Schuster v. State , 2009 Fla. App. LEXIS 575 ( 2009 )

17 So. 3d 304 (2009)

Dirk SCHUSTER, Appellant,
v.
STATE of Florida, Appellee.

No. 4D07-1014.

District Court of Appeal of Florida, Fourth District.

January 28, 2009.

Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Dirk Schuster was charged with two counts of lewd and lascivious molestation under section 800.04(5)(a), Florida Statutes (2007), and four counts of lewd and lascivious battery against a minor, contrary to section 800.04(4)(a). The jury found Schuster guilty of four counts of lewd and lascivious battery, one count of lewd and lascivious molestation, and one count of an unnatural and lascivious act, section 800.02, as a lesser included offense.

The charges arose from one visit by the 12 year old victim to appellant's house. The two watched pornographic movies and appellant asked the victim to "massage his back." The child agreed and began to massage appellant's back. During the massage, appellant asked the victim to lay on top of him. He complied. Appellant then asked the child if he "was willing to try" the types of things occurring in the pornographic movies. The child agreed and appellant touched the child's penis with his hand. Afterwards, appellant performed fellatio on the child; the child performed fellatio on appellant. Next, appellant "took his penis and put it in [the child's] behind" until the child complained that "it was hurting ... and he stopped." Then the child "stuck [his] penis inside [appellant's] butt," which appellant facilitated by putting "something" on the child's penis to make penetration easier. The child asked appellant if he wanted the child "to take it out when [he] was fixing to do it." Appellant said, "Go ahead and do it inside." After the child ejaculated, both parties dressed and appellant instructed: "Don't tell nobody nothing."

We find no double jeopardy violation because the sexual acts were serial, distinct in character, and appellant had sufficient time between each act to reflect and form a new criminal intent. See Schwenn v. State, 898 So. 2d 1130, 1132 (Fla. 4th DCA 2005); Samuel v. State, 925 So. 2d 475 (Fla. 4th DCA 2006). See also Meshell v. State, 980 So. 2d 1169 (Fla. 5th DCA 2008) quashed by State v. Meshell, 2 So. 3d 132 (Fla. 2009).

Affirmed.

GROSS, C.J., POLEN and HAZOURI, JJ., concur.