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J.F. v. State

Florida Court of Appeals, Second District

December 11, 2019

J.F., Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Lee County; Robert Branning, Judge.

          Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Kelly O'Neill, Assistant Attorney General, Tampa, for Appellee.

          LAROSE, JUDGE.

         J.F. appeals an order finding him delinquent of lewd or lascivious conduct. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.145(b)(1). The State charged J.F. with attempted sexual battery on a child less than twelve years of age. Because lewd or lascivious conduct is not a lesser included offense of the charged crime, we reverse.

         Background

         In an amended delinquency petition, the State alleged that J.F. committed the delinquent act of attempted sexual battery on a child less than twelve years of age, a second-degree felony. §§ 794.011(2)(b), Fla. Stat. (2015) ("A person less than 18 years of age who commits sexual battery upon . . . a person less than 12 years of age commits a life felony."); 777.04(4)(c), Fla. Stat. (2015) ("[I]f the offense attempted . . . is a life felony . . . the offense of criminal attempt . . . is a felony of the second degree . . . .").

         The parties presented conflicting evidence at the adjudicatory hearing. The victim testified that while she was retrieving clothes from her room, J.F. entered the room, pushed her face down on the bed, pushed his hand down on her back, pulled her underwear down, and told her, "Don't move, it won't go in." The victim described J.F.'s "private area" touching her "private area . . . in the back." An analysis of T.M.'s underwear uncovered epithelial and sperm DNA. J.F. was not the source.

         J.F. denied assaulting, much less touching, anyone. He stated that he was watching a movie in the victim's bedroom; she entered and told him she had to grab some clothes. "So like, you know, her being a girl I didn't want to see like the stuff that she was grabbing or whatever like her [purse] and stuff, so it's like I'm going to get up and turn my back."

         Apparently, J.F. and the victim were alone for somewhere between two and five minutes. The victim's mother then entered the room; J.F. went into a closet and the victim ran to the bathroom.

         At the conclusion of the hearing, the trial court ruled as follows:

Okay. The allegation, the charge that's been made is sexual assault by a person under the age of 18 against a victim under the age of 12. . . . [I]t's interesting that there are places where both sides, State and Defense, agree on points, and obviously they disagree on others.
[T]he victim . . . did testify, and based on the questions that we heard in court, and the cross-examination that had to occur, that her testimony has been in summary consistent with her testimony with CPT, ...

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