JAE-IL BYUN v. STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JAE-IL BYUN, )
)
Appellant, )
)
v. ) Case No. 2D17-3838
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed March 6, 2019.
Appeal from the Circuit Court for Polk
County; J. Kevin Abdoney, Judge.
Cassandra Snapp and Mark L. Horwitz
of Law Offices of Horwitz & Citro, P.A.,
Orlando; and Bennett R. Ford, III, of The
Ford Law Office, P.A., Orlando, for
Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Appellee.
ROTHSTEIN-YOUAKIM, Judge.
After unsuccessfully attempting to dismiss the latter charge on double-
jeopardy grounds, Jae-Il Byun pleaded no contest to unlawfully traveling to meet a
minor, in violation of section 847.0135(4)(a), Florida Statutes (2015), and to attempted
lewd battery, in violation of sections 800.04(4)(a)(1) and 777.04(1), Florida Statutes
(2015). Byun reserved his right to challenge the denial of his motion to dismiss on
appeal from the final judgment, and we now affirm.
Factual and Procedural Background
At approximately 11:00 p.m. on June 2, 2016, Byun began communicating
online with an undercover Polk County Sheriff's detective who was posing as a
fourteen-year-old girl ("the victim"). During the online conversations, Byun offered to
pay the victim to engage in sexual activity, and he arranged to go to her "home." Byun
arrived at the agreed-upon location at approximately 12:30 a.m. on June 3, 2016,
having stopped along the way to get cash and buy condoms. He was arrested after he
knocked on the front door.
Based on this conduct, the State charged Byun in count one with the
unlawful travel (a second-degree felony) and in count two with the attempted lewd
battery (a third-degree felony).1 Byun moved to dismiss count two on double-jeopardy
grounds, arguing that the elements of attempted lewd battery are entirely subsumed
within the elements of unlawful travel. Ultimately, the trial court determined that both
charges had arisen out of the same conduct in a single criminal episode but concluded
that each charge required proof of an element that the other did not:
Traveling to Meet a Minor requires the perpetrator use an
enumerated electronic device or service to facilitate
proscribed communication whereas no such element is
necessary to prove an Attempted Lewd Battery. Further,
Attempted Lewd Battery necessarily requires proof of failure
1The State also initially charged Byun in count three with unlawful use of a
two-way communications device, in violation of section 934.215, Florida Statutes
(2015). The trial court granted Byun's motion to dismiss that count on double-jeopardy
grounds.
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to commit Lewd Battery, or prevention or interception in its
commission. No such requirement exists for Traveling to
Meet a Minor.
Analysis
The constitutional prohibition against double jeopardy does not preclude
multiple punishments for different offenses arising out of the same conduct in a single
criminal episode so long as the legislature intends to authorize separate punishments.
See Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). Here, the parties identify no clear
expression of legislative intent with regard to unlawful travel and attempted lewd battery,
and we have discerned none. Thus, we must determine whether Byun's convictions
and sentences for both offenses violate the Blockburger2 test codified in section
775.021(4), Florida Statutes (2015). See Valdes, 3 So. 3d at 1070. That section
provides:
(a) Whoever, in the course of one criminal transaction or
episode, commits an act or acts which constitute one or
more separate criminal offenses, upon conviction and
adjudication of guilt, shall be sentenced separately for each
criminal offense; and the sentencing judge may order the
sentences to be served concurrently or consecutively. For
the purposes of this subsection, offenses are separate if
each offense requires proof of an element that the other
does not, without regard to the accusatory pleading or the
proof adduced at trial.
(b) The intent of the Legislature is to convict and
sentence for each criminal offense committed in the course
of one criminal episode or transaction and not to allow the
principle of lenity . . . to determine legislative intent.
Exceptions to this rule of construction are:
1. Offenses which require identical
elements of proof.
2Blockburger v. United States, 284 U.S. 299 (1932).
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2. Offenses which are degrees of the
same offense as provided by statute.
3. Offenses which are lesser offenses
the statutory elements of which are subsumed
by the greater offense.
§ 775.021(4).
Under this analysis, we look to elements, not to facts. See Roughton v.
State, 185 So. 3d 1207, 1210 (Fla. 2016) ("[T]he plain language of section
775.021(4)(a)[ ] requires that the elements of the offenses be compared 'without regard
to the accusatory pleading or the proof adduced at trial.' " (emphasis omitted)); State v.
Carpenter, 417 So. 2d 986, 988 (Fla. 1982) ("In applying the Blockburger test the courts
look only to the statutory elements of each offense and not to the actual evidence to be
presented at trial or the facts as alleged in a particular information." (citing Whalen v.
United States, 445 U.S. 684, 694 n.8 (1980))). To establish a violation of section
847.0135(4)(a), the evidence must establish that the defendant (1) knowingly traveled
either within this state, to this state, or from this state, or attempted to do so (2) for the
purpose of engaging in any illegal act described in chapters 794, 800, or 827, or to
otherwise engage in other unlawful sexual conduct (3) with a child or with a person that
the defendant believed to be a child (4) after using a computer or other device capable
of electronic communication (5) to seduce, solicit, lure, or entice the child or person that
the defendant believed to be a child to engage in the illegal act or other unlawful sexual
conduct or to attempt to do so. To establish a violation of section 800.04(4)(a)(1), the
evidence must establish that the defendant "engag[ed] in sexual activity with a person
12 years of age or older but less than 16 years of age." Thus, to establish an attempt to
violate section 800.04(4)(a)(1), the evidence must clearly establish (1) that the
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defendant intended to engage in sexual activity with a person twelve years of age or
older but less than sixteen years of age and (2) that the defendant committed an overt
act toward doing so. See § 777.04(1).
What is not so clear is whether, as the trial court concluded, attempt also
requires proof of a third element: that the defendant failed to successfully complete the
crime. See, e.g., Fla. Std. Jury Instr. (Crim.) 5.1 (requiring jury to find that defendant
"would have committed the crime except that a. someone prevented [him] [her] from
committing the crime of (crime attempted) . . . [or] b. [he] [she] failed"); Duclos-Lasnier v.
State, 192 So. 3d 1234, 1238 (Fla. 2d DCA 2016) (stating that attempt has three
elements, one of which being that the defendant failed to successfully complete the
crime (quoting Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA 2010))); Harris v. State,
76 So. 3d 1080, 1082-83 (Fla. 2d DCA 2011) ("The evidence here did not support and
the jury obviously did not find that someone prevented Harris from committing the
robbery in count one or that he failed to commit the robbery. Therefore, the jury did not
find beyond a reasonable doubt that Harris committed an attempted robbery."); Barrios
v. State, 75 So. 3d 374, 377 (Fla. 4th DCA 2011) ("Criminal attempt requires three
elements: the intent to commit a crime, an overt act towards its commission, and failure
to successfully complete the crime." (quoting Bist, 35 So. 3d at 941)); Bist, 35 So. 3d at
941 (same (citing Morehead v. State, 556 So. 2d 523, 524 (Fla. 5th DCA 1990))). But
see, e.g., Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988) ("Essentially, we have
required the state to prove two general elements to establish an attempt: a specific
intent to commit a particular crime, and an overt act toward its commission." (footnote
omitted)); State v. Coker, 452 So. 2d 1135, 1136 (Fla. 2d DCA 1984) ("An attempt to
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commit a crime consists of two essential elements: a specific intent to commit the
crime, and an overt act, beyond mere preparation, done toward its commission. The
intent and the act must be such that they would have resulted, but for the interference of
some cause preventing the carrying out of the intent, in the completed commission of
the crime."); Berger v. State, 259 So. 3d 933, 934 (Fla. 5th DCA 2018) ("Thus, 'the two
elements comprising an attempt to commit a crime are (1) a specific intent to commit
the crime and (2) an overt act done toward its commission that is beyond mere
preparation.' " (quoting Mizner v. State, 154 So. 3d 391, 397 (Fla. 2d DCA 2014)));
State v. Ortiz, 766 So. 2d 1137, 1143 (Fla. 3d DCA 2000) (" 'By its nature, attempt
occupies the conceptual area between the non-commission of the greater offense and
the completion of the greater offense itself.' The two necessary elements for an attempt
to commit a crime [are]: (1) a specific intent to commit a particular crime and (2) an
overt act toward its commission." (first quoting Wilson v. State, 622 So. 2d 31, 36 (Fla.
1st DCA 1993), approved, 635 So. 2d 16 (Fla. 1994); then citing Geldreich v. State, 763
So. 2d 1114, 1118 (Fla. 4th DCA 1999))); Geldreich, 763 So. 2d at 1118 ("Two
necessary elements establish an attempt to commit a crime: 'a specific intent to commit
a particular crime, and an overt act toward its commission.' " (quoting State v. Walker,
705 So. 2d 589, 591 (Fla. 4th DCA 1997))). It is to this question that Byun and the State
devote the bulk of their attention and argument on appeal.
But it is a question that we need not resolve today, because in their
singular focus, the parties have wholly failed to apprehend, let alone address, the
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significance of a much clearer difference between the elements of the two offenses.3
Unlawful travel requires proof that the child victim is less than 18 years old. See §
847.001(3) (defining "child pornography" as "any image depicting a minor engaged in
sexual conduct"); § 847.001(8) (defining "minor" as "any person under the age of 18
years"); Fla. Std. Jury Instr. (Crim.) 11.17(c) (defining "child" for purposes of section
847.0135(4)(a) as "any person, whose identity is known or unknown, less than 18 years
of age"); cf. § 847.001(1) (defining "adult" as "a person 18 years of age or older").
Attempted lewd battery, however, requires proof that the intended child victim is at least
twelve years' old but less than sixteen years' old. § 800.04(4)(a)(1); see also Glover v.
State, 863 So. 2d 236, 238 (Fla. 2003) (holding that age of the victim is an essential
element of capital sexual battery).
Accordingly, attempted lewd battery has an element that unlawful travel
does not have,4 and Byun's argument that attempted lewd battery is subsumed within
unlawful travel, i.e., that every unlawful travel will necessarily and inevitably be
chargeable as an attempted lewd battery, fails. See Aiken v. State, 742 So. 2d 811,
3The court brought this difference to the parties' attention for the first time
at oral argument, and we were not foreclosed from doing so despite that no one had
ever raised it previously: double jeopardy claims based on undisputed facts present
pure questions of law, Graham v. State, 207 So. 3d 135, 137 (Fla. 2016), and we may
affirm the trial court for any reason that the record supports, cf. Shands Teaching Hosp.
& Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So. 3d 204, 212 (Fla. 2012) ("[A]n appellate
court should affirm a trial court that 'reaches the right result, but for the wrong reasons' if
there is 'support for the alternative theory or principle of law in the record before the trial
court.' " (quoting Robertson v. State, 829 So. 2d 901, 906-07 (Fla. 2002))).
That said, we note and appreciate defense counsel Ford's efforts at oral
argument to balance his duty to zealously represent his client with his duty of candor to
the court when confronted with this basis for affirmance for the first time.
4And, obviously, unlawful travel has elements that attempted lewd battery
does not have.
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812 (Fla. 2d DCA 1999) (en banc) (holding that only necessarily lesser included
offenses are subsumed pursuant to section 775.021(4)(b)(3) and receding from
language in a prior case "which states that a defendant may not be convicted of a
permissive lesser included offense when he has been convicted of the greater offense,
with both offenses arising out of the same criminal act" (citing State v. McCloud, 577 So.
2d 939, 941 (Fla. 1991))); State v. Sholl, 18 So. 3d 1158, 1163 (Fla. 1st DCA 2009)
("Nor can it be argued that lewd or lascivious exhibition is a necessarily included lesser
offense of transmitting material harmful to a minor via electronic device. . . . [T]he
transmission charge requires the victim to be under 18, while the exhibition charge
requires the victim to be under 16. Therefore, if a defendant transmits material harmful
to a minor via electronic device to a 17-year old victim, he/she may be charged under
the transmissions statute but not the exhibition statute, as the victim is over 16 years of
age."). Indeed, had Byun's putative victim been sixteen years' old, Byun would still be
guilty of unlawful travel,5 but, as a matter of law, he could not be guilty of attempted
lewd battery because of the age requirement. Byun's conduct, therefore, constituted
two separate offenses that the legislature intended be punished separately, and the trial
court correctly denied his motion to dismiss on double-jeopardy grounds.
Conclusion
Applying the Blockburger "same elements" test, we hold that Byun's
convictions for unlawful travel under section 847.0135(4)(a) and for attempted lewd
5Specifically,
it would have been a second-degree felony for Byun, who
was twenty-four years' old at the time of the offense, to have engaged in sexual activity
with a sixteen year old. See § 794.05(1), Fla. Stat. (2015).
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battery under sections 800.04(4)(a)(1) and 777.04(1) do not violate the prohibition
against double jeopardy. Accordingly, we affirm.
Affirmed.
SILBERMAN and VILLANTI, JJ., Concur.
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