Opinion
Case No. 3D02-2473.
Opinion filed November 24, 2004.
An Appeal from the Circuit Court for Miami-Dade County, Cecilia M. Altonaga, Judge, Lower Tribunal No. F95-2284.
Charles J. Crist, Jr., Attorney General, and Melynda L. Melear and Douglas Glaid, Assistant Attorney Generals, for appellant.
Bennett H. Brummer, Public Defender, and Mark Graham Hanson, Special Assistant Public Defender, for appellee.
Before GERSTEN, GREEN, and SHEPHERD, JJ.
The state appeals a circuit court order granting the appellee's motion for judgment of acquittal on the ground that the state failed to prove the defendant's age at trial. We have jurisdiction. Art. V, § 4(b) (1), Fla. Const.; Fla.R.App.P. 9.030(b) (1) (A); 9.140(c) (1) (E). Although we are satisfied that there was sufficient circumstantial evidence of the appellee's age, we nevertheless affirm for the reasons set forth below.
In short, we conclude that the trial judge was "right for the wrong reasons." See, e.g., Hillsborough County v. Albrechta, 841 So. 2d 644, 645 (Fla. 2d DCA 2003) (affirming an order of the circuit court but not for the reasons set forth in the order itself).
I. Procedural Posture
Appellee was charged with two counts of sexual battery of a person under twelve years of age by a person 18 years of age or older, in violation of § 794.011(2)(a), Fla. Stat. Under the relevant criminal statute, proof of the age of the defendant is an essential element of the crime. Baker v. State, 604 So. 2d 1239 (Fla. 3d DCA 1992). Prior to deliberations, the trial court instructed the jury as follows:
As to count one, before you can find the defendant guilty of sexual battery upon a person less than 12 years of age, the state must prove the following two elements beyond a reasonable doubt. Number one, [the victim] was less than 12 years of age. Number two, Jean Surin committed an act upon [the victim] in which the vagina of [the victim] was penetrated by the penis of the defendant, or an object. The punishment provided by law for sexual battery upon a person less than 12 years of age is greater depending upon the age of the defendant. Therefore, if you find the defendant guilty of sexual battery upon a person less than 12 years of age and you further find that at the time of the sexual battery the defendant was 18 years of age or older, you should find him guilty of sexual battery upon a person less than 12 years of age by a person 18 years of age or older.
Similar instructions were given for count two. The jury returned a guilty verdict on both counts. The verdict form also included a specific line for the jury to indicate whether they found the defendant to be "over 18." The jury so found. The appellee then filed a motion for a new trial on the ground that the jury finding regarding the defendant's age was contrary to the weight of the evidence. That motion was treated as a motion for a judgment of acquittal and was granted by the trial court. The state opposed the motion on the ground that there was sufficient circumstantial evidence of the defendant's age to support the verdict. The court entered a guilty verdict under two counts of § 794.011(2)(b), Fla. Stat., a lesser-included offense that does not require the defendant to be at least 18 years old. The circuit court then departed from the sentencing guidelines and sentenced the defendant to life in prison.
The difference between the two statutes for our purposes is one of sentencing. Defendants convicted under subsection (2) (a) receive life without parole, while defendants convicted under subsection (2)(b) receive a maximum of life with the possibility of parole. § 775.082, Fla. Stat. (1994).
II. The Use of Circumstantial Evidence
The state may prove an essential element of an offense through circumstantial evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) ("We have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required"). The Florida Supreme Court has long accepted that circumstantial evidence is on an equal footing with direct evidence in proving guilt at a criminal trial. State v. Castillo, 877 So. 2d 690, (Fla. 2004) (quoting Moorman v. State, 25 So. 2d 563, 564 (Fla. 1946) ("It is too well settled to require citation of authorities that any material fact may be proved by circumstantial evidence, as well as by direct evidence")). Although the question of whether circumstantial evidence of a defendant's age may be used to convict a defendant under § 794.011 appears to present us with an issue of first impression, we see no reason why a defendant's age should be subject to a more exacting standard. Indeed, one Florida court has affirmed a conviction where the age of the victim — an essential element of the crime of child abuse — was proven by circumstantial evidence alone. Brown v. State, 802 So. 2d 434, 436-37 (Fla. 4th DCA 2001). If a victim's age can be proven by circumstantial evidence, then we see no reason why a defendant's age cannot be proven by circumstantial evidence as well.
Finally we note that many courts in other jurisdictions have expressly permitted the use of circumstantial evidence in sexual battery cases to prove the age of the defendant where the defendant's age was an essential element of the crime. See,e.g., Hadley v. Arkansas, 910 S.W.2d 675 (Ark. 1995) (rape and incest); Louisiana v. Zeringue, 862 So. 2d 186 (La.Ct.App. 2003) (carnal knowledge); Pennsylvania v. Miller, 657 A.2d 946 (Pa.Super.Ct. 1995) (corruption of minors); Houston v. Alabama, 565 So. 2d 1263 (Ala.Crim.App. 1990) (felony sexual abuse). We therefore adopt the straightforward rule set forth inZeringue: "Jury observation and circumstantial evidence can be used to infer the age of a defendant when no direct evidence of the defendant's age is presented." 862 So. 2d at 193.
Having established that, as a matter of law, a defendant's age can be proven by circumstantial evidence alone, we turn to the issue of whether there was sufficient circumstantial evidence in this case.
III. The Sufficiency of the Circumstantial Evidence A) Standard of Review
Generally, orders regarding a motion for a judgment of acquittal are reviewed under a de novo standard. Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003); Pollen v. State, 834 So. 2d 380 (Fla. 3d DCA 2003). If a "rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt," then a guilty verdict should not be disturbed.Id. Where, as is the case here, the state's proof relating to the age of the defendant is entirely circumstantial, the jury may not convict unless it can "exclude every reasonable hypothesis except that of guilt." Id. However, "the question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse." Id. Thus, if we are satisfied that the state presented evidence for the jury to exclude all reasonable hypotheses that the defendant was 17 years of age or younger when he committed the crime, we will not disturb the guilty verdict.
B) Discussion
The State argues on appeal that there was sufficient circumstantial evidence to support a finding that the defendant was at least 18-years old when he committed the crime. We agree.
First, and most notably, the jury had the opportunity to observe the defendant throughout the trial. Second, there was evidence that the defendant married the victim's mother in 1993. Third, there was evidence that he cared for his wife's children (including the victim) while she was at work. Fourth, the victim repeatedly referred to the defendant as "daddy." Fifth, there was evidence that he was old enough to enter the country without his parents or any other family members. Sixth, the defendant's wife referred to him as an adult during her testimony. In light of the testimony given at trial, and the jury's ability to observe the defendant during the trial, we are satisfied that there was sufficient circumstantial evidence presented by the state to disprove all reasonable hypotheses that the defendant was 17-years old or younger when the crime occurred. It was therefore error for the trial court to grant the defendant's motion for a judgment of acquittal on the grounds stated in the order.
The appellee asserts that mere observation, without the defendant standing and showing himself to the jury or without the defendant testifying, is insufficient to allow a jury to determine the defendant's age. We disagree.
The circuit court's order misconstrues the statute by stating that, "the mere observation of the Defendant's physical appearance, standing alone, is insufficient to establish his date of birth . . ." The jury need not determine his date of birth, it need merely conclude that he was at least 18-years old. A jury can conclude that a defendant who appears to be in his mid-forties, for example, is at least 18 years of age, without knowing the exact year of his birth.
IV. The Right to a Jury Trial
Although we are satisfied that there was sufficient circumstantial evidence to prove beyond a reasonable doubt that the defendant was at least 18-years old when he committed the crime, the verdict form made no such inquiry of the jury. The defendant's trial counsel objected to the verdict form and the defendant's appellate counsel suggested an Apprendi violation in his response brief to this appeal by the State. We are aware that the defendant did not specifically appeal a violation ofApprendi; however, we nonetheless consider this important issue.
The Sixth Amendment mandates that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ." U.S. Const. amend. VI. "That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure." Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). See also Apprendi v. New Jersey, 530 U.S. 466 (2000); Duncan v. Louisiana, 391 U.S. 145 (1968) (incorporating the sixth amendment on the states).
Proof that the defendant was over the age of 18 when he committed the crime is an essential element of the offense. Baker, 604 So. 2d at 1240; § 755.082(2)(a), Fla. Stat. (1994). Unless the defendant waives his right to a jury trial or he admits the finding, a jury must determine whether he was at least 18 years of age when the crime occurred. See Apprendi, 530 U.S. at 490. As the Fourth District recently opined: "Apprendi makes it clear that criminal convictions depend on jury findings as to each element of the crime." Sigler v. State, ___ So. 2d ___, 2004 WL 1562912 (Fla. 4th DCA July 14, 2004). See also In re Winship, 397 U.S. 358 (1970) (holding that the right to a jury trial means the right to have every element of the offense proved beyond a reasonable doubt).
Even assuming, arguendo, that the age of the defendant is not an essential element, but is merely a sentence enhancer,Apprendi would still require that the defendant's age be proven to a jury beyond a reasonable doubt because the age of the defendant determines what degree felony the defendant is ultimately guilty of and what sentencing range is available. As the United States Supreme Court recently confirmed in Blakely, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." ___ U.S. at ___, 124 S.Ct. at 2536. Here,Apprendi unquestionably is implicated because the defendant's age determines whether the sexual battery is a capital felony or a life felony.
In this case, the verdict form used was constitutionally infirm. For both counts I and II, the verdict form required the jury to "check" if "the defendant is guilty of Sexual Battery on a minor by an adult." Immediately below, and indented, was another line for the jury to "check" if "the defendant is over 18." Immediately below that was yet another line for the jury to "check" if "the defendant is under 18." For both counts, the jury checked both the "guilty" line and the "over 18" line. The verdict form used did not inquire as to whether the defendant was at least eighteen years of age at the time of the offense. Rather, the verdict form required the jury to determine if, presumably at the time of trial, the defendant "is over 18" — this is irrelevant. The jury must determine, via proof beyond a reasonable doubt, that the defendant was at least 18 when he committed the crime. Such a finding is an essential element, and therefore must be determined by the jury. The verdict form here allowed the defendant to be convicted of a crime that required him to have been at least 18 when it occurred upon proof that the defendant is at least 18 at the time of trial.
In its motion for rehearing on the order granting defendant's renewed motion for partial judgment of acquittal, the state argues that "the jury returned the verdict of guilty with a specific finding that the defendant was over the age of eighteen at the time of the offenses charged." This is incorrect. According to the record on appeal, the verdict form made no such request of the jury and the jury made no such finding.
This is especially problematic in this case, because the defendant was 29 in 1994, when the crime occurred, but 37 in 2002, when the defendant was tried.
Although both the circuit court's order and the state's motion for rehearing challenging the judgment of acquittal claim that the defendant's age was treated as an essential element, a careful review of the transcript tells a different story. In its closing argument, the state's attorney told the jury that the state has to prove "that [the victim] is less than 12" and that her vagina "was penetrated by [the defendant's] penis or another object." The state then explained what evidence supported those two elements. Nowhere in the state's closing or rebuttal argument did it mention that the defendant's age was an element, or even that the defendant was, or had to be, at least 18-years old when the sexual battery occurred in order to be convicted. More importantly, the trial judge instructed the jury that "the state must prove the following two elements [victim's age and sexual penetration] beyond a reasonable doubt." No burden of proof was ever mentioned regarding the jury's determination of the defendant's age. In fact, the trial judge instructed the jury that the "punishment" provided by law depends upon the defendant's age. This was fundamental error — a third element regarding the defendant's age at the time of the offense must also be proven beyond a reasonable doubt.
The circuit court order granting the motion for a judgment of acquittal acknowledged that the verdict form was erroneous. However, the court determined that the error was harmless and was sufficiently cured within the meaning of Glover v. State, 815 So. 2d 698 (Fla. 5th DCA 2002). Glover is a strikingly similar case except for one glaring difference. In Glover, the court held that "there is also no dispute that the jury specifically found the defendant to have been over eighteen at the time of the offense." Id. at 699 (emphasis added). Unlike the facts inGlover, the facts here indicate that the jury determined only that the defendant was at least 18-years old at the time of trial. As the circuit court admits, an essential element of the crime was not found by the jury, and thus the conviction for violating § 794.011(2)(a), Fla. Stat., cannot stand. If this court were to quash the order and reinstate the original verdict as the State requests, we would be violating Apprendi. We decline to do so.
Conclusion
For the reasons stated above, we affirm the order of the circuit court granting the appellee's motion for a judgment of acquittal under § 794.011(2)(a), although not for the reasons stated in the order by the trial court. In so doing, however, we expressly hold that it was not error for the defendant's age to be proved via circumstantial evidence alone.
Affirmed.
GREEN, J. concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
I concur with the majority opinion's decision to affirm the order granting a partial judgment of acquittal and sentencing the defendant to a term of life imprisonment on two counts of sexual battery. The possibility of juror confusion on the verdict form, and the general principle of lenity embodied in Section 775.021(1), Florida Statutes (2003), require that the trial court's decision be affirmed.