final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No.
Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Senior Assistant Attorney General, West Palm Beach,
was charged with three counts of lewd or lascivious battery
on a child over twelve years old. After the victim testified,
the state amended the information, over appellant's
objection, to change one count from oral to digital
penetration. Thus, we are asked to determine if the mid-trial
amendment constituted prejudice to appellant. We find that in
these circumstances, where the amendment changed an
"essential element" of the charged crime and was
not merely a clarification of some details, the amendment
prejudiced appellant and thus we reverse count III. We
further find the state's closing argument improperly
asked the jury to determine if the victim was lying as the
test for determining appellant's guilt, but we
nevertheless affirm because the issue was not properly
preserved. We affirm appellant's other arguments without
state filed a criminal information alleging three counts of
lewd or lascivious battery of a child over twelve years of
age but less than sixteen years of age. Count I alleged that
appellant engaged in sexual activity with the victim by
"causing his penis to penetrate or unite with [the
victim's] vagina." Count II alleged that appellant
engaged in sexual activity with the victim by "causing
his sexual organ to penetrate or unite with [the
victim's] mouth and/or tongue." Count III alleged
that appellant engaged in sexual activity with the victim by
"causing his mouth and/or tongue to penetrate or unite
with [the victim's] sexual organ." None of the
counts in the filed criminal information alleged digital
trial, the victim testified that while appellant was living
with her family, he woke her up in the middle of the night
and led her out into the hallway. Appellant then placed his
hand under her underwear and touched her vagina. After that
first incident, appellant put his fingers inside her vagina
on five or six occasions. Appellant tried to put his penis
inside of her but she did not know if he succeeded. Appellant
told her that "it wasn't going to hurt" and
"that it never went in." The victim performed oral
sex on appellant two times, and appellant performed oral sex
on her more than five times. After appellant moved out, he
continued to communicate with the victim. Appellant told her
to keep their sexual relationship a secret because he could
get in trouble for it.
the trial, and after the victim's testimony on direct,
the state moved to amend count III of the information, which
had alleged oral penetration, to allege that appellant
engaged in sexual activity with the victim by causing
"[a]n object, to wit, his finger(s) to penetrate the
[victim's] vagina." The state, however, did not seek
to change the statute alleged to have been violated, section
800.04(4)(a). Defense counsel objected, arguing that the
amendment would change an element of the crime and would
prejudice the defense. The trial court overruled the
objection and permitted the amendment. The jury ultimately
found appellant guilty as charged of all counts.
appeal, appellant argues the trial court erred in allowing
the state to amend count III of the information during trial.
Appellant claims that by amending the count from oral to
digital penetration, the state alleged a completely different
means of committing sexual battery and effectively filed a
court's ruling allowing the state to amend the
information is reviewed for abuse of discretion. Jean v.
State, 11 So.3d 421, 422 (Fla. 4th DCA 2009).
"[T]he state may substantively amend an information
during trial, even over the objection of the defendant,
unless there is a showing of prejudice to the substantial
rights of the defendant." Green v. State, 728
So.2d 779, 780 (Fla. 4th DCA 1999). Prejudice occurs where
the amendment "constitutes the charging of a different
crime" or "change[s] the 'essential elements of
the charged offense.'" Toussaint v. State,
755 So.2d 170, 171-72 (Fla. 4th DCA 2000) (citation omitted).
"[A]n amendment that substantively alters the elements
of the crime charged is per se prejudicial." Wright
v. State, 41 So.3d 924, 926 (Fla. 1st DCA 2010). In
contrast, an "amendment is permissible when it merely
clarifies some detail of the existing charge and could not
reasonably have caused the defendant any prejudice."
Green, 728 So.2d at 781. See also
Toussaint, 755 So.2d at 171-72 (finding no prejudice in
amending the information during trial to change the
defendant's age because it was not an element of the
crime of sexual battery).
instant case, count III of the original information charged
appellant with oral penetration, while count III of the
amended information charged appellant with digital
penetration. Both the original and amended information
alleged a violation of section 800.04(4)(a). Section
800.04(4)(a), Florida Statutes (2013), provides that a person
"commits lewd or lascivious battery" when he
"[e]ngages in sexual activity with a person 12 years of
age or older but less than 16 years of age."
"Sexual activity" is defined as "the oral,
anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of
another by any other object." § 800.04(1)(a), Fla.
the trial court erred in permitting the amendment. Although
the amendment did not change the crime charged, that being
section 800.04(4)(a), the amendment did change an essential
element of the charged offense from oral to digital
penetration. See Toussaint, 755 So.2d at 171-72.
Further, the amendment did not merely clarify some detail of
the existing charge. See Green, 728 So.2d
Green, this court found harmful error in permitting
mid-trial amendment to allege a different victim in a charge
for battery of a law enforcement officer. This court found
this was not an amendment but rather "the filing of a
new and entirely different offense." Id. The
court explained, "This is not a case of an amendment
which merely clarified or corrected a simple misnomer, "
"[n]or is it a case of simply correcting the name of the
victim where only a single officer was involved and no one,
including the defendant, reasonably could have been misled as
to the identity of the victim." Id. By
permitting the amendment, the trial court allowed the jury to
find the defendant guilty of "a crime for which he had
not been charged and for which he was not on trial."
Id. See also Hutchinson v. State, 738 So.2d 473, 474
(Fla. 4th DCA 1999) ...