         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


SHANNON HEATHCOCK,

             Appellant,

 v.                                                    Case No. 5D16-2112

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed August 11, 2017

Appeal from the Circuit Court
for Citrus County,
Victor J. Musleh, Judge.

Andrew B. Greenlee, of Andrew B.
Greenlee, PA, Sanford, Fritz Scheller, of
Fritz Scheller, P.L., Orlando, and George A.
Couture, of Decatur, GA, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

      Following a jury trial, Shannon Heathcock (“Appellant”) was convicted of attempted

sexual battery upon a physically helpless person. Appellant raises several issues on

appeal, only one of which has merit. He correctly claims that the jury was erroneously

instructed that he was charged with attempt to commit attempted sexual battery, which is
a non-existent crime. Appellant’s trial counsel did not bring the jury instruction mistake to

the trial court’s attention by a contemporaneous objection.          Nevertheless, we are

compelled to reverse and remand for a new trial because the erroneous jury instruction

constitutes fundamental error.

       The trial testimony established that Appellant was literally caught with his pants

down. The State presented evidence that the victim, after drinking with Appellant and

some colleagues, passed out flat on the ground in the grass next to the parking lot of the

bar where they were drinking. Appellant and two other co-workers carried the victim, who

was unable to walk, to a van owned by a co-worker. They propped the victim up in the

front seat, where she remained essentially non-responsive. The victim was fully dressed

and the van door was open when her co-workers and Appellant went back inside the bar.

After a while, Appellant returned to the parking lot, supposedly to check on the victim. A

few minutes later, the van’s owner went to check on the victim. As she got closer, she

noticed the van door was now closed. She opened the door to her van, and saw

Appellant, with no pants on, standing over the half-naked victim, whose pants and

underwear were now pulled down. She screamed at Appellant to get out of her van. The

victim did not respond.

       Appellant did not testify at trial. However, the jury heard post-incident phone calls,

initiated by the victim and recorded by the police, in which Appellant admitted that he

attempted and probably did try to have sex with her. Thus, the jury had sufficient evidence

to base its verdict that Appellant committed the crime of attempted sexual battery and to

reject Appellant’s defense that the victim consented to have sex with him.




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       However, a mistake was made in crafting the jury instructions, which resulted in

the jury repeatedly being improperly instructed about the crime charged and its elements.

The jury was instructed that Appellant was being charged with attempt to commit

Attempted Sexual Battery, as follows:

                     In order to prove that the defendant attempted to
              commit the crime of Attempted Sexual Battery upon a
              Physically Helpless Person, the State must prove the
              following beyond a reasonable doubt:

                     1. [Appellant] did some act toward committing the
              crime of Attempted Sexual Battery upon a Physically
              Helpless Person that went beyond just thinking or talking
              about it.

                    2. He would have committed the crime except that
              someone prevented him from committing the crime of
              Attempted Sexual Battery upon a Physically Helpless
              Person or he failed.

(emphasis added).

       The State concedes that the “attempting to commit attempted sexual battery”

language in the jury instructions was erroneous, but claims that Appellant’s lack of a

contemporaneous objection waived the issue.           Jury instructions “are subject to the

contemporaneous objection rule, and, absent an objection at trial, can be raised on

appeal only if fundamental error occurred.” State v. Delva, 575 So. 2d 643, 644 (Fla.

1991) (citations omitted). “To justify not imposing the contemporaneous objection rule,

‘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.’” Id. at

644-45 (citation omitted).

       Here, Appellant was charged with attempted sexual battery, but the jury was

instructed that he could be found guilty if he “attempted” to commit attempted sexual



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battery. However, there is no crime in Florida of “attempt” to commit attempted sexual

battery. “If a crime is itself an attempt to do an act or accomplish a result, there can be

no attempt to commit that crime.” King v. State, 339 So. 2d 172, 172 (Fla. 1976). Further,

if a literal reading of an erroneous jury instruction lessens the State’s burden of proving

that the defendant committed the crime charged, it constitutes fundamental error. See

Gilley v. State, 996 So. 2d 936, 939 (Fla. 2d DCA 2008). Here, a literal reading of the

erroneous instructions in this case lessens the State’s burden of proof because it would

permit the jury to convict if it somehow believed that any of Appellant’s acts, such as

buying the victim and her friends several drinks, one of which they all thought may have

been spiked, was more than “simply thinking or talking about” committing the crime of

attempted sexual battery.

       The State argues that the jury’s verdict should stand, as everything in the case

from voir dire to closing arguments, other than the erroneous instructions, was clearly

focused on whether Appellant committed the crime of attempted sexual battery. Thus,

the State continues, it is unlikely that the jury got confused. “[W]hether the evidence of

guilt is overwhelming or whether the prosecutor has or has not made an inaccurate

instruction a feature of the prosecution’s argument are not germane to whether the error

is fundamental.” Reed v. State, 837 So. 2d 366, 369 (Fla. 2002). “It is fundamental error

if the inaccurately defined . . . element is disputed . . . , and the inaccurate definition ‘is

pertinent or material to what the jury must consider in order to convict.’” Id. (quoting

Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982)).




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       Under these circumstances, we find that the erroneous instructions to the jury

constitute fundamental error. Accordingly, we reverse Appellant’s conviction and remand

for a new trial. The other issues raised by Appellant lack merit.

       REVERSED AND REMANDED FOR NEW TRIAL.


EVANDER, J., and ATKIN, J.E., Associate Judge, concur.




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