FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-3660
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NGOC C. THACH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
Francis Allman, Judge.
September 24, 2020
PER CURIAM.
Ngoc Thach challenges his convictions and sentences on four
counts of lewd or lascivious molestation involving his three
stepdaughters. At trial, the State was permitted to amend four
counts of the information (out of 15 total counts) over Appellant’s
prejudice objections. The four counts had previously been charged
as sexual batteries: two counts of sexual battery involving a child
under 12, see § 794.011(2)(a), Fla. Stat., and two counts of sexual
battery by familial authority involving a person between the ages
of 12 and 18 years old, see § 794.011(8)(b), Fla. Stat. After the
amendment, the trial culminated with a jury finding Appellant
guilty on these four counts and others.
In Lackos v. State,
339 So. 2d 217, 219 (Fla. 1976), the Florida
Supreme Court set forth due process standards for amending an
information during trial. Abandoning “highly technical and
formalistic requirement[s],” it determined that the State “may
substantively amend an information during trial, even over the
objection of the defendant, unless there is a showing of prejudice
to the substantial rights of the defendant.” State v. Anderson,
537
So. 2d 1373, 1375 (Fla. 1989) (emphasis added) (discussing
Lackos); see also Wright v. State,
41 So. 3d 924, 926 (Fla. 1st DCA
2010) (recognizing that “it is well settled that the State may not
amend an information during trial if the amendment prejudices
the defendant”); State v. Erickson,
852 So. 2d 289, 291 (Fla. 5th
DCA 2003) (“It is well-settled that the state may amend its
information pre-trial or even during trial, either as to substantive
or non-substantive matters, unless the defendant is prejudiced
thereby.”).
In Appellant’s case, we agree with the trial court’s conclusion
that the State’s substantive amendment of four counts from sexual
battery to lewd or lascivious molestation did not prejudice
Appellant’s substantial rights. While the two crimes are different,
the manner that these four sexual battery counts were charged in
the second amended information were such that the amended lewd
or lascivious molestation charges could not help but have been
proven if the greater offense allegations were proven. Specifically,
before the amendment, the second amended complaint alleged
“sexual activity” in each of the four sexual battery counts and that
Appellant digitally or with his penis penetrated and/or made union
with specific parts of his victims’ bodies. The witness testimony
supporting the State’s case proved the allegations, except that the
sexual-touch evidence fell short of proving the “penetration and/or
union” elements of the sexual battery charges. The apparent
absence of “penetration and/or union” evidence on these counts
prompted the State to seek amendment of the four charges to lewd
or lascivious molestation, which required a lesser showing of
sexually oriented touching—only that Appellant “intentionally
touche[d] . . . the . . . genitals, genital area, or buttocks, or the
clothing covering them” of his victims in a lewd or lascivious (i.e.,
unchaste or sensual) manner. See § 800.04(5)(a), Fla. Stat.; Lara–
Castillo v. State,
244 So. 3d 354, 355 (Fla. 1st DCA 2018)
(discussing the definition of “lewd or lascivious manner”); see also
Anderson v. State,
291 So. 3d 531, 538 (Fla. 2020) (recognizing the
2
State’s prerogative to amend an information based upon
subsequent factual developments).
Appellant’s counsel objected to the State’s motion to amend
the information claiming prejudice from not being able to ask the
witnesses more questions about the touching: “[the amended
charge] would require evidence of lewd and lascivious touching. I
could have cross-examined the witness more in that sense had I
known the State might proceed on that charge.” The basis for the
objection is not crystal clear. But we see no prejudice in any
touching-related issues because the second amended information
charged the crimes in a way that the elements of the lewd or
lascivious molestation charges were subsumed in the sexual
battery charges. Cf. Williams v. State,
957 So. 2d 595, 599 (Fla.
2007) (“[W]hen the State alleges that the victim was between ages
twelve and fifteen in a count charging a violation of section
794.011(3) (sexual battery as defined), that charge subsumes lewd
or lascivious battery under section 800.04(4)(a) (sexual activity as
defined).”); Roughton v. State,
185 So. 3d 1207, 1210 (Fla. 2016)
(recognizing that “the conduct constituting capital sexual battery
will as a practical matter ordinarily—if not always—also
constitute lewd or lascivious molestation”). That is, the second
amended information charged Appellant with committing sexual
acts and “engag[ing] in sexual activity” such that Appellant was on
notice of the sexual nature of the incidents charged by the State.
Because the State charged the greater crimes in a manner that
encompassed the amended lesser crimes, it caused no prejudice by
amending the information. We therefore agree with the trial
court’s prejudice assessment and decision to allow the State to
amend the information at trial.
Furthermore, we cannot imagine what other questions that
Appellant would have asked the witnesses about the manner of his
touches. The State charged and convicted Appellant on other
counts of lewd or lascivious molestation against the same victims.
And Appellant’s trial tactics on these counts never suggested that
the stepdaughters misinterpreted Appellant’s touching, or that he
did not conduct these acts in a sensual manner. Appellant cross-
examined each victim, knowing that he was charged with multiple
counts, including other lewd or lascivious acts, without
questioning how he touched them. Instead, Appellant’s defensive
3
posture was that his victims’ allegations were all fabricated. Thus,
we cannot conclude that Appellant “allege[d] or establish[ed] any
specific prejudice resulting from this change” to the information.
See Holland v. State,
210 So. 3d 238, 240 (Fla. 1st DCA 2017).
Finally, the cases cited by the dissent are different than the
circumstances presented here because the amended charges in
those cases were not subsumed within the prior charges and trial
evidence as they are here. See, e.g.,
Wright, 41 So. 3d at 926
(amendment at trial raised new proof issues regarding the use of
a deadly weapon); Viladoine v. State,
268 So. 3d 804, 806 (Fla. 4th
DCA 2019) (amendment at trial raised new evidentiary issues
regarding the existence of a specific object); Blue v. State,
876 So.
2d 1273, 1274 (Fla. 2d DCA 2004) (amendment of the alleged
missile target injected new proof issues).
AFFIRMED.
B.L. THOMAS and OSTERHAUS, JJ., concur; BILBREY, J., dissents
with opinion.
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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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BILBREY, J., dissenting.
Following his conviction for twelve felonies and one
misdemeanor, Appellant challenges his conviction and sentences
for four of the felonies. I would reverse those four convictions and
vacate the sentences imposed. 1 Because the majority affirms, I
respectfully dissent.
1 The convictions and sentences imposed on the other counts,
including six life sentences, would be unaffected by reversing the
four convictions.
4
By a second amended information, Appellant was charged
with fifteen counts arising from his alleged sexual abuse of his
three stepdaughters. After the State rested its case-in-chief,
Appellant moved for a judgment of acquittal as to counts 2 and 3,
each of which alleged sexual battery by a person age 18 or older
upon a child under the age of 12 years, a crime known as capital
sexual battery. See Allen v. State,
298 So. 3d 704 (Fla. 1st DCA
2020); § 794.011(2)(a), Fla. Stat. (2016). The prosecutor initially
agreed that a JOA was warranted as to counts 2 and 3. The
prosecutor also agreed that a JOA was warranted as to count 8,
which alleged sexual battery by a person in familial or custodial
authority of a child between the age of 12 and 18 years. See §
794.011(8)(b), Fla. Stat. (2016). Further, the prosecutor conceded
that the evidence did not establish capital sexual battery as alleged
in count 1.
As for counts 12 and 13, the prosecutor argued that those
counts of sexual battery by a person in familial or custodial
authority of a child between the age of 12 and 18 years, should be
“JOAed down to a lesser included offense[s] of molestation.”
Defense counsel reminded the trial court that lewd and lascivious
molestation is not a lesser included offense of sexual battery by a
person in familial or custodial authority. See Fla. Std. Jury Instr.
(Crim.) 11.1. The trial court agreed to give the parties some time
to consider the appropriate dispositions.
After a break, the prosecutor announced that she did not
think, after all, the charges could be reduced by “JOA-ing . . .
down,” and therefore, she orally moved to amend count 1 from
capital sexual battery to lewd or lascivious molestation. The
defense objected. When asked what prejudice the defense would
suffer, defense counsel replied that his cross-examination would
have been different, and he would have cross-examined the victim
regarding the evidence to support lewd or lascivious touching. The
objection was overruled. The State was also permitted to orally
amend counts 2, 12, and 13 to allege lewd or lascivious molestation
rather than sexual battery, over the objection of the defense. A
judgment of acquittal was entered as to counts 3 (capital sexual
battery) and 8 (sexual battery by a person in familial or custodial
authority on a child between the age of 12 and 18 years).
5
In Wright v. State,
41 So. 3d 924, 926 (Fla. 1st DCA 2010), this
court explained:
While a trial court’s ruling on a motion to amend the
information is reviewed for an abuse of discretion, it is
well settled that the State may not amend an information
during trial if the amendment prejudices the defendant.
State v. Erickson,
852 So. 2d 289, 291 (Fla. 5th DCA 2003);
Lackos v. State,
339 So. 2d 217 (Fla.1976). It is likewise
clear the changing or adding of an offense in an
information is a substantive change evoking prejudice
and requiring a continuance. Peevey v. State,
820 So. 2d
422 (Fla. 4th DCA 2002). Further, an amendment that
substantively alters the elements of the crime charged is
per se prejudicial. Toussaint v. State,
755 So. 2d 170, 172
(Fla. 4th DCA 2000).
Sexual battery is defined to mean “oral, anal, or vaginal
penetration by, or union with, the sexual organ of another or the
anal or vaginal penetration of another by any other object.” §
794.011(1)(h), Fla. Stat. (2016). While lewd and lascivious
molestation is defined as when a perpetrator “intentionally
touches in a lewd or lascivious manner the breasts, genitals,
genital area, or buttocks, or the clothing covering them, of a person
less than 16 years of age, or forces or entices a person under 16
years of age to so touch the perpetrator.” § 800.04(5)(a), Fla. Stat.
(2016). Sexual battery and lewd or lascivious molestation have
different elements. See Roughton v. State,
185 So. 3d 1207, 1210
(Fla. 2016) (“Although the conduct constituting capital sexual
battery will as a practical matter ordinarily—if not always—also
constitute lewd or lascivious molestation, the formal elements of
these two crimes are quite distinct.”). 2
2 Lewd or lascivious battery is a permissive lesser included
offense of sexual battery, Williams v. State,
957 So. 2d 595. 599
(Fla. 2007), and thus an “acquittal down” could not have been
granted reducing the charges to lewd or lascivious battery either.
See State v. Green,
149 So. 3d 1146, 1148 (Fla. 2d DCA 2014)
(explaining that only a necessarily lesser included offense of the
charged offense may be the subject of an “acquittal down”).
6
As was the case in Viladoine v. State,
268 So. 3d 804 (Fla. 4th
DCA 2019), Simbert v. State,
226 So. 3d 883 (Fla. 4th DCA 2017),
and Diaz v. State,
38 So. 3d 791 (Fla. 4th DCA 2010), the oral
amendments to counts 1, 2, 12, and 13 altered the elements of the
crime charged and thus were per se prejudicial. Indeed, before the
oral amendment was sought, the State had conceded a judgment
of acquittal was warranted as to counts 1 and 2 and that
insufficient proof had been offered as to counts 12 and 13, as
alleged. When the State is permitted to amend a charge in mid-
trial, not merely to correct a scrivener’s error, but instead to
change an element of the offense, a defendant is thus subjected to
be found “guilty of a charge for which he was not on trial” and such
a result is a violation of due process. See Blue v. State,
876 So. 2d
1273, 1274 (Fla. 2d DCA 2004); see also Green v. State,
728 So. 2d
779, 781 (Fla. 4th DCA 1999).
Accordingly, I would reverse the convictions entered on counts
1, 2, 12, and 13 of the second amended information (numbered 1,
2, 10, and 11, respectively, on the verdict), and vacate those
convictions. Since the majority affirms, I respectfully dissent.
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Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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