         FIRST DISTRICT COURT OF APPEAL
                    STATE OF FLORIDA
                 _____________________________

                         No. 1D16-0079
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RAFAEL JACOB STOFFEL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

                          May 16, 2018

B.L. THOMAS, C.J.

    Appellant, Rafael Jacob Stoffel, appeals his conviction and
sentence for lewd or lascivious molestation of a child under the
age of twelve. § 800.04(5), Fla. Stat. (2014). Appellant raises two
issues on appeal: 1) whether the trial court erred by denying his
request for a jury instruction on the lesser-included offense of
battery; and 2) whether the trial court’s imposition of the
minimum-mandatory term of twenty-five years’ imprisonment
constitutes cruel and unusual punishment under both the Florida
and federal constitutions. * We find no merit as to the second


    * Per statute, a conviction for lewd or lascivious molestation
of a child under the age of twelve requires that a trial court
impose one of two sentencing options: 1) life imprisonment; or
issue, but write to address Appellant’s claim that he was entitled
to a jury instruction on battery.

                                 I.

     Appellant took his nine-year-old stepdaughter, S.P., to a
movie on a “daddy-daughter” date to celebrate her upcoming
birthday. A few minutes into the movie, Appellant asked if he
could touch S.P.’s breasts.     S.P. consented and Appellant
proceeded to put his hand underneath S.P.’s shirt and grabbed
her breasts. After the movie, Appellant apologized to S.P. for his
actions.

     Approximately a year after the incident, S.P.’s mother asked
S.P. if Appellant had ever touched her inappropriately. S.P. then
told her mother what occurred. S.P.’s mother then confronted
Appellant about the incident, and Appellant admitted to touching
S.P.’s breasts. Appellant expressed remorse for his actions and
self-reported the incident by calling the Department of Children
and Families (DCF). As a result, DCF sent its investigator and
an Okaloosa County Deputy Sheriff to S.P.’s home. Recorded
interviews were conducted with S.P., her mother, and Appellant.
S.P. reiterated what had occurred during the movie. During his
interview, Appellant stated that when he apologized to S.P for his
actions, she stated, “Well, I did say yes.” At the conclusion of the
interviews, Appellant was arrested and charged with lewd or
lascivious molestation of a child under the age of twelve.

     During trial, S.P. testified that Appellant touched her
breasts for approximately two to three minutes and told her that
she was “growing up” and “becoming quite the woman.”
Additionally, S.P. testified that she “felt like something was
wrong, but I wasn’t, like, exactly sure, and I didn’t really know
what was going on.” Appellant testified and admitted to touching
S.P.’s breasts for a few seconds. Both the State and defense


2) “a split sentence . . . of at least twenty-five years’
imprisonment and not exceeding life imprisonment, followed by
probation or community control for the remainder of the person’s
natural life.” § 775.082(4)(a), Fla. Stat. (2014).

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counsel stipulated that, while Appellant was touching S.P.,
Appellant told S.P. “your chest is getting big.”

     At the charge conference, defense counsel asked for a jury
instruction on the lesser-included offense of battery. The trial
court denied the request. The trial court, however, granted
defense counsel’s request for a jury instruction on the lesser-
included offense of attempted lewd or lascivious molestation and
a jury instruction for an unnatural and lascivious act.

     In its closing statement, the defense argued that Appellant
did not have the lascivious intent required to be found guilty of
lewd or lascivious molestation. The trial court then instructed
the jury:

         THE COURT: Lewd or lascivious molestation. To
    prove the crime of lewd or lascivious molestation, the
    State must prove the following three elements beyond
    and to the exclusion of a reasonable doubt: One, [S.P.]
    was under the age of 12 at the time of the offense. Two,
    Rafael Stoffel intentionally touched in a lewd or
    lascivious manner the breasts of [S.P.]. Three, Rafael
    Stoffel was 18 years of age or older at the time of the
    offense.

         The words “lewd” and “lascivious” mean the same
    thing. They mean a wicked, lustful, unchaste, licentious,
    or sensual attempt on the part of the person doing the
    act.

         Neither the victim’s loss of chastity nor consent is a
    defense to the crime charged. The Defendant’s ignorance
    of the victim’s age, the victim’s misrepresentation of her
    age, or the Defendant’s bona fide belief of the victim’s
    age is not a defense to the crime charged.

     During its deliberations, the jury asked the trial court the
following question: “Ask [Appellant] why he decided to reach
under her shirt. What was he thinking? What was his
reasoning?” The trial court responded by informing the jury that
“you have all of the evidence that’s been received for your

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consideration of the verdict in this matter.” The jury then
resumed its deliberations and found Appellant guilty as charged.

                                II.

     There are two categories of lesser-included offenses:
necessary and permissive. Sanders v. State, 944 So. 2d 203, 206
(Fla. 2006). “Necessarily lesser-included offenses are those
offenses in which the statutory elements of the lesser included
offense are always subsumed within those of the charged
offense.” Id. In contrast, a permissive lesser-included offense is
one where both offenses appear to be separate on the face of the
statutes, “but the facts alleged in the accusatory pleadings are
such that the lesser [included] offense cannot help but be
perpetrated once the greater offense has been.” Id. (quoting State
v. Weller, 590 So. 2d 923, 925 n.2 (Fla. 1991)) (emphasis added).

     A trial court must instruct the jury on a necessary lesser-
included offense. McKiver v. State, 55 So. 3d 646, 649 (Fla. 1st
DCA 2011). However, the instruction on a permissive lesser-
included offense must be given only if: 1) the charging document
alleges all the statutory elements of the requested permissive
lesser-included offense; and 2) some evidence is adduced at trial
that establishes those statutory elements. Khianthalat v. State,
974 So. 2d 359, 361 (Fla. 2008). Battery is listed as a lesser-
included offense of lewd or lascivious molestation. Fla. Std. Jury
Instr. (Crim.) 11.10(c). Accordingly, Florida courts have found
that battery is a permissive lesser-included offense of lewd or
lascivious molestation. Barnett v. State, 45 So. 3d 963, 964 (Fla.
3d DCA 2010). The question for this Court is thus two-fold:
1) did the State’s information allege the statutory elements of
battery, and if so, 2) did the evidence adduced at Appellant’s trial
establish those elements?

                                III.

    The elements of battery are an actual and intentional
touching or striking of another, without their consent.
§ 784.03(1)(a)1., Fla. Stat. The fact that Appellant intentionally
touched S.P. is uncontroverted. As a result, this Court’s analysis
centers on the remaining statutory element of consent.

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     The State’s second amended information alleged that
Appellant “on or about June 22, 2014, at and in Okaloosa County,
Florida, while being eighteen (18) years of age or older, 31 years
of age, did unlawfully and intentionally touch in a lewd or
lascivious manner the breasts, genitals, genital area, or buttocks,
or the clothing covering them, of a person less than twelve (12)
years of age, S.P., . . ., 9 years of age, or force or entice S.P. to
touch the perpetrator, in violation of Section 800.04(5)(b), Florida
Statutes.”

     The language of the information makes no mention of
Appellant’s touching being against the will of S.P., and there is
no evidence in the record to support the finding that S.P. did not
consent to Appellant’s touching. Certainly, S.P.’s testimony
indicates that at the time she felt uncertain or taken aback by
Appellant’s conduct. It is clear, however, that S.P.’s verbal
statements to Appellant before and after the incident
demonstrate that the touching was consensual.

     We find the holding in Barnett to be persuasive here. The
defendant in Barnett was charged with lewd or lascivious
molestation of a child under the age of twelve. 45 So. 3d at 964.
He requested a jury instruction on battery, which the trial court
denied. Id. Relying on Khianthalat, the Third District affirmed
the trial court, holding that the defendant was not entitled to a
jury instruction on battery, because “[t]he information did not
include any language stating that the touching was against the
will of the victim.” Id.

     The court in Barnett addressed Belser v. State, 854 So. 2d
223 (Fla. 1st DCA 2003), which predated Khianthalat. Barnett,
45 So. 3d at 964. In Belser, the defendant was charged with lewd
or lascivious molestation of a child under the age of sixteen. 854
So. 2d at 224. On appeal, the defendant argued that the trial
court erred by denying his request for a jury instruction on
battery. Id. This Court held that the defendant was entitled to
the instruction and reversed. Id. at 225. In our rationale, we
noted that “[t]he state concedes that simple battery is a
permissive lesser included offense, that unlawful touching was
alleged in the information, and that evidence of battery was

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presented at trial to support such a finding.” Id. at 224. But our
decision in Belser made no attempt to analyze the remaining
statutory element that the touch be against the will of the victim.
Consequently, the Third District in Barnett found that “Belser
does not survive the more recent decision of the Supreme Court
in Khianthalat.” 45 So. 3d at 964. We agree, and hold that
Belser has been abrogated by the rule of law articulated by the
Florida Supreme Court in Khianthalat.

     But Appellant argues that the fact that S.P. was under the
age of twelve satisfies the requirements of Khianthalat, because a
minor cannot give consent to an unlawful sexual touching; thus,
as a matter of law, Appellant’s acts were without S.P.’s consent.
This assertion is untenable, however, given our Court’s recent
affirmation that parents and those in loco parentis are privileged
to touch their children, non-abusively, against their will. Morris
v. State, 228 So. 3d 670 (Fla. 1st DCA 2017). As a matter of law,
Appellant could not commit a battery against his stepchild,
unless Appellant touched her in a lewd manner, which is
unlawful, and therefore the fondling would be a lewd and
lascivious molestation. Thus, either the act of fondling the nine-
year old’s breasts was a lewd molestation or it was no crime at
all, because a non-lewd touching of a child by a parent cannot
constitute a battery, absent evidence of physical injury or other
factors not alleged or proven here. See § 784.085, Fla. Stat.;
§ 827.03(1)(a)&(b), Fla. Stat.

     If it had received the battery instruction, the jury could have
only found Appellant guilty of battery if they found that the State
failed to prove the charged offense (as well as the lesser-included
offenses of attempted lewd or lascivious molestation or unnatural
and lascivious act) beyond a reasonable doubt. Such a finding
necessarily means that the jury would have determined that
Appellant did not act with a lascivious intent. Therefore, the
resulting touch between Appellant and S.P. could not constitute
battery, as a matter of law. Morris, 228 So. 3d at 673. Thus, the
only proper choices for the jury to consider were in fact provided:
Either Appellant committed a lewd or lascivious act, or he
committed no crime at all



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     The record is undisputed that Appellant touched S.P.’s
breasts.    Appellant admitted touching the victim’s breasts.
Therefore, the only issue remaining for the jury to resolve was
whether Appellant had a lascivious intent. Appellant asked S.P.
if she liked being touched, and Appellant commented that S.P.
was becoming “quite the woman.” Both parties stipulated that
Appellant told S.P. that “your chest is getting big.” Based on
these facts, the jury had sufficient evidence to conclude that
Appellant acted with lascivious intent.

    AFFIRMED.

OSTERHAUS and M.K. THOMAS, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Michael Ufferman, Michael         Ufferman   Law   Firm,   P.A.,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate,
Assistant Attorney General, Thomas H. Duffy, Assistant
Attorney General, Tayo Popoola, Assistant Attorney General,
and Steven Woods, Assistant Attorney General, Tallahassee.




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