Marlon Edgardo Lara-Castillo v. State of Florida , 244 So. 3d 354 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-1021
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MARLON EDGARDO LARA-
CASTILLO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.
April 18, 2018
WINSOR, J.
Marlon Lara-Castillo was convicted of lewd or lascivious
molestation. The court sentenced him to twenty-five years. On
appeal, Lara-Castillo contends the trial court should have granted
his motion for judgment of acquittal and, alternatively, that he
deserves a new trial because the prosecutor made improper
arguments below. We affirm.
Lara-Castillo’s victim, a girl who lived nearby, was eight years
old at the time of the crime. She was nine when she testified at
trial that Lara-Castillo touched her “under and over” her clothes.
She explained that she visited Lara-Castillo’s apartment one
morning to meet her younger sisters, who were eating breakfast
there. After she arrived, Lara-Castillo had her sit on his lap, and
he asked her how old she was and if she had any friends. Then he
touched her. She and her sisters ran home, where she immediately
told her mother what happened.
The child’s mother testified too. She said the child came home
that morning “afraid and crying.” The mother explained that she
did not immediately call police because she could not speak
English and had no one to translate for her. Instead, she went to
see her pastor. The pastor arranged a meeting with himself, the
mother, and Lara-Castillo. Both the mother and the pastor
testified that Lara-Castillo admitted at the meeting that he
touched the child, (the pastor said he admitted touching the child
“in her parts . . . between her legs”), and that he asked for
forgiveness. But they both acknowledged Lara-Castillo insisted
the touching was accidental.
About a week after the meeting with the pastor, the mother
contacted police through a friend. Police soon found Lara-Castillo,
just as he was leaving his apartment with a duffel bag containing
clothes, his passport, and $900 in cash. After waiving his Miranda
rights, Lara-Castillo answered officers’ questions and admitted
touching the child, maintaining the touching was accidental. But
he gave officers inconsistent details: He first said he touched only
the upper part of the child’s body and only with the back of his
hand. But he later said he it was the front of his hand and her
thigh, near her private area.
After the State presented this and other evidence at trial,
Lara-Castillo moved for a judgment of acquittal, arguing there was
no evidence he touched the child in a “lewd or lascivious manner.”
See § 800.04(5)(a), Fla. Stat. (2016); cf. also Chesebrough v. State,
255 So. 2d 675, 677 (Fla. 1971) (“The words ‘lewd’ and ‘lascivious’
behavior when used in a statute to define an offense has been held
to have the same meaning, that is, an unlawful indulgence in lust,
eager for sexual indulgence.”); Fla. Std. Jury Instr. (Crim.) 11.10(c)
(“The words ‘lewd’ and ‘lascivious’ mean the same thing: a wicked,
lustful, unchaste, licentious, or sensual intent on the part of the
person doing an act.”). Lara-Castillo argued that the child never
testified to intent and that the only evidence of intent was his
statement that the entire incident was an accident. The court
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denied the motion, and Lara-Castillo raises the same argument
here. We review de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla.
1992).
The problem with Lara-Castillo’s argument is that intent is
almost always established through circumstantial, rather than
direct, evidence. Green v. State, 90 So. 3d 835, 837 (Fla. 2d DCA
2012) (“Intent, a state of mind, is rarely susceptible of direct proof.
It is almost always shown solely by circumstantial evidence.”);
Manuel v. State, 16 So. 3d 833, 835 (Fla. 1st DCA 2005) (“[D]irect
evidence of intent is rare, and intent is usually proven through
inference . . . .”). And while no witness testified that Lara-Castillo
touched the child for “sexual indulgence” or with “sensual intent,”
jurors could have found he did, based on the evidence: Lara-
Castillo placed the girl on his lap before touching her under her
clothes and between her legs. The girl ran home scared and crying.
Lara-Castillo gave inconsistent accounts of what happened, and
police found him carrying a duffel bag with items consistent with
an effort to flee. Cf. Twilegar v. State, 42 So. 3d 177, 196 (Fla. 2010)
(holding that “evidence of flight . . . after the fact of a crime is
admissible as ‘being relevant to consciousness of guilt which may
be inferred from such circumstances.’” (quoting Straight v. State,
397 So. 2d 903, 908 (Fla. 1981))). Considering all the evidence in
the light most favorable to the State, see Ibeagwa v. State, 141 So.
3d 246, 246–47 (Fla. 1st DCA 2014), we conclude a reasonable jury
could find Lara-Castillo touched the child “in a lewd or lascivious
manner.”
Finally, we reject Lara-Castillo’s separate argument that he
is entitled to a new trial based on allegedly improper comments in
the State’s closing arguments and during his cross-examination.
As Lara-Castillo acknowledges, he presented no objection to the
comments below, and we conclude that there was no fundamental
error.
AFFIRMED.
JAY and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Victor D. Holder, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.
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