Tulier v. State ( 2014 )

FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ROBERTO TULIER, )
)
Appellant/Cross-Appellee, )
)
v. ) Case No. 2D13-2098
)
STATE OF FLORIDA, )
)
Appellee/Cross-Appellant. )
)
Opinion filed August 20, 2014.
Appeal from the Circuit Court for Pinellas
County; R. Timothy Peters, Judge.
Kepler B. Funk, Keith F. Szachacz, and
Alan S. Diamond of Funk, Szachacz &
Diamond, LLC, Melbourne, for
Appellant/Cross-Appellee.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes, Assistant
Attorney General, Tampa, for
Appellee/Cross-Appellant.
DAVIS, Chief Judge.
Roberto Tulier challenges his convictions and sentences for aggravated
assault and attempted sexual activity with a minor. He was convicted by a jury, and the
trial court sentenced him to 180 days' county jail to be followed by four years' sex
offender probation. The State cross-appeals, arguing that the trial court improperly
included a jury instruction for an offense that was not charged in the information and
was not a lesser-included offense. The State also argues on cross-appeal that the trial
court erred in sentencing Tulier to a nonstate prison sanction because it would not allow
the State to score the attempted sexual activity with a minor count as the primary
offense. We affirm Tulier's conviction for aggravated assault without further comment.
However, we must reverse his conviction for attempted sexual activity with a minor.
And based on that reversal, we dismiss the State's cross-appeal as moot.
The charges against Tulier stem from his encounter with a sixteen-year-
old boy. While driving an SUV, Tulier stopped at a stop sign. The victim was on his
bicycle in the crosswalk in front of Tulier. As the victim passed, Tulier called out to him
through his open passenger-side window. The victim approached the passenger side of
the vehicle walking but still astride his bicycle. Tulier asked him through the open SUV
window what his name was and how old he was. The victim said his name and said
that he was seventeen, although he was still sixteen at the time. Tulier then asked the
victim if he wanted to make $400, to which the victim asked how. Tulier said, "Blow
me." The victim immediately called his father on his cell phone, and his father told him
to get the SUV's tag number. While continuing to talk to his father on the phone, the
victim moved to the back of the vehicle, still straddling his bike. At that point, the victim
"heard the car click into reverse, and the vehicle began coming towards me. I jumped
off my bike into the curb, stepped back into the grass. He hit the bike. Dragged it for a
foot or so." The victim inquired, "What the f__?" Tulier responded, "I'm sorry." Tulier
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then drove forward five or six feet, put the vehicle back in reverse, and floored it,
completely running over the bike. He then put the car back into drive and left the scene.
On appeal, Tulier argues that the trial court erred in failing to grant his
motions for judgment of acquittal and new trial on the attempted sexual activity with a
minor count.1 Tulier maintains that his offering the victim $400 in exchange for oral sex
was not sufficient to amount to an act toward the commission of sexual activity with a
minor but rather merely amounts to solicitation. We agree.
Section 794.05(1), Florida Statutes (2011), provides as follows:
A person [twenty-four] years of age or older who
engages in sexual activity with a person [sixteen] or
[seventeen] years of age commits a felony of the
second degree . . . . As used in this section, 'sexual
activity' means oral, anal, or vaginal penetration by, or
union with, the sexual organ of another . . . .
Section 777.04(1), Florida Statutes (2011), provides that "[a] person who attempts to
commit an offense prohibited by law and in such attempt does any act toward the
commission of such offense, but fails in the perpetration or is intercepted or prevented
in the execution thereof, commits the offense of criminal attempt." (Emphasis added.)
In moving for judgment of acquittal, counsel for Tulier argued that Tulier's
actions amounted to nothing more than mere preparation to commit a crime and that to
be an attempt, the actions need to go beyond mere preparation. In denying judgment of
acquittal, the trial court determined that the overt act in furtherance of the commission of
the crime was Tulier's calling the victim over to him, asking for oral sex, and offering
1
Tulier also argues on appeal that the trial court erred in denying his
motion for statement of particulars as to this count. However, in response to Tulier's
request, the State did inform him of the factual basis for the allegation that he had
committed attempted sexual activity with a minor. At that time, Tulier did not object or
seek further clarification.
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money in exchange for oral sex. The trial court therefore denied the motion and later
denied a motion for new trial raising the same argument. This was error.
In Pittman v. State, 47 So. 2d 691 (Fla. 1950), a case analogous to the
instant case, the Florida Supreme Court considered the offense of attempted sexual
intercourse with an unmarried female of previous chaste character under the age of
eighteen years (statutory rape). In doing so, the court recognized that
"[i]n an assault with intent to have unlawful carnal
intercourse with an unmarried female of previous
chaste character under the age of eighteen years the
intent to then and there have sexual intercourse with
the female is the gravamen, and . . . . there must be
some overt act directed to the consummation of the
unlawful intent."
Id. at 692 (underlined emphasis added) (quoting State v. Bowden, 18 So. 2d 478, 480
(Fla. 1944)). The court went on to state that
[w]here an attempt is charged the overt act need not
be of such force and violence as to constitute a legal
assault. In fact, considering that consent is no
defense against a charge of statutory rape, we can
envisage many acts which would amount to attempts
to perpetrate the crime under consideration. Be that
as it may, to constitute an attempt there must be
some overt act amounting to more than mere
preparation.
Id. Specifically addressing the issue of an overt act versus mere preparation, the court
considered the particular facts of the Pittman case. There, the information charged that
Pittman[ ] did say in the presence of and directly to
the [victim] words in substance and in effect . . . to wit:
I want to take you [to] a dance; I want to take you to
the movies and invited her to go [to] a dance, or the
movies or on [sic] a party with him . . . and called her
endearing names, and upon such invitations being
refused by the [victim] he . . . then asked and invited
the [victim] to go out of the building in which they were
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both then working into adjoining woods for the
purpose of having sexual intercourse with each other
in said woods, or with the intent . . . to have unlawful
carnal intercourse . . . .
Id. at 691. Essentially, Pittman asked the victim to go in the woods and have sex with
him. And the Florida Supreme Court concluded that "[t]he facts alleged and established
in this case constitute, at most, only solicitation—a mere preparation." Id. at 692.
Therefore, the court concluded that "[a]lthough the conduct of the appellant as shown by
the record was indeed reprehensible, there was no allegation in the information, nor
was any proof adduced, of an overt act sufficient to establish a criminal attempt." Id.
The same is true in the instant case. Tulier essentially asked the victim for
oral sex in exchange for $400. And while the trial court made much of the fact that he
called the victim over in order to ask the question, such only amounts to preparation.
The evidence does not support a conviction for attempted sexual activity with a minor.
We therefore must reverse Tulier's conviction on that count.
Affirmed in part; reversed in part; cross-appeal dismissed as moot.
KELLY and LaROSE, JJ., Concur.
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