Donald Vernon Kelley v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DONALD VERNON KELLEY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-1950
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 6, 2016.
An appeal from the Circuit Court for Okaloosa County.
Michael Flowers, Judge.
Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney
General, and Matthew Pavese, Assistant Attorney General, Tallahassee, for
Appellee.
BEVERLY, THOMAS M., Associate Judge.
Among a bevy of other offenses, the State charged Appellant with Lewd or
Lascivious Battery (victim 12 or older, but less than 16) and two counts of Lewd or
Lascivious Conduct (victim under 16). At trial, Appellant requested the court
instruct the jury on the permissive lesser-included offense of Unnatural and
Lascivious Act (Unnatural). The court declined; and it did not instruct the jury on
any other lesser-included offense. Because the State’s charging document alleged
the statutory elements of the permissive lesser-included offense and the court did
not instruct the jury on any other lesser-included offenses, we are constrained to
find reversible error.
A trial court, if requested, must instruct a jury on a permissive lesser-
included offense if “(1) the indictment or information . . . allege[s] all the statutory
elements of the permissive lesser included offense; and (2) there [is] some
evidence adduced at trial establishing all of these elements.” Horn v. State, 120
So. 3d 1, 2 (Fla. 1st DCA 2012). Unnatural requires the State prove (1) the
defendant did an act that (2) was unnatural and lascivious. See § 800.02, Fla. Stat.;
Fla. St. Jury Instr. (Crim.) 11.8. Unnatural means “not in accordance with nature
or with normal feelings or behavior.” Fla. St. Jury Instr. (Crim.) 11.8.
In counts 2, 5, and 6 the State charged unlawful, intentional, lewd or
lascivious sexual conduct (intercourse, oral sex, and touching) between a 58-year-
old man and 12- or 13-year-old children victims. Adults having lascivious sexual
interaction with children is simply not natural or in accord with normal feelings or
behavior. See Horn, 120 So. 3d at 2; Williams v. State, 627 So. 2d 1279, 1280-81
(Fla. 1st DCA 1993); accord Knighton v. State, 193 So. 3d 115, 117 (Fla. 4th DCA
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2016) (adopting the Fifth District’s reasoning and finding “sexual intercourse
between an adult and child constitutes an unnatural and lascivious act” sufficient to
warrant the lesser included); Funiciello v. State, 179 So. 3d 388, 389 (Fla. 5th
DCA 2015). Thus, the trial court erred by not instructing the jury because
Appellant requested the instruction, the Information alleged the necessary elements
by charging unlawful, lascivious, adult-child sexual interactions, and the facts at
trial established the elements. 1
Because the trial court did not instruct the jury on any other lesser-included
offenses,2 we cannot say beyond a reasonable doubt that the failure to instruct the
jury on Unnatural was harmless. Compare Sherrer v. State, 898 So. 2d 260, 261-
62 (Fla. 1st DCA 2005) (finding failure to give Unnatural instruction was harmless
error because court instructed on battery—an intervening step between lewd and
lascivious molestation and Unnatural), and Pryor v. State, 755 So. 2d 155, 156
(Fla. 4th DCA 2000) (finding failure to give Unnatural instruction was harmless
error because court instructed jury on attempt, assault, and battery), with Horn, 120
1
We are unpersuaded by the State’s insistence the word “unnatural” must
explicitly appear in an information or the act is not unnatural. It does not take an
inference to conclude unlawful, lewd or lascivious, sexual interaction between a
58-year-old and a 12-year-old is not in accord normal human behavior. Compare
State v. Von Deck, 607 So. 2d 1388, 1389-90 (Fla. 1992) (allegation of attempted
premeditated murder by shooting does not—by itself—mean victim was put in
fear).
2
The crimes of lewd or lascivious battery and lewd or lascivious conduct
have four lesser-included offenses: attempt, assault, battery, and unnatural and
lascivious act. Fla. Std. Jury Instr. (Crim.) 11.10(a), (d).
3
So. 3d at 2-3 (explaining with no fair opportunity to exercise pardon power, the
Court could not say beyond a reasonable doubt error was harmless), and McKiver
v. State, 55 So. 3d 646, 650 (Fla. 1st DCA 2011).
Accordingly, we are constrained to find reversible error. We REVERSE
Appellant’s convictions and sentences as to only counts 2, 5, and 6, and REMAND
for a new trial on those three counts. We reject Appellant’s other argument on
appeal without comment, and AFFIRM his convictions and sentences on every
other count—including his life sentence.
AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.
BILBREY and M.K. THOMAS, JJ., CONCUR.
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