GOODMAN v. STATE (2019)

In this case, the appellant was charged with: attempted sexual battery by attempting to penetrate the vagina of the victim with his penis, count I; attempted sexual battery by attempting to penetrate the vagina of the victim with his fingers, count II; falsely personating a law enforcement officer, count III; and battery, count IV. On appeal, the appellant makes five arguments seeking to vacate his convictions on counts I, II, and III. We find all of the appellant's arguments meritless with the exception of issue four and affirm the others without comment. In issue four, the appellant argues that the trial court erred by giving the standard jury instruction, which includes the “union with” language when the State only charged the attempted sexual battery by penetration. We agree and reverse.

Generally, an appellant is required to make an objection to the erroneous jury instruction prior to the jury retiring for deliberation. Fla. R. Crim. P. 3.390(d). Because, in this case, the appellant did not make an objection, we must determine whether the inclusion of the erroneous jury instruction constitutes fundamental error. Fussell v. State, 154 So. 3d 1233, 1235 (Fla. 1st DCA 2015). For the error to constitute fundamental error, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)).

The jury instruction at issue defined sexual battery as “the sexual organ of the [appellant] penetrat[ing] or ha[ving] union with the vagina of the victim ․” The information charged the appellant with attempted sexual battery via penetration only. This Court previously held that it is fundamental error when the jury is instructed on a crime not charged in the charging document. Eaton v. State, 908 So. 2d 1164, 1165 (Fla. 1st DCA 2005). Later, the Florida Supreme Court clarified the law, stating that no fundamental error occurs when the State does not rely upon the erroneous jury instruction and presents no evidence to support the erroneous jury instruction. State v. Weaver, 957 So. 2d 586, 589 (Fla. 2007).

During the appellant's trial, the State presented evidence and argued that the jury could convict the appellant of the uncharged crime. This is fundamental error. Accordingly, we reverse the appellant's judgment and sentence on count I.

Affirmed in part, Reversed in part, and Remanded.

Per Curiam.

Lewis, B.L. Thomas, and Roberts, JJ., concur.