FRANCISCO XAVIER DE ARAGON II v. STATE OF FLORIDA , 273 So. 3d 26 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FRANCISCO XAVIER DE ARAGON II,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-2010
[May 22, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case Nos. 156543CF10A
and 156881CF10A.
Carey Haughwout, Public Defender, and Tom Wm. Odom and Paul
Edward Petillo, Assistant Public Defenders, West Palm Beach, for
appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
KLINGENSMITH, J.
Appellant Francisco Xavier De Aragon II, was charged with and
convicted of sexually assaulting three six-year-old girls while giving them
swimming lessons. Appellant presents three points on appeal, but we
choose to address only whether the trial court reversibly erred in denying
his request for a permissive lesser-included simple battery instruction on
the three lewd or lascivious molestation counts. We find no error in
denying the requested instructions and affirm on all issues raised.
Appellant was charged by amended information with five separate
counts: sexual battery on A.C. and B.E.; and lewd or lascivious
molestation of A.C., B.E. and A.P. During the jury instruction conference,
defense counsel requested an instruction on simple battery as a
permissive lesser-included offense on the three lewd molestation counts.
The State objected, arguing the instruction was not appropriate for the
lewd molestation charges, though conceding it would be proper on the
sexual battery offenses.
Pointing to Khianthalat v. State (Khianthalat II), 974 So. 2d 359 (Fla.
2008), the State argued that the trial court could not allow the simple
battery instruction as a lesser-included offense because the information
did not plead a lack of consent and the facts of the case did not support
simple battery. The trial court denied Appellant’s instruction request and
reasoned that simple battery was not subsumed within the lewd
molestation offense because “[b]attery requires lack of consent. Lewd or
lascivious molestation does not.”
Appellant was found guilty of all three lewd molestation charges. 1 This
appeal follows.
“[A] trial court has wide discretion in instructing the jury, and the
court’s decision regarding the charge to the jury is reviewed with a
presumption of correctness on appeal.” Carpenter v. State, 785 So. 2d
1182, 1199-1200 (Fla. 2001) (quoting James v. State, 695 So. 2d 1229,
1236 (Fla. 1997)). But a legal determination based upon undisputed facts
as to whether a defendant is entitled to a jury instruction on an alleged
permissive lesser-included offense is a question reviewed de novo by this
court. See State v. Knighton, 235 So. 3d 312, 314 (Fla. 2018). Here, we
must determine whether Appellant was entitled to a permissive lesser-
included simple battery instruction on the lewd molestation counts.
Lesser-included offenses are either necessary or permissive. See
Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006). Necessary lesser-
included offenses are “subsumed within” the charged offenses. See Stoffel
v. State, 247 So. 3d 89, 92 (Fla. 1st DCA 2018). Thus, a trial court must
instruct the jury on necessary lesser-included offenses. See McKiver v.
State, 55 So. 3d 646, 649 (Fla. 1st DCA 2011). “In contrast, a permissive
lesser-included offense is one where both offenses appear to be separate
on the face of the statutes, ‘but the facts alleged in the accusatory
pleadings are such that the lesser [included] offense cannot help but be
perpetrated once the greater offense has been.’” Stoffel, 247 So. 3d at 92
(alteration in original) (quoting Sanders, 944 So. 2d at 206).
An instruction on a permissive lesser-included offense is authorized
only when two conditions are met: “(1) the indictment or information must
allege all the statutory elements of the permissive lesser included offense;
and (2) there must be some evidence adduced at trial establishing all of
these elements.” Khianthalat II, 974 So. 2d at 361 (quoting Jones v. State,
1 Appellant was also found guilty of sexual battery against A.C. and simple battery
(as a necessary lesser-included offense to sexual battery) against B.E.
2
666 So. 2d 960, 964 (Fla. 3d DCA 1996)). A trial court does not err in
denying a permissive lesser instruction when either, or both, of the above
conditions have not been met. See id.
Our analysis continues with a review of the statutory language and
essential elements of the charged offense and the alleged permissive
lesser-included offense. See Stoffel, 247 So. 3d at 92.
Lewd or lascivious molestation occurs when “[a] person . . .
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[.]” § 800.04(5)(a), Fla. Stat. (2015). It is a life felony
to commit lewd or lascivious molestation on or against a child under the
age of twelve. See § 800.04(5)(b), Fla. Stat. The lesser-included offense of
simple battery is defined as the intentional touching of another against
that person’s will. See § 784.03(1)(a)1., Fla. Stat. (2015).
Thus, for Appellant to receive a permissive battery instruction on the
lewd molestation charges: (1) the charging instrument must allege the
statutory elements of battery, and if so, (2) there must have been evidence
presented at trial to establish those elements. See Stoffel, 247 So. 3d at
92. Given that lewd molestation also requires intentional touching, it is
undisputed that this element was present in the charging instrument and
evidence of this element was presented at trial. Accordingly, our analysis
is dependent on the second element of battery: whether the touching was
against the person’s will.
The language of the charging information in the present case followed
the lewd molestation statute for each count charged, respectively:
[O]n or about the 19th of May, 2015, in the County and State
aforesaid, being a person of the age of eighteen (18) years or
older, did intentionally touch in a lewd or lascivious manner
the genital area, or the clothing covering it, of [Minor Victim],
a person less than twelve (12) years of age, contrary to F.S.
800.04(5)(a) and F.S. 800.04(5)(b).
As seen above, the charging instrument clearly fails to allege that the
charged offense was committed against the victims’ will. Appellant
attempts to circumvent the first condition of a permissive lesser-included
instruction by claiming the “against that person’s will” element of battery
was implicitly alleged because the charging instrument claimed that the
victims were under the age of twelve, thus entitling them to the conclusive
presumption that a child under the age of twelve lacks the capacity to
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consent to or protect against an unlawful touch. Appellant points to the
conclusive presumption embodied within section 794.011(2)(a), Florida
Statutes (2014), as instructive:
The presumption of incapacity to consent is still embodied
in current statutes defining sexual offenses. Section 794.011,
Florida Statutes (2002), the sexual battery statute, reflects
that the presumption of incapacity to consent ends at age
eleven. Subsections (3), (4) and (5) define sexual batteries
involving victims twelve or older. To constitute sexual battery
under those subsections, the State must prove the victim did
not consent. This requirement recognizes that a person twelve
or older has the ability to consent.
In contrast, subsection (2)(a) provides: “[A] person 18 years
of age or older who commits sexual battery upon, or in an
attempt to commit sexual battery injures the sexual organs of,
a person less than 12 years of age commits a capital felony.”
This subsection of the sexual battery statute does not explicitly
mention consent because it incorporates the presumption that
“a child of such immature age is incapable of either consenting
to or protesting against the act.” As noted by the court in
Caulder v. State, 500 So. 2d 1362, 1363–64 (Fla. 5th DCA
1986), in a prosecution for sexual battery on a child eleven
years of age or younger, lack of consent is always an element
because of the conclusive presumption that a child that age
cannot consent. Thus, because lack of consent is an element
of sexual battery under subsection (2)(a), the offense always
includes a charge of simple battery as a necessarily lesser-
included offense, just as it does under subsections (3), (4) and
(5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included
Offenses, § 794.011.
Khianthalat v. State (Khianthalat I), 935 So. 2d 583, 585-86 (Fla. 2d DCA
2006) (emphases added) (footnote omitted), approved, 974 So. 2d 359 (Fla.
2008).
In Khianthalat II, the defendant requested a simple battery instruction
as a permissive lesser-included offense to lewd or lascivious battery on a
child between the ages of twelve and sixteen. 974 So. 2d at 360. There,
the defendant argued, as Appellant argues here, “that because the victim
is a minor she was not legally capable of consenting to sexual activity;
thus, he was entitled to a battery instruction even though the information
did not specifically allege and the evidence did not establish that he
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touched the victim against her will.” Khianthalat I, 935 So. 2d at 584. The
Second District found the defense’s argument confused “the unavailability
of consent as a defense to a charge of lewd, lascivious, and indecent act
with a child with the legal presumption that a child under the age of twelve
cannot consent to sexual activity,” and proceeded to dissect the
defendant’s argument by providing a review of the sexual battery statute.
See id. at 584-86. Affirming the Second District, the Florida Supreme
Court first determined that the conditions for a permissive lesser-included
instruction had not been met. Khianthalat II, 974 So. 2d at 361. Then,
having decided the conditions had not been met, the Florida Supreme
Court favorably quoted the Second District’s discussion:
The fact that section 800.04 eliminates consent as a defense
necessarily implies that the sexual activity may be
consensual, but nevertheless, the State, as a matter of policy,
will ignore the consent because of its legitimate interest in
protecting minor from sexual exploitation. Because in this
case the presumption of incapacity to consent is inapplicable
and the sexual battery activity was not against the minor
victim’s will, Khianthalat was not entitled to an instruction on
simple battery.
Khianthalat II, 974 So. 2d at 362 (emphasis added) (citation omitted)
(quoting Khianthalat I, 935 So. 2d at 586). Pointing to the language
indicated, Appellant claims the presumption was not available in
Khianthalat because the minor victim was over the age of twelve.
Therefore, because the minor victims in this case are under the age of
twelve, Appellant contends that the presumption is applicable. We
disagree, as the presumption of a lack of consent based on the victim’s age
cannot be implicitly alleged when consent is not an essential element of
the charged offense.
The elimination of consent as a defense and apparent absence of the
“against that person’s will” element in section 800.04(5) means simple
battery may be a permissive lesser-included offense to a lewd or lascivious
molestation so long as both conditions are met. See Khianthalat, 974 So.
2d at 361. Here, neither condition was met as to the “against the person’s
will” element of simple battery; this precluded the permissive lesser-
included instruction and the trial court correctly refused to give it.
Accordingly, we affirm.
Affirmed.
GERBER, C.J., concurs.
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FORST, J., concurs in part and dissents in part with opinion.
FORST, J., concurring in part and dissenting in part.
Appellant appeals from the final judgment of conviction and the final
order imposing sentence, making three arguments: 1) the trial court erred
in denying Appellant’s request for jury instructions on the permissive
lesser included offense of battery on the three lewd or lascivious
molestation counts; 2) the trial court abused its discretion in admitting
the child victims’ hearsay statements; and 3) the trial court abused its
discretion in denying Appellant’s motion for mistrial. I agree with the
majority’s decision to affirm without comment as to the hearsay and
mistrial arguments. As such, I would affirm the conviction on the sexual
battery charge. I respectfully disagree, however, with the majority’s
decision to affirm on the first issue regarding the three lewd or lascivious
molestation convictions. I would find that the information alleged all the
statutory elements of battery and that the evidence at trial established
these elements. Because Appellant requested the instruction, I would
reverse and remand for a new trial on the three lewd or lascivious
molestation counts.
Background
As part of the school day, students were bused to an aquatic center for
swim class where Appellant worked as a swim instructor. The school
teachers attended the swim classes to monitor the children. Each class
had about twenty to thirty children at a time for a thirty-minute class
immediately followed by another group of children.
The three six-year-old girls individually reported to their parents,
participated in a videotaped interview with police, and testified at trial that,
on the same day, Appellant reached underneath their bathing suits while
he was teaching them a front float. One of the girls reported that Appellant
put his hand inside of her vagina. Two of the girls reported that Appellant
put his hand on top of their vaginas.
Appellant testified on his own behalf. He admitted teaching at the pool
on the day at issue but denied the charges. He testified that if his hand
went into a student’s bathing suit, he would have known.
During conferences on jury instructions, the trial court ruled that
Appellant was entitled to an instruction on the charge of unnatural and
lascivious act as a permissive lesser offense on the counts charging lewd
or lascivious molestation. The defense also requested battery as a
6
permissive lesser included offense on these counts. The State objected,
arguing that it was not appropriate for the lewd or lascivious molestation
charge, though it would be proper for the sexual battery charge. The
trial court agreed with the State, because “battery requires lack of consent.
Lewd or lascivious molestation does not.” The defense maintained that
battery was subsumed within the lewd or lascivious molestation offense.
The trial court denied the defense’s request, and the jury instructions and
verdict forms reflected that ruling.
Appellant was found guilty of one count of sexual battery on a child
less than twelve years of age and three counts of lewd or lascivious
molestation of a child less than twelve years of age. He was sentenced to
two consecutive terms of life imprisonment without possibility of parole.
Analysis
Appellant argued below that he was entitled to a jury instruction on
battery as a permissive lesser included offense of lewd or lascivious
molestation because the information alleged all the elements of a battery,
including the lack of consent element, and because of the legal
presumption that children under the age of twelve cannot consent to such
a touch. This issue is reviewed de novo “[b]ecause this matter involves a
legal determination based upon undisputed facts.” Khianthalat v. State
(Khianthalat II), 974 So. 2d 359, 360 (Fla. 2008).
As stated by the majority opinion, when requested, a trial court
must give a jury instruction on a permissive lesser included
offense if the following two conditions are met: “(1) the
indictment or information must allege all the statutory
elements of the permissive lesser included offense; and (2)
there must be some evidence adduced at trial establishing all
of these elements.”
Id. at 361 (emphasis added) (quoting Jones v. State, 666 So. 2d 960, 964
(Fla. 3d DCA 1996)). It is a “longstanding rule” in Florida that “[a]n
instruction on a permissive lesser included offense is appropriate only if
the allegations of the greater offense contain all the elements of the lesser
offense and the evidence at trial would support a verdict on the lesser
offense.” Id. (quoting Williams v. State, 957 So. 2d 595, 599 (Fla. 2007)).
The information charging Appellant with lewd or lascivious molestation
states in relevant part that the defendant:
7
being eighteen (18) years of age or older, did intentionally
touch in a lewd or lascivious manner the genital area, or
the clothing covering it, of [victim], a person less than
twelve (12) years of age, contrary to F.S. 800.04(5)(a) and
F.S. 800.04(5)(b).
The information tracks the lewd or lascivious molestation statute: “A
person wh o 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 . . . commits lewd or lascivious
molestation.” § 800.04(5)(a), Fla. Stat. (2015). It is a life felony for an
adult to touch a child in this manner if the child is less than twelve years
old. § 800.04(5)(b), Fla. Stat. Battery is an intentional touching against
the victim’s will. § 784.03(1)(a)1., Fla. Stat. (2015). Battery is a permissive
lesser included offense of lewd or lascivious molestation. Fla. Std. Jury
Instr. (Crim.) 11.10(c).
Here, the information clearly alleged an intentional touching. Thus,
the first question pertinent to the jury instruction issue is whether the
information alleged that the touching was against the will of a victim
under twelve years old. The majority found that the information “clearly
fails” to allege that the lewd touch was against the victim’s will. The
majority holds that because consent is not an essential element of the
charged offense, the lack of consent element must be expressly stated. I
disagree. As recognized by the majority, a permissive lesser included
offense exists when the “offenses appear to be separate on the face of the
statutes, but the facts alleged in the accusatory pleadings are such that
the lesser included offenses cannot help but be perpetrated once the
greater offense has been.” (alteration and internal quotation marks
omitted) (quoting Stoffel v. State, 247 So. 3d 89, 92 (Fla. 1st DCA 2018)).2
There is a legal presumption that children under twelve years old are
incapable of consenting to the type of touch alleged here. Because of this
legal presumption, when a defendant is charged with sexual battery of a
child under twelve, the information need not expressly state that the
2 Similarly, the type of touch alleged here is “unnatural,” allowing for the
instruction on the lesser included offense of unnatural and lascivious act under
section 800.02, Florida Statutes (2015). The information need not expressly state
that the lewd or lascivious touch was also “unnatural.” See, e.g., Wong v. State,
212 So. 3d 351, 360 (Fla. 2017) (finding the defendant was entitled to the
unnatural and lascivious act jury instruction because the information alleged
that the defendant made oral and skin contact with the sexual organ of child
victims).
8
sexual battery was without the consent of the under twelve-year-old
victim. Khianthalat v. State (Khianthalat I), 935 So. 2d 583, 586 (Fla. 2d
DCA 2006), approved, 974 So. 2d 359 (Fla. 2008). “[I]n a prosecution for
sexual battery on a child eleven years of age or younger, lack of consent is
always an element because of the conclusive presumption that a child that
age cannot consent.” Id. (citing Caulder v. State, 500 So. 2d 1362, 1363-
64 (Fla. 5th DCA 1986)). The lack of consent presumption is not explicitly
set forth in section 794.011(2), Florida Statutes (2015) (sexual battery on
a child under twelve). Rather, there is an “irrebuttable presumption that
children under twelve cannot consent” to the types of touch described in
the sexual battery statute. Acevedo v. Williams, 985 So. 2d 669, 671 n.2
(Fla. 1st DCA 2008).
In Khianthalat, the defendant was charged with lewd or lascivious
battery on a child twelve years of age or older but less than sixteen years
of age. Khianthalat I, 935 So. 2d at 584. The information did not expressly
state that the act was without the consent of the child victim, who was
thirteen years old when she first had sex with the defendant. Id. The
defendant asked the trial court to instruct the jury on battery as a lesser
included offense, arguing that “because the victim was a minor she was
not legally capable of consenting to sexual activity; thus, he was entitled
to a battery instruction even though the information did not specifically
allege and the evidence did not establish that he touched the victim against
her will.” Id.
The defendant’s argument in Khianthalat was similar to Appellant’s
argument in the present case: the lack of consent element of battery was
present in the information because “lack of consent is presumed by law
in a child of tender years.” Khianthalat II, 974 So. 2d at 361-63. However,
the charge in Khianthalat was for a lewd or lascivious battery against a
thirteen-year-old child, not a child under twelve. The supreme court, in
affirming the lower courts’ holding that the defendant was not entitled to
the battery instruction, dissected the defense’s argument and rejected it.
The court explained that the defense confused the unavailability of
consent as a defense to lewd or lascivious offenses under section 800.04
(no matter the child’s age) with the legal presumption that a child under
twelve cannot consent to the sexual activity described in the sexual battery
statute. Id. at 361.
In explaining how the defense’s argument was flawed, the court looked
to the presumptions of consent present in the sexual battery statute, noting
that children twelve and older can consent to sex acts; therefore, the court
held, the lack of consent must be expressly alleged and proven. Id.; see
§ 794.011(3)-(5), Fla. Stat. (sexual battery on a child twelve and older
9
must be without the victim’s consent). As offenses under the lewd or
lascivious statute are intended to protect children under sixteen from lewd
or lascivious offenses regardless of consent, that statute expressly
eliminates consent as a defense. See Khianthalat II, 974 So. 2d at 362;
§ 800.04(2), Fla. Stat.
The court in Khianthalat II explained that the sexual battery statute
draws the line of consent at twelve years old. Because of this
presumption, in the prosecution of a sexual battery against a child under
twelve, the lack of consent is presumed, and the element is always met.
Khianthalat II, 974 So. 2d at 362. Children twelve years of age or older but
less than sixteen years of age, on the other hand, never get a presumption
of the lack of consent element. Accordingly, the court held that “[b]ecause
in this case the presumption of incapacity to consent is inapplicable and
the sexual activity was not against the minor victim’s will, Khianthalat
was not entitled to an instruction on simple battery” for his charge under
the lewd or lascivious statute. Id. at 362 (emphasis added).
Like the courts in Khianthalat, I would similarly look to the
presumption of consent present in the sexual battery statute to determine
whether a battery instruction is proper as a lesser included offense of
charges under the lewd or lascivious statute, which also draws a line at
twelve years old. The victim in Khianthalat was twelve or older but
less than sixteen; thus, the legal presumption of the incapacity to
consent to the touch was inapplicable. The victims here, in contrast,
were under twelve. Thus, the legal presumption is applicable as the
victims lacked the capacity to consent to the touch described in the
information.
Accordingly, I would hold that the lack of consent element required for
battery was alleged in the information because it states that the victims
were under twelve years old and describes a touch to which children in
that age group lack the capacity to consent. The language in the
information that Appellant “intentionally touch[ed] in a lewd or lascivious
manner” certain anatomical areas on a child under twelve alleges all the
statutory elements of a battery—a touch against the victim’s will.
Moreover, unlike the defendant in Stoffel, Appellant did not have the
authority, by the nature of his relationship to the child victims, to touch
their vaginas for a non-sexual purpose. In Stoffel, like the instant case,
the defendant was convicted of lewd or lascivious molestation of a child
under twelve and the issue was whether the information was sufficient to
allow for the instruction of battery when it failed to explicitly state that
the defendant’s touch was against the will of the child victim. 247 So. 3d
10
at 92. There, the victim was nine years old at the time of the crime and was
the defendant’s step-daughter. Id. at 91. The offense took place in a movie
theater when the defendant asked if he could touch his step-daughter’s
breasts and she said yes. Id. The defendant requested an instruction on
battery as a lesser included offense, which was denied. Id.
The First District rejected the defendant’s argument that, because
the victim was under the age of twelve, the elements of a battery were
met as a matter of law. Id. at 93. This is because “parents and those in
loco parentis are privileged to touch their children, non-abusively, against
their will.” Id. (citing Morris v. State, 228 So. 3d 670 (Fla. 1st DCA
2017)). Therefore, because the defendant was the victim’s step-father, he
could not be punished for a battery against her because the touch was a
crime on ly if done in a lewd or lascivious manner. Id. (“[E]ither the act
of fondling the nine-year old’s breasts was a lewd molestation or it was
no crime at all, because a non-lewd touching of a child by a parent cannot
constitute a battery, absent evidence of physical injury or other factors not
alleged or proven here.”). 3 Here, however, Appellant was not in loco
parentis and his touch of the victims’ vaginas was not privileged.
Because I would hold that the information alleged all the facts
necessary to establish the elements of a battery, the next question in
determining if Appellant was entitled to an instruction on battery is
whether there was some evidence adduced at trial establishing the battery.
Khianthalat II, 974 So. 2d at 361. Each of the victims reported to their
parents, participated in a videotaped interview with police, and testified at
trial that Appellant used his hand to go underneath their bathing suit to
touch the outside or inside of their vagina, and that this touch occurred
when they were six years old. Accordingly, both conditions are met, and
Appellant was entitled to a battery instruction as requested.
3 Barnett v. State, 45 So. 3d 963 (Fla. 3d DCA 2010), is factually similar to Stoffel;
the defendant argued he was entitled to a jury instruction on battery as a lesser
included offense of lewd or lascivious molestation when the victim was under
twelve and was the defendant’s step-daughter. The Third District recognized that
battery can be a permissive lesser included offense to the charge, but found that
the information “did not include any language stating that the touching was
against the will of the victim.” Id. at 964. The Third District based its decision
on Khianthalat II, calling it “[t]he same situation” even though the victim in
Barnett was under twelve. Id. Although Barnett does not discuss the issue of
privilege, it is distinguishable from the present case for the reasons articulated
in Stoffel. Moreover, the Third District stated that the defendant’s argument
focused on the “unlawful touching” language in the information, claiming that
this language was broad enough to include battery. Id. Here, the argument made
by Appellant is that the victims’ age presumes they did not consent to the touch.
11
The fact that the trial court instructed the jury on the permissive lesser
included offense of unnatural and lascivious act does not subject the issue
to a harmless error analysis because “[t]he failure to instruct on the next
immediate lesser-included offense, one step removed from the offense of
conviction, constitutes per se reversible error.” Caruthers v. State, 235 So.
3d 931, 933 (Fla. 4th DCA 2017). The offense of unnatural and lascivious
act is a permissive lesser included offense of lewd or lascivious
molestation, but battery is one step removed from the offense, whereas
unnatural and lascivious act is two steps removed. Sherrer v. State, 898
So. 2d 260, 261 (Fla. 1st DCA 2005); Fla. Std. Jury Instr. (Crim.) 11.8. As
a result, Appellant was entitled to the battery instruction with respect to
the lewd or lascivious molestation counts, and “[t]he trial court was
without discretion to rule otherwise.” Wong, 212 So. 3d at 361 (citing
Khianthalat II, 974 So. 2d at 361).
Because I would vacate the judgment of guilt and order a new trial on
the lewd or lascivious molestation counts, I respectfully dissent from the
panel’s affirmance on this issue.
* * *
Not final until disposition of timely filed motion for rehearing.
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