final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Okaloosa County. William F.
Michael Ufferman, Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.
Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant
Attorney General, Thomas H. Duffy, Assistant Attorney
General, Tayo Popoola, Assistant Attorney General, and Steven
Woods, Assistant Attorney General, Tallahassee.
Rafael Jacob Stoffel, appeals his conviction and sentence for
lewd or lascivious molestation of a child under the age of
twelve. § 800.04(5), Fla. Stat. (2014). Appellant raises
two issues on appeal: 1) whether the trial court erred by
denying his request for a jury instruction on the
lesser-included offense of battery; and 2) whether the trial
court's imposition of the minimum-mandatory term of
twenty-five years' imprisonment constitutes cruel and
unusual punishment under both the Florida and federal
constitutions.[*] We find no merit as to the second issue,
but write to address Appellant's claim that he was
entitled to a jury instruction on battery.
took his nine-year-old stepdaughter, S.P., to a movie on a
"daddy-daughter" date to celebrate her upcoming
birthday. A few minutes into the movie, Appellant asked if he
could touch S.P.'s breasts. S.P. consented and Appellant
proceeded to put his hand underneath S.P.'s shirt and
grabbed her breasts. After the movie, Appellant apologized to
S.P. for his actions.
a year after the incident, S.P.'s mother asked S.P. if
Appellant had ever touched her inappropriately. S.P. then
told her mother what occurred. S.P.'s mother then
confronted Appellant about the incident, and Appellant
admitted to touching S.P.'s breasts. Appellant expressed
remorse for his actions and self-reported the incident by
calling the Department of Children and Families (DCF). As a
result, DCF sent its investigator and an Okaloosa County
Deputy Sheriff to S.P.'s home. Recorded interviews were
conducted with S.P., her mother, and Appellant. S.P.
reiterated what had occurred during the movie. During his
interview, Appellant stated that when he apologized to S.P
for his actions, she stated, "Well, I did say yes."
At the conclusion of the interviews, Appellant was arrested
and charged with lewd or lascivious molestation of a child
under the age of twelve.
trial, S.P. testified that Appellant touched her breasts for
approximately two to three minutes and told her that she was
"growing up" and "becoming quite the
woman." Additionally, S.P. testified that she "felt
like something was wrong, but I wasn't, like, exactly
sure, and I didn't really know what was going on."
Appellant testified and admitted to touching S.P.'s
breasts for a few seconds. Both the State and defense counsel
stipulated that, while Appellant was touching S.P., Appellant
told S.P. "your chest is getting big."
charge conference, defense counsel asked for a jury
instruction on the lesser-included offense of battery. The
trial court denied the request. The trial court, however,
granted defense counsel's request for a jury instruction
on the lesser-included offense of attempted lewd or
lascivious molestation and a jury instruction for an
unnatural and lascivious act.
closing statement, the defense argued that Appellant did not
have the lascivious intent required to be found guilty of
lewd or lascivious molestation. The trial court then
instructed the jury:
THE COURT: Lewd or lascivious molestation. To prove the crime
of lewd or lascivious molestation, the State must prove the
following three elements beyond and to the exclusion of a
reasonable doubt: One, [S.P.] was under the age of 12 at the
time of the offense. Two, Rafael Stoffel intentionally
touched in a lewd or lascivious manner the breasts of [S.P.].
Three, Rafael Stoffel was 18 years of age or older at the
time of the offense.
The words "lewd" and "lascivious" mean
the same thing. They mean a wicked, lustful, unchaste,
licentious, or sensual attempt on the part of the person