                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

MARCUS JAMAL GRAHAM,                   NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D14-2474

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed July 8, 2015.

An appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.

Nancy A. Daniels, Public Defender, and David A. Henson, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellee.




ROWE, J.

      Marcus Jamal Graham appeals his convictions for two counts of lewd or

lascivious molestation, arguing that his convictions violate double jeopardy and that
the trial court improperly restricted his cross-examination of key witnesses. Because

Graham’s convictions are based on distinct acts and the trial court properly limited

cross-examination, we affirm.

        Graham was convicted of two counts of lewd or lascivious molestation for

touching the victim’s breasts and buttocks, or the clothing covering them, in

violation of section 800.04(5)(a), Florida Statutes (2013). The testimony at trial

established that there was no temporal break between the touchings and that they

occurred during the same episode. Because the touchings occurred during a single

criminal episode, Graham argues that his convictions violate double jeopardy. We

disagree.

        The United States and Florida Constitutions contain double jeopardy clauses

designed to prevent a person from receiving multiple punishments for the same

criminal offense. State v. Drawdy, 136 So. 3d 1209, 1213 (Fla. 2014). We review

de novo whether a double jeopardy violation has occurred. Id. To determine

whether the imposition of separate punishments for offenses occurring during the

course of a single criminal episode violates double jeopardy, courts use

the Blockburger* test. However, there is no constitutional prohibition against

multiple punishments for different offenses arising out of the same criminal episode

as long as the legislature intended to authorize separate punishments. Valdes v.


*
    Blockburger v. United States, 284 U.S. 299 (1932).
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State, 3 So. 3d 1067, 1069 (Fla. 2009); Partch v. State, 43 So. 3d 758, 759-60 (Fla.

1st DCA 2010).     Where, as in this case, there is no clear legislative intent and the

offenses occurred during the same episode, the court must determine whether the

offenses are predicated on more than one distinct act. Sanders v. State, 101 So. 3d

373, 374 (Fla. 1st DCA 2012). If the offenses are predicated on multiple acts, then

there is no double jeopardy violation. Id.

      Because the Florida sexual battery statutes and lewd or lascivious battery

statutes may be violated in multiple, alternative ways, convictions for “sexual acts

of a separate character and type requiring different elements of proof” do not violate

double jeopardy because the acts are “distinct criminal acts that the Florida

Legislature has decided warrant multiple punishments.” Meshell, 2 So. 3d at 135;

§§ 794.011(1)(h), 800.04(1)(a), Fla. Stat. (2013) (defining sexual activity and sexual

battery 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”). Similar

to the sexual battery and lewd or lascivious battery statutes, the lewd or lascivious

molestation statute also provides multiple, alternative ways to violate the statute.

The statute proscribes the intentional touching “in a lewd or lascivious manner the

breasts, genitals, genital area, or buttocks, or the clothing covering them . . . .” §

800.04(5)(a), Fla. Stat. (2013). Thus, the acts proscribed by the lewd or lascivious




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molestation   statute   are   distinct   criminal   acts   that   warrant   multiple

punishments. See Roberts v. State, 39 So. 3d 372, 374 (Fla. 1st DCA 2010).

      Here, Graham was convicted of two counts of lewd or lascivious molestation

and the information and the jury verdict demonstrate that the charges were

predicated on two distinct acts: touching of the victim’s breasts, or the clothing

covering them, and touching of the victim’s buttocks, or the clothing covering them.

For this reason, Graham’s multiple convictions for lewd or lascivious molestation

do not violate double jeopardy. We recognize that this holding conflicts with the

holdings in Cupas v. State, 109 So. 3d 1174 (Fla. 4th DCA 2013), and Webb v. State,

104 So. 3d 1153 (Fla. 4th DCA 2012); thus, we certify conflict with those decisions.

      Graham also asserts that the trial court erred when it prohibited defense

counsel from cross-examining the victim and her mother about a prior incident of

sexual abuse against the victim that occurred in Mississippi and from cross-

examining the victim’s mother about whether she was a victim of sexual abuse.

Graham argues that these lines of questioning would have demonstrated that his

innocent touches were misinterpreted by the victim. However, even if the prior

incidents of sexual abuse of the victim and the mother were marginally relevant, the

probative value of the testimony would be substantially outweighed by the prejudice

it would likely cause. Ware v. State, 124 So. 3d 388, 391 (Fla. 1st DCA 2013).




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Thus, the trial court did not abuse its discretion by restricting the cross-examination

of these witnesses about the prior incidents of sexual abuse.

      We, therefore, AFFIRM Graham’s convictions and sentences and CERTIFY

CONFLICT.

OSTERHAUS and BILBREY, JJ., CONCUR.




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