State v. Paul

We have for review the decision in Paul v. State, 912 So.2d 8 (Fla. 4th DCA 2005), which certified conflict with the decision in Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), review denied, 894 So.2d 970 (Fla.2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

Steve Paul was charged with committing six acts of lewd and lascivious offenses against a thirteen-year-old victim and was found guilty of four of the counts. Specifically, the jury found that Paul (1) intentionally touched the victim’s genital area or the clothing covering it, contrary to section 800.04(5), Florida Statutes (1999); (2) intentionally touched the victim in a lewd or lascivious manner by kissing the victim’s neck, contrary to section 800.04(6), Florida Statutes (1999); (3) intentionally touched the victim in a lewd or lascivious manner by rubbing his penis on the victim’s stomach area, contrary to section 800.04(6), Florida Statutes (1999); and (4) intentionally exposed his genitals in a lewd or lascivious manner in the presence of the victim, contrary to section 800.04(7), Florida Statutes (1999). Paul appealed his convictions to the Fourth District Court of Appeal, contending that multiple convictions arising out of the same series of events violate state and federal double jeopardy protections.

Taking the evidence most favorable to the State, the district court succinctly summarized the facts adduced at trial as follows:

Paul came to the apartment of the thirteen-year-old male victim, where the victim’s parents were asleep in their bedroom. They first went into the living room of the apartment. There, Paul kissed the victim on the neck and rubbed the outside of the victim’s pants over his penis. Seeing that an adjoining bedroom was empty, Paul asked the victim if they could go into that room. They walked into the bedroom and shut the door. There, Paul proceeded to place his hand on the victim’s penis underneath his clothing. The victim then removed his shorts, touched Paul’s penis, and Paul rubbed his exposed penis over the victim’s leg and stomach and ejaculated. At that point, the victim’s sister and her boyfriend arrived.

Paul, 912 So.2d at 10. The Fourth District first held that the above incident was not a single criminal episode but actually consisted of two distinct acts. As the court noted, “where a defendant is charged with lewd and lascivious battery, the different acts of touching are to be viewed with reference to the spatial and temporal aspects of the surrounding circumstances in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between occurrences.” Id. In applying this test to the defendant, the court found that two sexual offenses occurred: one in the living room and one in the bedroom. As the court elaborated, “at the point in time at which Paul asked the victim if they could move from the living room into the empty bedroom, Paul had the time to pause and reflect on what he was doing.... This is demonstrated by the fact that Paul deliberately moved the victim from the more public living room into the more private bedroom where they were less likely to be discovered.” Id. at 11.

The Fourth District then addressed whether double jeopardy was violated when the defendant was convicted of two counts for each of these two separate criminal episodes. The State contended that double jeopardy protections were not violated because the Legislature had recently amended section 800.04 to create separate offenses for each of the acts committed. Paul, 912 So.2d at 11. The district court rejected this argument, holding that based on its reading of the statutory scheme of section 800.04, there was no legislative authorization for “separate convictions and' sentences for each of the cumulative acts occurring in the course of one continuous and almost simultaneous act of lewd and lascivious activity on a minor, particularly where each lesser act leads up to the most serious of the charges.” Id. Instead, the court deemed “the acts leading up to, or occurring as part of, the most serious, in each room, to be permissive lesser offenses.” Id. However, the court noted that the Fifth District Court of Appeal took a contrary view regarding the recent amendments to section 800.04 when that court held that the amendment to the statute intended to authorize separate convictions and punishments for each subsection of section 800.04:

The language and structure of the amended statute does focus on individual acts and creates separate criminal offenses in each subsection that designates a specific degree of the crime and the punishment to be imposed for each. We conclude that the. legislative intent is clear that separate punishments be imposed for each criminal offense created by the statute. Therefore, with respect to Hunsicker’s convictions for the separate crimes of lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition, there is no double jeopardy violation.

Id. at 11-12 (quoting Hunsicker, 881 So.2d at 1171).

ANALYSIS

Determining whether double jeopardy is violated based on undisputed facts is a legal determination, and thus our standard of review is de novo. State v. Florida, 894 So.2d 941, 945 (Fla.2005). The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: “It protects against á second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also State v. Wilson, 680 So.2d 411, 413 (Fla.1996). As this Court has set forth:

The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature “intended to authorize separate punishments for the two crimes.” M.P. v. State, 682 So.2d 79, 81 (Fla.1996); see State v. Anderson, 695 So.2d 309, 311 (Fla.1997) (“Legislative intent is the polestar that guides our analysis in double jeopardy issues.... ”). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger[ ] test, as codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist.

Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001) (footnote omitted); see also Gaber v. State, 684 So.2d 189, 192 (Fla.1996) (“[Alb-sent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Block-burger ‘same-elements’ test pursuant to section 775.021(4) ... is the sole method of determining whether multiple punishments are double-jeopardy violations.”) (footnote omitted).

In reviewing section 800.04, we do not find a clear statement of legislative intent, and thus we must employ the Blockburger test as codified in section 775.021, Florida Statutes (2005), to determine whether separate offenses exist. Section 775.021(4) provides:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2005). The first portion of this test, section 775.021(4)(a), sets forth the Blockburger “same elements test,” which prohibits courts from imposing multiple convictions for an act or acts which occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses. Section 775.021(4)(b) sets forth the exceptions to the Blockburger “same elements” test, providing three additional situations where dual convictions are barred. See Florida, 894 So.2d at 945 n. 2.

Because the Blockburger test applies to crimes occurring in only “one criminal transaction or episode,” the first step is to review whether there was one criminal episode or multiple episodes. “In or-der to determine whether offenses occurred during a single criminal episode, courts look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” Murray v. State, 890 So.2d 451, 458 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2nd DCA 2002)); see also Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001) (same); Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004) (holding that in order for crimes to be considered to have occurred in more than one criminal episode, there must be a sufficient temporal break between the two acts in order to allow the offender to reflect and form a new criminal intent for each offense). In this case, we agree with the district court that based on the circumstances presented, more than one criminal episode occurred — one in the living room when Paul first entered and the next after Paul invited the boy back to a more private room. Accordingly, the court may impose separate convictions and sentences for each criminal episode. The trial court, however, imposed two separate convictions for each criminal episode. The Fourth District reversed these dual convictions based on double jeopardy grounds, and the State contests this decision. To review this matter, we must apply the Blockbur-ger test to each criminal episode to determine whether multiple punishments are authorized.

The first criminal episode occurred in the living room when Paul first entered the home. Specifically at issue are two counts: (1) count I — lewd and lascivious molestation by touching the victim’s genital area or the clothing covering it in violation of section 800.04(5)(a); and (2) count V — lewd and lascivious conduct by kissing the victim’s neck in violation of section 800.04(6)(a). In order for multiple convictions to be permitted under these two counts pursuant to section 775.021(4)(a), i.e., the “same elements” test, each offense is considered separate “if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4)(a), Fla. Stat. (2005) (emphasis added). Therefore, we must review the necessary elements of each violation under the statute itself. In comparing the elements of sections 800.04(5)(a) and 800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section 800.04(6)(a)(1) defines “lewd or lascivious conduct” as any intentional touching of “a person under 16 years of age in a lewd or lascivious manner,” while section 800.04(5)(a) defines “lewd or lascivious molestation” as the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” § 800.04, Fla. Stat. (1999). In other words, any violation of subsection (5)(a), which prohibits the lewd touching of particular body parts of a person under sixteen years- of age, will also violate subsection (6)(a), which simply prohibits any lewd touching of a person under sixteen years of age. . Thus, one cannot say “each offense has an element that the other does not.” While subsection (5)(a) has an element that subsection (6)(a) does not, the converse is not true — -that (6)(a)(1) has an element (5)(a) does not. Therefore, dual convictions and punishments are not permitted for these violations.

Next, the Court must consider whether multiple convictions and punishments are permitted for the criminal episode which transpired in the bedroom: (1) count TV — lewd and lascivious conduct by rubbing his penis on the victim’s stomach in violation of section 800.04(6)(a); and (2) count VI — lewd and lascivious exhibition by intentionally exposing his penis to the victim in violation of section 800.04(7). Specifically, these convictions occurred for the same act — in rubbing his penis against the victim, Paul automatically had to expose his penis. The relevant portions of .the statute provide:

(6) LEWD OR LASCIVIOUS CONDUCT.—

(a) A person who:

1. Intentionally touches a person under 16 years of age in a lewd or lascivious manner; ... commits lewd or lascivious conduct.

(7) LEWD OR LASCIVIOUS EXHIBITION.—

(a) A person who:

2. Intentionally exposes the genitals in a lewd or lascivious manner; ... in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition.

§ 800.04,. Fla. Stat. (1999). Under the “same elements” test, each of these provisions does require separate elements that the other does not. Under subsection (6)(a), a defendant must simply touch a person under sixteen years of age in a lewd or lascivious manner — the touching does not mean that the offender has to exhibit any genitals in order to commit this violation. Under subsection (7)(a), a defendant violates the statute if he intentionally exposes his genitals in a lewd or lascivious manner — no touching is required at all. Accordingly, while Paul engaged in only one act that violated both subsections at the same time, he can still be convicted of both violations unless the offenses come within one of the exceptions in subsection (4)(b).

As addressed above, section 775.021(4)(b) prohibits multiple convictions and punishments for: “(1) [o]ffenses which require identical elements of proof; (2) [o]ffenses which are degrees of the same offense as provided by statute; [and] (3) [o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b), Fla. Stat. (2005). Section 775.021(4)(b)(1), which concerns offenses that “require identical elements of proof,” does not apply here. Violating section 800.04(6) requires a touching, and violating section 800.04(7) requires an exhibition of the offender’s genitals. Hence, although both crimes occurred based on the same act, the offenses themselves do not require identical elements of proof.

The next exception is subsection 775.021(4)(b)(2), which prohibits multiple convictions and punishments for “[o]f-fenses which are degrees of the same offense as provided by statute.” In Florida, this Court’s most recent case addressing this exception, the Court looked to whether both crimes intend to punish the same primary evil. Specifically, in Florida, the defendant was convicted of both aggravated battery on a law enforcement officer and attempted second-degree murder with a firearm after he shot a police officer. Id. at 944. This Court rejected the claim that attempted second-degree murder and aggravated battery were degree variants of the crime of injuring someone, holding that attempted murder punishes the potential of the defendant’s act to cause death, whereas aggravated battery punishes the act of injuring another person. Id. at 949 (relying on the analysis set forth in Gordon v. State, 780 So.2d 17, 23 (Fla.2001)).

In turning our attention to the case at hand, we note that both lewd or lascivious conduct and lewd or lascivious exhibition stem from the same crime of lewd, lascivious, or indecent assault or act upon or in the presence of child. In 1999, the Legislature delineated the crime of lewd, lascivious, or indecent assault upon a child into separate crimes: subsection 800.04(6) prohibits lewd or lascivious conduct upon a child; and subsection 800.04(7) prohibits lewd or lascivious exhibition upon or in the presence of a child. We find that both crimes are not intended to punish the same primary evil but that the different subsections address different evils: one forbids lewd or lascivious exhibition; and the other prohibits lewd or lascivious touching. Thus, the two crimes are not merely degree variants of the same core offense and do not come within the exception to the requirement of separate convictions set out in section 775.021(4)(b)(2).

The last exception to consider is in subsection 775.021(4)(b)(3), which applies to “[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b)(3), Fla. Stat. (2005). As this Court recently stressed in Florida, 894 So.2d at 947, “subsection (4)(b)(3) applies only to necessarily lesser included offenses,” which have been defined as “those [offenses] in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial.” Id. In this case, lewd or lascivious conduct does not necessarily include lewd or lascivious exhibition. The only reason why the two were charged based on the one act in the bedroom is because Paul conducted the prohibited touching with his genitals, therefore also exposing his genitals in the process of touching the victim. However, if he had simply touched the victim’s stomach in a lewd manner with any other portion of his body, he would have only violated 800.04(6). Because the determination regarding a necessarily lesser included offense is confined to the statutory elements of the crime and does not consider the evidence at trial, double jeopardy is not violated by these two convictions.

CONCLUSION

In conclusion, we approve in part the decision of the district court, to the extent that it found two criminal episodes occurred and that Paul could not be convicted of both a violation of section 800.04(6)(a)(1), Florida Statutes, and section 800.04(5)(a), Florida Statutes, for the acts which occurred in the living room. However, we quash the district court’s determination that application of section 775.021 prohibits convictions of both section 800.04(6)(a) (lewd and lascivious conduct) and section 800.04(7) (lewd and lascivious exhibition) for the acts that occurred in the bedroom. We further disapprove the decision in Hunsicker to the extent that it is inconsistent with this opinion. The case is hereby-remanded for further proceedings consistent with this opinion.

It is so ordered.

WELLS, LEWIS, QUINCE, and BELL, JJ., concur.

CANTERO, J., specially concurs with an opinion, in which WELLS and BELL, JJ., concur.

PARIENTE, C.J., concurs in part and dissents in part with an opinion, in which ANSTEAD, J., concurs.

. The Fifth Amendment of the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Likewise, article I, section 9, of the Florida Constitution provides a similar protection: "No person shall ... be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const.

. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

. Of course, if two convictions occurred based on two distinct criminal acts, double jeopardy is not a concern. See Hayes v. State, 803 So.2d 695, 700 (Fla.2001) ("[T]he prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts.”).

. Both section 800.04(6)(a) and section 800.04(5)(a) include specific alternative conduct. Specifically, section 800.04(6)(a) also addresses the crime of soliciting a person under age sixteen years of age to commit a lewd act, while section 800.04(5)(a) includes forcing or enticing a person under sixteen years of age to touch the perpetrator. As this Court held in Gibbs v. State, 698 So.2d 1206, 1209 (Fla.1997), when courts are reviewing whether double jeopardy is violated based on an alternative conduct statute, the court must break the conduct elements into the specific alternative conduct which is in the other statute being compared and cannot consider the entire range of conduct proscribed by the statute, which in this case would include both offensive touching and offensive solicitation. Such a situation must be differentiated from a case in which the defendant is charged with both solicitation and touching. Thus, "if prosecution is for the same conduct under both statutes, a conviction under more than one of the statutes is a violation of double jeopardy principles.” Id. at 1210.