Opinion
No. 92-648.
August 13, 1993. Rehearing Denied September 2, 1993.
Appeal from the Circuit Court, Marion County, Jack Singbush, J.
Ronald E. Fox, Ronald E. Fox, P.A., Umatilla, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
John W. Reynolds appeals his convictions and sentences based upon a six-count information charging him with lewd and lascivious assaults upon three girls under the age of sixteen years, pursuant to section 800.04(1), Florida Statutes (1991). We reverse in part and remand.
Appellant raises eight issues on appeal, only two of which warrant discussion. Reynolds contends that the evidence was insufficient to support convictions for lewd and lascivious assaults and that, by erroneously including sentencing guidelines scoresheet points for victim injury, the trial court imposed a departure sentence without contemporaneous written reasons for the departure.
Appellant argues that the evidence was insufficient to support the six convictions for violations of section 800.04(1) because the state failed in each count to establish that the appellant "assaulted" his victims. Five of the six counts against the appellant alleged that the appellant "did knowingly commit a lewd or lascivious assault . . . by handling or fondling" either the vagina, the breast, or the buttocks of his child victims. Because of the use of the word "assault" in the information, the appellant asserts the state was charging him with an assault — i.e., a threat to do violence to another, coupled with the apparent ability to do so, and doing an act which creates in the other a well-founded fear that such violence is imminent — rather than a handling or fondling.
In its order denying a new trial, the trial court rejected appellant's argument that the evidence failed to show appellant committed the crime he was charged with and convicted of by stating:
The Court concludes that the Statute's employment of the [dis]junctive or clearly evidences the legislature's intent to prescribe handling and fondling a child under sixteen (16) years of age, which was the gravamen of the offenses, charged, proved, and upon which the Defendant was found guilty by a jury of his peers.
We likewise reject appellant's contention that he was charged and tried for assaults, rather than fondling or handling, in five of the six counts. We further agree with the trial court that the appellant was properly found guilty of the five counts of handling and fondling and the one count of assault under section 800.04(1).
The following exchange between the opposing attorneys at the beginning of the trial concerning proposed jury instructions shows that the state fully intended to prove five fondlings/handlings and one assault:
MR. FOX [appellant's attorney]: I just — reverting back to the definitional instruction as to the offense which you're going to give preliminarily, in that respect will you be advising them that he did make an assault on the victim in a lewd and indecent manner by handling or fondling in a lewd and indecent manner?
MR. BURFORD [assistant state attorney]: Well, I think it applies.
MR. FOX: Both are sort of alleged.
MR. BURFORD: I agree. Some counts — well, the lewd and lascivious statute has many prongs and this particular case proves that you can commit the crime in many different ways. I think there's five different ways alleged here in this information.
You can commit a lewd and lascivious act by handling and fondling; you can commit it by making an assault. I think five of the counts indicate, and the proof will be, that the extent of the activity was handling and fondling.
On one count it is alleged that he caused his penis to come into contact with the hand.
That is not, per se, a handling and fondling of the genitalia of the child. However, clearly that falls as lewd and lascivious assault.
The record does not include a scoresheet, but the state concedes that 60 points were scored for victim injury: 20 points for each of the three victims for contact but no penetration. Subsequent to appellant's sentencing, the supreme court decided Karchesky v. State, 591 So.2d 930 (Fla. 1992), in which it held that points for penetration or contact cannot be scored for category two sexual offenses unless the victim injury consisted of physical trauma. Since no such victim injury evidence was presented in this case, points for victim injury should not have been scored. We do not agree with the state that the amendment to section 921.001 requires affirmance. Harrelson v. State, 616 So.2d 128 (Fla. 2d DCA 1993); Morales v. State, 613 So.2d 922 (Fla. 3d DCA), rev. denied, No. 81,679, 623 So.2d 494 (Fla. 1993); Boland v. State, 613 So.2d 72 (Fla. 4th DCA), rev. denied, No. 81,476, 624 So.2d 268 (Fla. 1993).
Effective April 8, 1992 section 921.001(8), Florida Statutes (Supp. 1992) provides:
(8) For purposes of the statewide sentencing guidelines, if the conviction is for an offense described in chapter 794, chapter 800, or s. 826.04 and such offense includes sexual penetration, the sexual penetration must receive the score indicated for penetration or slight injury, regardless of whether there is evidence of any physical injury. If the conviction is for an offense described in chapter 794, chapter 800, or s. 826.04 and such offense does not include sexual penetration, the sexual contact must receive the score indicated for contact but no penetration, regardless of whether there is evidence of any physical injury. If the victim of an offense described in chapter 794, chapter 800, or s. 826.04 suffers any physical injury as a direct result of the primary offense or any other offense committed by the offender resulting in conviction, such physical injury must be scored separately and in addition to the points scored for the sexual contact or the sexual penetration.
Accordingly we remand for resentencing at which time the state may be given the opportunity to show proof of physical trauma to a victim. Hood v. State, 603 So.2d 642, 643 (Fla. 5th DCA 1992). The court may also consider a departure sentence, if appropriate, since there was a lack of intent to impose a departure sentence. State v. Betancourt, 552 So.2d 1107, 1108 (Fla. 1989); Hood, 603 So.2d at 643. See also Roberts v. State, 547 So.2d 129, 131 (Fla. 1989).
AFFIRMED in part; REVERSED in part; REMANDED.
DIAMANTIS, J., concurs.
DAUKSCH, J., concurs specially, with opinion.
Appellant urges, inter alia, that a single definition of the word "assault" should be applied throughout the law. That thought assaults my sensibilities. There is a statutory definition for a particular crime of assault, section 784.011, but that does not mean that every time that word is used that that particular definition applies. Suffice it, for me at least, to say that if one touches a child, or an unwilling adult, for that matter, lewdly, or exposes oneself lewdly, then an assault of kind occurs. As did in this case.
At trial everyone, including the jury, was confused about the crime charged and the lesser included offenses. However, the state by charging a "lewd assault" did not charge, as a lesser, the crime of assault. In order to have that crime charged it must be specifically within the words of the greater charge. State v. Daophin, 533 So.2d 761, 762 (Fla. 1988); Von Deck v. State, 593 So.2d 1129, 1130 (Fla. 5th DCA), approved, 607 So.2d 1388, 1389 (Fla. 1992). For example, the state could have worded its information to charge both by saying "did knowingly commit a lewd or lascivious assault upon (name omitted), date of birth: April 4, 1976, a child under the age of sixteen years, by handling or fondling the breast of (name omitted) but without committing sexual battery," and did unlawfully threaten to do violence to the person of (name) coupled with an apparent ability to do so, and thereby did create in the mind of (name) a well-founded fear in (name) that such violence is imminent. The underlined words charge assault and were not in the information, so the appellant was not charged with that crime. He was charged, however, with the lewd assault, as quoted above.
"Lewd assault" is the statutorily proscribed act the appellant committed — he did it by, as charged, the handling and fondling. Thus, I concur.