Reggie Eugene Allen v. State of Florida

Supreme Court of Florida
____________
No. SC20-1053
____________
REGGIE EUGENE ALLEN,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
September 2, 2021
COURIEL, J.
We have for review the decision in Allen v. State, 298 So. 3d
704, 707 (Fla. 1st DCA 2020), in which the First District Court of
Appeal certified the following question of great public importance:
IS THE SCHEDULE OF LESSER INCLUDED OFFENSES
PROMULGATED BY THE FLORIDA SUPREME COURT IN
2018 IN ERROR IN CLASSIFYING SEXUAL BATTERY
(§ 794.011(5)) AS A NECESSARILY LESSER INCLUDED
OFFENSE OF CAPITAL SEXUAL BATTERY
(§ 794.011(2)(a), Fla. Stat. (2018))?
We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The answer
to the certified question is yes. The schedule incorrectly classifies
sexual battery as a necessarily lesser included offense of capital
sexual battery.
I
Reggie Eugene Allen was charged with three counts of sexual
battery and one count of lewd or lascivious exhibition, all relating to
incidents that took place between 2010 and 2016. Allen’s victim,
T.W., is the daughter of his ex-girlfriend. T.W. was born on
March 25, 2001, and was therefore between nine years old and
fifteen years old during the alleged incidents. At Allen’s trial, she
was seventeen years old, and testified to events that took place
when she was between nine and thirteen years old.
Without fixing a precise date to any individual episode of
abuse, T.W. testified that Allen put his mouth on her vagina over
twenty times. Three incidents stood out to her. Each occurred at a
different location in Bay County; T.W. and her mother moved
several times during the years relevant to this case. T.W. testified
that she lived at a home on Williams Avenue until she was eleven,
when she moved to a development called Aztec Apartments. T.W.
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testified that she lived there until she was thirteen, when she moved
to a home on Sims Avenue.1
The first incident occurred when T.W. was nine, at her home
on Williams Avenue. 2 T.W. testified that she and Allen were
watching television in the living room when Allen started kissing
her and rubbing her body. Allen rubbed her chest, touched her
vagina, performed oral sex on her and then masturbated until
1. At trial, T.W.’s mother also testified, albeit tentatively, to a
timeline detailing when she and T.W. moved between homes. She
testified that she lived at Edgewood apartments until “2010
maybe[,]” moved to Aztec Apartments in 2010 when T.W. was “10 or
11[,]” moved from Aztec to Williams Avenue in “maybe 14” when
T.W. “would have been about 15 or 16[,]” then moved to Sims in
2015, where the two of them stayed for “about three years.” T.W.’s
mother also testified that T.W. confronted her about Allen when the
two were living on Sims Avenue and T.W. was either thirteen or
fourteen.
2. T.W. testified that the day after informing police that Allen
had assaulted her, she spoke to an investigator on the Child
Protection Team at the Child Advocacy Center. The Child Protection
Team is specially trained to interview children by asking non-
leading questions and eliciting uncoerced responses. T.W. testified
that, while speaking to the social worker, she misspoke and
confused the times when she lived at Williams Avenue and at Aztec
Apartments. T.W. also testified that she misspoke in a deposition
taken by the defense, during which she testified that she moved to
Aztec Apartments when she was ten. T.W. clarified her timeline at
trial, testifying that she was nine and ten years of age at Williams
Avenue, eleven through twelve at Aztec Apartments, and thirteen
through fourteen at Sims Avenue.
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ejaculation. Then he told T.W. not to tell her mother what had
happened.
T.W. testified that the second incident occurred when she was
eleven, on the day she and her family moved to the Aztec
Apartments development. T.W. and Allen were alone upstairs when
Allen told her to lie down so that he could perform oral sex on her,
then did so. T.W. recalled that she started shaking and crying,
telling Allen she was scared. T.W. testified that her mother was still
at the Williams Avenue residence when the incident occurred.
The third incident occurred when T.W. was thirteen and living
at the Sims Avenue address. T.W. testified that she was lying on
her bed in her room when Allen walked in, shut the door, and
pulled down her pants. T.W. testified that Allen placed his mouth
on her vagina and performed oral sex on her. At some point, T.W.’s
mother entered the room and Allen threw a blanket over T.W.,
pretending that he had been “play-fighting” with her.
T.W. testified that, as to the other times Allen had performed
oral sex on her, she could not recall the month, season, weather, or
what time of year the incidents took place. She was eleven (so, in
2012 or early 2013) when she first told her mother about all this.
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When T.W.’s mother confronted Allen soon after, he denied
everything. He moved out of the house on Williams Avenue shortly
thereafter, but eventually moved back in when T.W. and her mother
moved to the Aztec Apartments.
In 2017, a then-sixteen-year-old T.W. and her mother had a
fight about T.W.’s close relationship with her half-brother. During
the fight, police arrived and T.W. told them about Allen’s actions.
Again Allen denied all these allegations, this time to the police.
Nonetheless, on November 13, 2017, Allen was charged by
information with four criminal counts, covering three distinct time
periods. In count I, the only count of conviction Allen appealed to
the First District, he was charged with committing sexual battery on
a person less than twelve years of age—capital sexual battery—on
or between March 25, 2010, and March 24, 2012. Allen did not
dispute at trial and does not dispute now that, during this time,
T.W. was between nine and ten years old.
Allen took the stand at trial. He testified that he never put his
mouth on T.W.’s genitals, masturbated in her presence, or
interacted with her inappropriately. Allen testified that the living
room at Williams Street had no television, contradicting T.W.’s
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testimony that Allen assaulted her while the two were watching
television. Allen also testified that he was never alone with T.W. at
Aztec Apartments on the day he helped T.W.’s mother move,
contradicting T.W.’s testimony that he assaulted her while the two
were alone and T.W.’s mother was at the former residence.
At the conclusion of the evidence at trial, Allen requested that,
as to count I, the jury be instructed on sexual battery as a
necessarily lesser included offense of capital sexual battery. At the
time, the Schedule of Lesser Included Offenses included in the
Florida Standard Jury Instructions in fact listed sexual battery as a
necessarily lesser included offense of capital sexual battery—
otherwise known as a “category one” lesser included offense. 3 The
State argued that it was illogical to provide such an instruction,
because sexual battery applies to a victim twelve years and older,
and it was undisputed that T.W. was nine or ten during the dates
3. At the time of Allen’s trial, sexual battery was listed as a
category one, necessarily included lesser offense of capital sexual
battery. After the First District’s decision in Allen v. State, however,
the Supreme Court Committee on Standard Jury Instructions
amended the standard jury instruction for capital sexual battery,
moving sexual battery to a category two, permissive lesser included
offense. Fla. Std. Jury Instr. (Crim.) 11.1 (2020).
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alleged for count I. The trial court agreed and denied Allen’s
request, exercising its discretion to determine which instructions to
give based on the facts adduced at trial. The trial court further
explained that it had the power to determine what constituted a
necessarily lesser included offense.
The trial court instructed the jury as follows: “As to Count I,
sexual battery, to prove the crime of sexual battery on a person less
than 12 years of age, the State must prove the following three
elements beyond a reasonable doubt: one, Reggie Eugene Allen
committed an act on [T.W.] in which the sexual organ of [T.W.] had
union with the mouth of Reggie Eugene Allen; and two, at the time
of the offense, [T.W.] was less than 12 years of age; and three, at the
time of the offense, Reggie Eugene Allen was 18 years of age or
older.” The court explained that if the jury was not convinced that
Allen had committed capital sexual battery, “there may be evidence
that he committed other acts that would constitute a lesser
included crime.” The court directed, “[I]f you decide that the main
accusation has not been proved beyond a reasonable doubt, you
will next need to decide if the defendant is guilty of any lesser
included crime.” The jury was then instructed as to two other
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lesser included offenses: lewd or lascivious battery on a victim less
than sixteen years of age, and battery.
As to count III, which charged Allen with capital sexual battery
on or between March 25, 2012, and March 24, 2014, 4 the court
instructed the jury on sexual battery, lewd or lascivious battery,
and battery as lesser included offenses of capital sexual battery.
The jury found Allen guilty as charged on all four counts.
Allen appealed, arguing that the trial court erred in denying his
motion to instruct the jury on sexual battery as a category one,
necessarily lesser included offense of capital sexual battery. The
First District affirmed and certified to this Court the question we
have before us.
II
Because T.W.’s age is undisputed, the First District’s decision
is purely a question of law, which we review de novo. Khianthalat v.
State, 974 So. 2d 359, 360 (Fla. 2008) (“Because this matter
involves a legal determination based on undisputed facts, this
Court’s standard of review is de novo.”). The trial court’s rulings on
4. It is undisputed that T.W. was between eleven and twelve
during this time period.
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jury instructions generally get the benefit of the doubt. See State v.
Bryan, 287 So. 2d 73, 75 (Fla. 1973) (“[W]e recognized the
importance of the trial judge on the scene who has the ‘feel’ of the
case, the psychology of its movement through trial and what
aspects appear from subtle inflections and overtones to be
important in the jury’s mind and for its decision. That is one of the
reasons that a trial court’s decision has historically had the
presumption of correctness on appeal.”). As it happens, in this
case, at trial, defense counsel, the prosecutor, the trial court, and
the version of the jury instructions used all referred to an incorrect
version of the sexual battery statute, section 794.011(5).5 Our
5. Each referred to the version of the statute in effect at the
time of Allen’s trial in 2019; however, “it is firmly established law
that the statutes in effect at the time of commission of a crime
control as to the offenses for which the perpetrator can be
convicted, as well as the punishments which may be imposed.”
State v. Smith, 547 So. 2d 613, 616 (Fla. 1989). The sexual battery
statute in effect during the time period covered by count I (March
25, 2010, to March 24, 2012) applied to any victim age twelve or
older. The post-2014 sexual battery statute contains two classes of
victim: those twelve years of age and older but younger than
eighteen, and those eighteen years of age and older. Regardless of
which version of the statute is used, a charge of sexual battery
applies only to a victim twelve or older at the time of the alleged
offense, and it is undisputed that T.W. was younger than twelve
during the time period covered by count I.
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consideration of whether sexual battery is a necessarily lesser
included offense of capital sexual battery is in any event the same,
whatever version of the statute is used.
A
A lesser included offense is one whose elements are entirely
contained within the elements of another, greater, offense. Sanders
v. State, 944 So. 2d 203, 206 (Fla. 2006). To determine whether
and how an offense qualifies as a lesser included offense, “this
Court’s precedent calls for a comparison of statutory elements.”
Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006) (holding that, for
double jeopardy analysis, grand theft is a lesser included offense of
organized fraud because all the statutory elements of grand theft
are subsumed by the statutory elements of organized fraud). Lesser
included offenses fall within two categories: necessary (or
necessarily—we have said it both ways 6) and permissive. Sanders,
6. Compare Coicou v. State, 39 So. 3d 237, 242 (Fla. 2010)
(“The question presented here requires us to determine whether
attempted second-degree murder is either a necessary or permissive
lesser-included offense of attempted first-degree felony murder.”)
with State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986) (“A
‘necessarily lesser included offense’ is, as the name implies, a lesser
offense that is always included in the major offense.”).
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944 So. 2d at 206. “Necessarily lesser included offenses are those
offenses in which the statutory elements[ 7] of the lesser included
offense are always subsumed within those of the charged offense.”
Id. In other words, every element of the lesser offense is always also
an element of the greater. See, e.g., State v. Terry, 336 So. 2d 65,
67 (Fla. 1976) (explaining that elements are subsumed when “the
burden of proof of the major crime cannot be discharged[] without
proving the lesser crime as an essential link in the chain of
evidence”). If a defendant is found to have committed all the
elements of a greater crime, he has necessarily committed all the
elements of a lesser crime, because “the latter is an inherent
component of the former.” Roberts v. State, 242 So. 3d 296, 299
(Fla. 2018) (quoting State v. Weller, 590 So. 2d 923, 926 (Fla.
1991)).
7. An element is a component of a charged offense that a jury
must find proven beyond a reasonable doubt to convict a defendant.
See In re Winship, 397 U.S. 358, 363 (1970) (quoting Davis v. United
States, 160 U.S. 469, 493 (1895) (“No man should be deprived of his
life under the forms of law unless the jurors who try him are able,
upon their consciences, to say that the evidence before them is
sufficient to show beyond a reasonable doubt the existence of every
fact necessary to constitute the crime charged.”)).
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For example, theft and robbery both consist of the taking of
property of another with intent to temporarily or permanently
deprive that person of the property. § 812.13, Fla. Stat. (2020);
§ 812.014, Fla. Stat. (2020). An unlawful taking with intent to
deprive is sufficient to prove larceny. McCloud v. State, 335 So. 2d
257, 258 (Fla. 1976). Robbery requires, in addition, the unlawful
taking to occur by “use of force, violence, assault, or putting in
fear.” § 812.13(1), Fla. Stat. (2020). We have explained that “[a]ny
degree of force suffices to convert larceny into a robbery. Where no
force is exerted upon the victim’s person, as in the case of a
pickpocket, only a larceny is committed.” McCloud, 335 So. 2d. at
258-59; see also Terry, 336 So. 2d at 67 (holding that to prove
beyond a reasonable doubt that a defendant committed a robbery,
the state must necessarily also prove larceny, because every
robbery necessarily includes a larceny). So, larceny is a necessarily
lesser included offense of robbery. State v. Bruns, 429 So. 2d 307,
310 (Fla. 1983) (“Larceny is necessarily included in the crime of
robbery.”).
Similarly, “[a]ttemped manslaughter by act is a necessarily
lesser included offense of attempted second-degree murder because
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attempted second-degree murder contains all of the elements of the
crime of attempted manslaughter by act.” Walton v. State, 208 So.
3d 60, 64 (Fla. 2016). Likewise, “[t]he elements of manslaughter are
always subsumed within the elements of second-degree felony
murder because both offenses require some action by the defendant
that ultimately causes the victim’s death.” Dean v. State, 230 So.
3d 420, 423 (Fla. 2017). Second-degree felony murder additionally
requires that a defendant have committed an enumerated felony.
Id.A permissive, or “category two,” lesser included offense exists
when “the two 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.” Sanders, 944 So. 2d at 206(alteration in original) (quoting State v. Weller, 590 So. 2d 923, 925
n.2 (Fla. 1991)). It is, in other words, at least in part a function of
how a case is charged and what facts are alleged that results in two
offenses being related to each other this way.
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B
The rule that a jury be allowed to find a defendant guilty of a
lesser included offense “originally developed as an aid to the
prosecution in cases in which the proof failed to establish some
element of the crime charged.” Beck v. Alabama, 447 U.S. 625, 633
(1980); see also Keeble v. United States, 412 U.S. 205, 208 (1973)
(“[T]he lesser included offense doctrine developed at common law to
assist the prosecution in cases where the evidence failed to
establish some element of the offense originally charged[.]”). But
courts have long recognized that a lesser included offense “can also
be beneficial to the defendant because it affords the jury a less
drastic alternative than the choice between conviction of the offense
charged and acquittal.” Beck, 447 U.S. at 633. As the United
States Supreme Court has explained, “[w]here one of the elements
of the offense charged remains in doubt, but the defendant is
plainly guilty of some offense, the jury is likely to resolve its doubts
in favor of conviction.” Id. at 634. Allowing a “third option” to
convict a defendant of a lesser included offense “ensures that the
jury will accord the defendant the full benefit of the reasonable-
doubt standard.” Id.- 14 -
State courts, including ours, “have unanimously held that a
defendant is entitled to a lesser included offense instruction where
the evidence warrants it.” Id. at 636; see also Terry, 336 So. 2d at
67 (“Therefore, if the trial judge . . . found sufficient evidence to
instruct the jury on the major offense of assault with intent to
commit murder in the first degree, he should have instructed the
jury on the necessarily included lesser offense of bare assault.”).
We have long required an instruction for any lesser offense “all the
elements of which are alleged in the accusatory pleadings and
supported by the evidence adduced at trial.” State v. Weller, 590
So. 2d 923, 926 (Fla. 1991). We have also held that, “[o]nce the
judge determines that [an] offense is a necessarily lesser included
offense, an instruction must be given.” State v. Wimberly, 498 So.
2d 929, 932 (Fla. 1986). Under Florida Rule of Criminal Procedure
3.510(b), as interpreted by our Court in Wimberly, a trial judge “has
no discretion in whether to instruct the jury on a necessarily lesser
included offense.” Knight v. State, 286 So. 3d 147, 154 (Fla. 2019)
(quoting Wimberly, 498 So. 2d at 932).
Our standard jury instructions and the schedule of lesser
included offenses are promulgated and updated by the Supreme
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Court Committee on Standard Jury Instructions in Criminal Cases,
created by this Court. See In re Amendments to Fla. Rules of Jud.
Admin., Fla. Rules of Civ. Proc., & Fla. Rules of Crim. Proc.—
Standard Jury Instructions, 45 Fla. L. Weekly S88, S88 (Fla. Mar. 5,
2020). The Committee is “authorized to develop and approve, by
two-thirds vote, new and amended standard jury instructions to be
published for use.” Id. at S88. Prior to the recent change, the
Committee prepared new and amended standard jury instructions,
and “report[ed] those instruction changes to the Court, which, in
turn, authorize[d] the instructions for publication and use in a
written opinion.” Id. at S88. In cutting the Court’s involvement in
development and authorization of standard jury instructions, we
recognized the two-step process as cumbersome, and that “some
wrongly believe that by authorizing for publication and use
standard instructions prepared by the committees, the Court has
ruled on the legal correctness of those instructions.” Id. at S88.
Before our work through the Committee, Florida courts were
not restricted to two classes of lesser included offenses. It was once
our law that lesser included offenses were divided into four
categories: (1) crimes divisible into degrees, (2) attempts to commit
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offenses, (3) attempts necessarily included in the offense charged,
and (4) offenses which may or may not be included in the offenses
charged, depending on the accusatory pleading and the evidence.
Brown v. State, 206 So. 2d 377, 381 (Fla. 1968). Our decision in
Brown, however, “required instructions to the jury for offenses for
which there [was] no support in the evidence and no argument by
counsel, and as a result . . . caused jury confusion.” In re Use by
Trial Cts. of Standard Jury Instructions in Crim. Cases, 431 So. 2d
594, 597 (Fla. 1981). Nine years after Brown, “this Court requested
the committee to revise and modify the instructions to make them
more easily understood by citizen jurors, to consider the approval of
instructions and a handbook for a grand jury, and to establish a
schedule of lesser included offenses.” Id. at 595. The Committee
recommended consolidating the Brown categories into two groups:
(1) offenses necessarily included in the offense charged, depending
on the accusatory pleading and the evidence, including all attempts
and some lesser degrees of offenses, and (2) offenses which may or
may not be included in the offense charged, depending on the
accusatory pleading and the evidence, including all attempts and
some lesser degrees of attempts. In re Use by Trial Cts. of Standard
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Jury Instructions in Crim. Cases, 431 So. 2d at 596. The Committee
also created a schedule of lesser included offenses which reflected
the two new categories. Id. at 597. We adopted the Committee’s
proposal, explaining that “[t]he schedule of lesser included offenses
is designed to be as complete a listing as possible for each criminal
offense.” Id. The schedule has always been intended to be “an
authoritative compilation upon which a trial judge should be able to
confidently rely.” Id.Of course, “the Schedule of Lesser Included Offenses included
in the Florida Standard Jury Instructions is not the final authority
on lesser included offenses.” Williams v. State, 957 So. 2d 595, 599
(Fla. 2007) (rejecting a defendant’s objection to an instruction on a
lesser offense on the basis that it was missing from the schedule of
lesser included offenses). Trial courts have the “responsibility to
determine and properly instruct the jury on the prevailing law.”
Standard Jury Instructions in Crim. Cases (95-1), 657 So. 2d 1152,
1153 (Fla. 1995). To fulfill this responsibility, “[t]he standard jury
instructions appearing on The Florida Bar’s website may be used by
trial judges in instructing the jury in every trial to the extent that
the instructions are applicable,” but if the court “determines that an
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applicable standard jury instruction is erroneous or inadequate . . .
the judge shall modify the standard instruction or give such other
instruction as the trial judge determines to be necessary to instruct
the jury accurately and sufficiently on the circumstances of the
case.” Fla. R. Gen. Prac. & Jud. Admin. 2.580. 8
C
Applying these principles to the question before us, it becomes
clear that sexual battery is not a necessarily lesser included offense
of capital sexual battery, because the elements of sexual battery are
in fact never subsumed within the elements of capital sexual
battery.
A sexual battery charge requires that a victim be twelve or
older, whereas a capital sexual battery charge requires that a victim
be younger than twelve. Because the elements of sexual battery,
the lesser offense, are not “always subsumed within those of the
8. Our amendment to rule 2.580, Standard Jury Instructions,
further adds, “If the trial judge modifies a standard jury instruction
or gives another instruction, upon timely objection to the
instruction, the trial judge shall state on the record or in a separate
order the respect in which the judge finds the standard instruction
erroneous or inadequate or confusing and the legal basis for varying
from the standard instruction.” Fla. R. Gen. Prac. & Jud. Admin.
2.580.
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charged offense,” capital sexual battery, it was incorrect for the
Supreme Court Committee on Standard Instructions in Criminal
Cases to declare sexual battery as a category one necessarily lesser
included offense of capital sexual battery. Sanders, 944 So. 2d at
206.
Nor, in this case, does sexual battery qualify as a permissive
lesser included offense as to count I. It takes two steps to reach
this conclusion. We took the first step above: when we compare the
elements of the offenses, we find that the elements of the lesser
offense are not entirely contained within the elements of the greater,
because a victim cannot simultaneously be under the age of twelve,
as required for one offense, and over that age, as required for the
other. But, and here is the second step, none of the facts alleged or
evidence introduced at trial, including the ambiguities in the
timeline of the alleged crimes, rebut the undisputed evidence that
T.W. was younger than twelve during the period covered by count I.
Because count I only covered the time before T.W. turned
twelve, it was impossible for the jury to find that Allen had
committed sexual battery in that count of conviction, as at no point
during the time covered in count I was the victim twelve or older.
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Instruction on noncapital sexual battery as a permissive lesser
included offense was, however, acceptable as to count III, which
charged Allen with capital sexual battery. The fact-specific element
of the permissive lesser offense was whether T.W. was twelve at the
time of the sexual battery in this count. Count III covered a period
between when T.W. was eleven and almost thirteen years old. To
find Allen guilty, the jury was required to find beyond a reasonable
doubt that Allen had battered T.W. when she was eleven, twelve, or
both. The charging document alleged that Allen unlawfully
committed sexual battery on “a person less than twelve years of
age,” and while the state introduced evidence to support the
allegation that Allen battered T.W. when she was eleven, a
reasonable jury could have also found that the incident had
occurred when she was twelve. Therefore, while the trial judge
might have given the same instruction as to counts I and III, it was
no abuse of discretion to instruct the jury on sexual battery as a
lesser included offense of capital sexual battery as to count III, for
the jury may have found that Allen had assaulted T.W. when she
was twelve, but not when she was eleven.
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D
Our conclusion today squares with the plain meaning of
section 794.011, Florida Statutes (2018). Florida’s sexual battery
statute provides that someone eighteen years of age or older who
commits sexual battery upon a person less than twelve years of age
commits a capital felony. § 794.011(2)(a), Fla. Stat. (2018).
Conversely, the statute provides that someone eighteen years of age
or older who commits sexual battery upon a victim eighteen years of
age or older commits a felony of the second degree. § 794.011(5)(a),
Fla. Stat. (2018). The structure and language of the statute mean
that those who commit sexual battery upon a person under the age
of twelve are treated more harshly than those who commit the same
crime upon persons not in that statutorily prescribed age group. In
that respect, this provision is similar to Florida’s battery statute,
which makes it a third-degree felony to commit battery upon a
victim sixty-five years old or older what would be misdemeanor
battery on a younger adult. § 784.08(2)(c), Fla. Stat. (2020).
The special protections that the statutes afford to younger
children who are sexually battered and older adults who are victims
of simple battery illustrate the problem with Allen’s argument that,
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like the value of property stolen in a theft charge 9 or the quantity of
narcotics trafficked, 10 age is a one-way street: the older you are, the
less culpable a perpetrator is for a battery upon you. It is not so.
The statute at issue here does not present a gradient of culpability,
but a binary choice; for its purposes, either a victim is under twelve,
or he or she is not. Here the law offers special protection to the
young, elsewhere to the old. We have upheld the permissibility of
that legislative choice over the years. See Adaway v. State, 902 So.
2d 746, 751 (Fla. 2005) (sexual battery is “especially harmful to
young victims” and “[e]ven when [child sexual abuse] leaves no
physical scars, it can create emotional damage that lasts a
lifetime.”) (quoting Gibson v. State, 721 So. 2d 363, 368 (Fla. 2d
DCA 1998)).
III
Because sexual battery is not a necessarily lesser included
offense of capital sexual battery, we answer the certified question in
the affirmative and approve the decision of the First District Court
of Appeal.
9. See § 812.014(2), Fla. Stat. (2020).
10. See § 893.135, Fla. Stat. (2020).
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It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LABARGA, J., concurring.
While I agree that the crime of sexual battery is not a
necessarily lesser included offense of capital sexual battery, I write
to underscore that in a case where the age of the victim is in
dispute, the defendant would be entitled to a jury instruction on
sexual battery as a permissive lesser included offense.
Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance
First District - Case No. 1D19-1315
(Bay County)
Jessica Yeary, Public Defender, and Victor Holder, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,
for Petitioner
Ashley Moody, Attorney General, and David Welch, Assistant
Attorney General, Tallahassee, Florida,
for Respondent
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