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Aquino v. State

Florida Court of Appeals, Third District

July 17, 2019

Benjamin Aquino, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Monroe County, Ruth Becker, Judge. Lower Tribunal No. 12-220-A-M

          Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Roberta G. Mandel and Silvia Maria Gonzalez, Assistant Regional Counsels, for appellant.

          Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.

          Before SCALES, HENDON, and MILLER, JJ.

          OPINION

          HENDON, J.

         The defendant, Benjamin Aquino, appeals from his conviction and sentence for lewd or lascivious conduct by a person eighteen years or over involving a victim under sixteen years of age, in violation of section 800.04(6)(a) & (b), Florida Statutes (2012).[1] The defendant contends that (A) trial counsel's failure to move for a judgment of acquittal based on the sufficiency of the evidence constitutes fundamental error, and (B) trial counsel provided ineffective assistance of counsel by failing to move for a judgment of acquittal based on the sufficiency of the evidence and by objecting to the State's request to instruct the jury on the lesser offense of attempted lewd or lascivious conduct. For the reasons that follow, we affirm.

         I. Facts

         The defendant was charged by information with one count of lewd or lascivious conduct. Specifically, the information states that the defendant, a person eighteen years or older, between July 1, 2012 and September 2, 2012, "did unlawfully and intentionally touch C.E.M., a person less than 16 years of age, in a lewd or lascivious manner {or} did solicit C.E.M. to commit a lewd or lascivious act, by grabbing victim and forcing her to sit on his lap and forcibly kissing her neck, contrary to Florida Statute 800.04(6)(a) and (b)."

         At the jury trial, the State called C.E.M. ("the victim") and others to testify against the defendant. The victim testified that the defendant and her father were neighbors, and she was friends with the defendant's son, Jonathan. On September 2, 2012, when she was fourteen years old, she walked over to the defendant's home around 11:00 p.m. because her father told her earlier that evening that Jonathan wanted to talk to her. When she arrived, the defendant told her that Jonathan was sleeping, and she entered to confirm that Jonathan was indeed sleeping. The defendant, who was sitting on a couch, grabbed the victim's arm, pulled her onto his lap, and began to kiss her neck while his hands were midway on her thigh. The victim sat on the defendant's lap for about thirty seconds before getting off. The victim thought about leaving, but did not because she remembered a conversation she had with the defendant about sharp knives that were on the wall of his home. The defendant then moved from the couch to a loveseat, and he called her over. Despite being scared, the victim sat next to him on the loveseat. The defendant then told the victim, "You're a beautiful girl. You're not a baby anymore. You're a grownup." The defendant then asked the victim if she knew that he liked her, and in response, the victim said, "No." The victim was wearing a skirt and a tank top with a bathing suit underneath, and the defendant then began to play with the hem of the victim's skirt and asked her to allow him to see her bathing suit. She "swatted his hand away because it felt weird," but she lifted the strap of her tank top and exposed the strap of her bathing suit because she thought if he could see the color of her bathing suit, he would then leave her alone. He also asked the victim if he could have a picture of her. The victim then got "really uncomfortable" and began to exit. As she was exiting, the defendant asked her if she was going to tell anybody, and the victim said, "No."

         The victim also testified as to an incident that occurred about two months prior to the September 2nd incident. While at the defendant's home, the defendant wanted to teach his son, Jonathan (who was then about ten years old), how to kiss a girl. The victim testified that the defendant wanted to use her "like a little guinea pig," and the defendant tried to kiss the victim, but she covered her mouth with her hand.

         After the State rested, trial counsel moved for a judgment of acquittal, but the motion was not based on the sufficiency of the evidence. Following the denial of the motion, the defendant testified on his own behalf. He testified that the victim did not come over to his home on September 2, 2012 at approximately 11:00 p.m., nothing occurred between him and victim, and the victim was lying.

         During the charge conference, the State requested instructions on the lesser charges of battery and of attempted lewd or lascivious conduct. Defense counsel objected to the instruction on attempted lewd or lascivious conduct. In response to trial counsel's objection, the trial court stated that the evidence was that the defendant grabbed the victim's arm, put her on his lap, and kissed her neck, and, if the jury believed the victim, the crime was completed. The State then agreed to proceed only with the lesser charge of battery.

         The jury found the defendant guilty of lewd or lascivious conduct, and the trial court sentenced the defendant to five years in prison followed by ten years ...


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