          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                     NEEMIAS RAMIREZ RAMOS,
                            Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D18-1035

                             [June 5, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Barry Cohen, Senior Judge; L.T. Case No.
2015CF012487AXXXMB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The importance of correctly instructing the jury on the elements of a
crime is raised in this appeal of the defendant’s conviction and sentence
on two counts of sexual battery on a person less than twelve years of age.
He argues, and we agree, that the court erred in its instructions to the
jury. We reverse and remand the case for a new trial.

   In an Amended Information, the State charged the defendant with two
counts of sexual battery by “causing his penis to penetrate or have union
with the butt of [the victim].”     (Emphasis added).      The Amended
Information was unchallenged. The case proceeded to trial.

   At trial, testimony revealed that the victim lived with her father and
stepmother during the week and with her mother and her significant
other—the defendant—on the weekend. When the stepmother picked the
victim up from school following her weekend visit with her mother, she
noticed the victim seemed sad and quiet. When she asked the victim if
anything had happened and after some prodding, the victim began to cry
and told her the defendant had inappropriate contact with her. The victim
was seven years old at the time. 1

   After talking to the victim, the stepmother told the father, who called
the police. The next day the father and the stepmother took the victim to
the clinic to be examined.

   By the time of trial, the victim was ten years old. She had difficulty
remembering things. Suffice it to say, the victim testified about the
defendant’s actions, but indicated the inappropriate contact was with her
“butt.” And, she was inconsistent in her description of what precisely
happened.

   The detective testified that he contacted the defendant immediately
after the victim’s child protection team (“CPT”) interview. The defendant
voluntarily went to the police station where the detective advised him he
was not under arrest, was free to leave at any time, and read him his
Miranda warnings. The defendant agreed to talk. The defendant initially
denied any wrongdoing, but eventually admitted inappropriate contact.
His testimony was inconsistent on precisely what happened.

    The parties discussed the jury instructions with the court before
proceeding to closing arguments. The defendant did not object to the
State-prepared instructions but requested a lesser included offense
instruction. Regarding the elements of the crime, the court instructed the
jury that: “[The defendant] committed an act upon [the victim] in which
the sexual organ of [the defendant] penetrated or had union with the butt
of [the victim].” (Emphasis added). The instructions further defined union
as contact.

   The jury returned a guilty verdict on both counts. The court sentenced
the defendant to life on both counts. From his conviction and sentence,
the defendant now appeals.

   The defendant first argues the trial court erred in instructing the jury
on the elements of sexual battery by using the word “butt” rather than
anus. He argues this amounted to fundamental error. The State responds
the trial court did not fundamentally err in using the informal term “butt”
rather than the statutory term anus because the totality of the
circumstances showed the victim used “butt” to refer to her anus.


1Because the specific details of what occurred are unnecessary to our holding,
we decline to include them in this opinion.

                                      2
    “‘Generally speaking, the standard of review for jury instructions is
abuse of discretion,’ but that ‘discretion, as with any issue of law is strictly
limited by case law.’” Krause v. State, 98 So. 3d 71, 73 (Fla. 4th DCA 2012)
(citation omitted). Where a party fails to object to the jury instructions, we
must determine if the error is fundamental. Barnett v. State, 121 So. 3d
643, 646 (Fla. 4th DCA 2013).

   The defendant did not object to the jury instructions during the
charging conference. He only requested a lesser included offense. This
relegates our review to fundamental error.

    “Fundamental error is error that ‘reaches 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.’” Krause, 98 So. 3d at 73
(citation omitted). “[W]here the instruction pertains to a disputed element
of the offense and the error is pertinent or material to what the jury must
consider to convict,” fundamental error occurs. Haygood v. State, 109 So.
3d 735, 741 (Fla. 2013).

   Sexual battery is defined as “oral, anal, or vaginal penetration by, or
union with, the sexual organ of another or the anal or vaginal penetration
of another by any other object . . . .” § 794.011(1)(h), Fla. Stat. (2015).
“Union permits a conviction based on contact with the relevant portion of
anatomy . . . .” Richards v. State, 738 So. 2d 415, 418 (Fla. 2d DCA 1999).
In short, union means contact. Tirado v. State, 219 So. 3d 146, 149 (Fla.
4th DCA 2017).

   Here, the Amended information alleged in both counts that the
defendant committed sexual battery by “causing his penis to penetrate or
have union with the butt of [the victim].” (Emphasis added). The
information cited section 794.011, which does not use the term butt.

   The jury instructions tracked the language of the Amended information
by using the term “butt”—rather than anus—and provided the following
elements of sexual battery:

      1. [The defendant] committed an act upon [the victim] in
      which the sexual organ of [the defendant] penetrated or had
      union with the butt of [the victim].

      2. At the time of the offense, [the victim] was less than 12
      years of age.

      3. At the time of the offense, [the defendant] was 18 years of

                                       3
      age or older.

   The instructions further defined union as contact. Significantly, the
instructions did not define “butt” or specify that the defendant’s act must
involve contact with or penetration of the victim’s anus.

   A review of the record establishes that the issues of “union” and
“penetration” were in dispute. It also reflects the victim’s testimony that
referred to her “butt” even though the defendant referred to the correct
anatomical term in part of his statement to law enforcement. This made
the distinction between “anus” and butt or buttocks critical to the jury’s
consideration of the defendant’s guilt. Given the instruction, and the
disputed factual issues, the jury was left to deliberate and convict the
defendant based on conduct less than that required by statute for the
crime of sexual battery and its consequent life sentence. This is
fundamental error. Haygood, 109 So. 3d at 741. For this reason, we
reverse.

   Reversed and remanded for a new trial.

CIKLIN and KLINGENSMITH, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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