not commit fundamental error by instructing the jury on an uncharged element on which the state neither relied nor offered any evidence”
Court citing State v. Weaver standard for when jury instruction on uncharged alternative does not constitute fundamental error
Appellant was charged with lewd or lascivious battery based on sexual penetration. The trial court instructed the jury it could convict based on eithe…
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In this direct criminal appeal, appellant claims that the trial court committed fundamental error by instructing the jury that it could convict appellant of lewd or lascivious battery by finding sexual penetration or union when the information alleged only sexual penetration. In Eaton v. State, 908 So.2d 1164 (Fla. 1st DCA 2005), we held that the trial court committed fundamental error by instructing the jury on the uncharged alternative theory of sexual union because it was impossible to determine from the jury’s general verdict whether the defendant was convicted based on the charged theory of sexual penetration or the uncharged theory of sexual union. However, after carefully reviewing the evidence and arguments presented at trial, we conclude that fundamental error did not occur in this case because the jury did not convict appellant based on the uncharged theory of sexual union. See State v. Weaver, 957 So.2d 586, 589 (Fla.2007) (holding that the trial court does not commit fundamental error by instructing the jury on an uncharged element on which the state neither relied nor offered any evidence). Accord Jomolla v. State, 990 So.2d 1234, 1238 (Fla. 3d DCA 2008); Beasley v. State, 971 So.2d 228, 230 (Fla. 4th DCA 2008); Abbott v. State, 958 So.2d 1140, 1142 (Fla. 4th DCA 2007). We also affirm, without discussion, the trial court’s denial of appellant’s motion to suppress.
AFFIRMED.
WOLF, WEBSTER, and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Olivera v. State, 58 So. 3d 352 (Fla. 1st DCA 2011)…ument by the State concerned only one method— did not rise to the level of fundamental error. This contraction of the fundamental error exception was applied to the “penetration or union” instruction for lewd or lascivious battery in Ross v. State, 31 So. 3d 858 (Fla. 1st DCA 2010). There, the evidence and argument at trial made it clear to the court that the jury did not convict the appellant based on the uncharged theory of sexual union. Only when there is reason to believe the conviction is for an offens…
Authorities Cited
- State v. Weaver, 957 So. 2d 586 (Fla. 2007)
- Eaton v. State, 908 So. 2d 1164 (Fla. 1st DCA 2005)
- Abbott v. State, 958 So. 2d 1140 (Fla. 4th DCA 2007)
- Beasley v. State, 971 So. 2d 228 (Fla. 4th DCA 2008)
- Jomolla v. State, 990 So. 2d 1234 (Fla. 3d DCA 2008)