       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          NETRIEVAE WHITE,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-4674

                            [January 6, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. 13-
005543CF10A.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   One of the most basic tenets of criminal law is that “the state must
produce evidence of all the essential elements of the crime charged and
persuade the factfinder of the defendant’s guilt beyond a reasonable
doubt.” State v. Rolle, 560 So. 2d 1154, 1158 (Fla. 1990) (Barkett, J.,
concurring); see also Licata v. State, 88 So. 621, 622 (Fla. 1921). In this
case, the State failed to offer testimonial or documentary evidence of the
defendant’s age in a sexual battery prosecution. Therefore, we reverse the
convictions and remand for the entry of judgments of conviction for the
only lesser included offense presented to the jury, which did not require
proof of the defendant’s age.

    Netrievae White was convicted of two counts of sexual battery of a minor
by someone over the age of 18 against a person under 12. This crime is
defined as: “[a] person 18 years of age or older who commits sexual battery
upon, or in an attempt to commit sexual battery injures the sexual organs
of, a person less than 12 years of age commits a capital felony.” §
794.011(2)(a), Fla. Stat. (2013). “[T]he age of the defendant is an element
of capital sexual battery under section 794.011(2).” Glover v. State, 863
So. 2d 236, 238 (Fla. 2003).1

    The state failed to present any evidence of White’s age other than the
jury’s ability to observe him during the trial. From the complaint affidavit
filed to support the arrest, which was not introduced into evidence at trial,
it appears that White was 20 years old at the time of his arrest. The capias
lists White’s date of birth as February 3, 1991; the criminal incident
occurred on April 15, 2011.

    After the verdict, the court asked the defense attorney to file a written
motion for judgment of acquittal; there was some discussion about
vacations and the trial judge indicated that he would be flexible about the
timing of the renewed motion for judgment of acquittal. At a later hearing
on the motion, White’s lawyer raised for the first time that the state had
failed to prove he was 18. Over the state’s objection that the motion on
that ground was untimely, the trial court denied the motion on the merits.

    It seems unfair that such a technical ground for a judgment of acquittal
can be raised for the first time in a post-trial motion, when it is too late for
the state to reopen its case. See Adkins v. State, 729 So. 2d 955, 956 (Fla.
5th DCA 1998) (holding that a trial judge had the discretion to let the state
reopen its case to prove the age of a child sexual battery victim). However,
the Supreme Court has squarely held that a ground for a judgment of
acquittal may be asserted for the first time in a post-trial motion, pursuant
to Florida Rule of Criminal Procedure 3.380(c). State v. Stevens, 694 So.
2d 731, 733 (Fla. 1997). Rule 3.380(c) states that a motion for judgment
of acquittal may be renewed within 10 days after a jury returns a guilty
verdict “or such further time as the court may allow.” Fla. R. Crim. P.
3.380(c). Here, the trial court tacitly allowed the extension of time to file
the motion and ruled on the merits, instead of dismissing the motion as
untimely. See Hill v. State, 839 So. 2d 865, 866 (Fla. 4th DCA 2003)
(stating that an untimely motion for new trial leaves the court “without
jurisdiction to consider the motion”).

   The state contends that the jury’s opportunity to view the defendant
provided the circumstantial evidence that he was over 18 and relies heavily
on State v. Surin, 920 So. 2d 1162 (Fla. 3d DCA 2006). However, Surin

1The jury instructions for the crime charged in this case state that the following
three elements must be proven beyond a reasonable doubt: (1) Victim was less
than 12 years of age; (2) Defendant committed an act upon or with the victim in
which the defendant’s sexual organ penetrated or had union with the victim’s
sexual organ or anus; and (3) Defendant was 18 years of age or older. Fla. Std.
Jury Instr. (Crim.) 11.1.

                                       -2-
involved more extensive circumstantial evidence and a 36-year-old
defendant, so it does not control here.

    In Surin, the jury found the defendant guilty and he filed a motion for
new trial on the ground that the jury’s finding him over 18 was contrary
to the weight of the evidence. Id. at 1164. The state argued that there was
sufficient circumstantial evidence of the defendant’s age to support the
verdict. Id. Treating the motion as a partial judgment of acquittal, the
trial court granted the motion. Id. The trial court entered judgments of
conviction under “section 794.011(2)(b) of the Florida Statutes,” a lesser-
included offense that did not require proof of age.2 Id.

    The third district could find no case holding that circumstantial
evidence was sufficient to prove a defendant’s age in a sexual battery
prosecution, but noted, “the Florida Supreme Court has long accepted that
the State may prove an essential element of an offense through
circumstantial evidence.” Id. at 1164 (citation omitted). The court cited
to Brown v. State, 802 So. 2d 434, 436–37 (Fla. 4th DCA 2001), where we
affirmed the denial of a motion for judgment of acquittal in a child abuse
case because the record contained “sufficient circumstantial evidence that
the victim was a child less than eighteen years of age.” Id.

   Surin held that there was sufficient circumstantial evidence that the
defendant was over 18, pointing to: (1) “most notably,” the jury’s
opportunity to observe him throughout the trial; (2) evidence of the year
that the defendant married the victim’s mother; (3) that he cared for her
children; (4) the victim referred to the defendant as “daddy;” (5) the
defendant was old enough to enter the country without parents or other
family members; and (6) the defendant’s wife referred to him as an adult
throughout her testimony. Id. at 1165. The court concluded that the
combination of this evidence was sufficient for the jury to find the
defendant was over the age of 18. Id.; but see McMichael v. State, 152 So.
3d 821, 822 (Fla. 2d DCA 2014) (distinguishing Surin where the state had
to prove the victim was 65 or over, noting the state brought no evidence of
age and the record was devoid of additional circumstantial evidence;
therefore the conviction was reversed).

   Surin involved weightier circumstantial evidence than is present in this
case, where the primary evidence was the defendant’s appearance at trial.
Here, the circumstantial evidence fails to exclude the reasonable
hypothesis of innocence that White was under 18. See State v. Law, 559

2In this case, section 794.011(2)(b), Florida Statutes (2012) was not submitted to
the jury as a lesser included offense; the only lesser included offense on which
the jury was charged was misdemeanor battery.

                                       -3-
So. 2d 187, 188 (Fla. 1989). First, unlike the Surin defendant who was 36
at the time of trial and 29 at the time of his crime, White was just 20 at
the time of the crime, only two years over the age 18 element of the crime
charged. Although the victim’s mother testified that she was 28 and grew
up with White, this testimony does not rule out an age gap.

    For these reasons, we reverse the two sexual battery convictions and
remand to the circuit court with directions to enter judgments for the only
lesser included offense submitted to the jury and for resentencing. We
find no other trial error in the case, but we direct the circuit court to enter
a judgment of acquittal as to Count I, consistent with the court’s ruling at
trial. See State v. Houghtailing, 704 So. 2d 163 (Fla. 5th DCA 1997);
Murphy v. State, 16 So. 3d 269 (Fla. 5th DCA 2009).

   Affirmed in part, reversed in part, and remanded.

GROSS, GERBER and KLINGENSMITH, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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