       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          STEPHEN OLENCHAK,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-1862

                            [January 20, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 12-
3380CF10A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

    The defendant appeals from his conviction for sexual battery upon a
person twelve years of age or older in violation of section 794.011(5),
Florida Statutes (2012), as a lesser included offense of sexual battery upon
a person twelve years of age or older when the victim is physically helpless
to resist in violation of section 794.011(4)(a), Florida Statutes (2012). The
defendant argues that the trial court erred in three respects: (1) overruling
his objection to the standard jury instruction on the lesser included
offense for which he was convicted; (2) denying his motion to admit
evidence that the victim made similar allegations against another person
twelve years earlier; and (3) ordering as a condition of probation that he
have no unsupervised contact with anyone under eighteen years of age.
We affirm on all three arguments. We write to address the first argument.

   The first argument involved Florida Standard Jury Instruction in
Criminal Cases 11.3, which the state tailored to its evidence as follows:
         To prove the crime of Sexual Battery upon a Person 12
      Years of Age or Older, the State must prove the following three
      elements beyond a reasonable doubt:

      1. [The victim] was 12 years of age or older.

      2. [The defendant] committed an act upon [the victim] in
      which the finger of [the defendant] penetrated . . . the vagina
      of [the victim].

      3. The act was committed without the consent of [the victim].

      “Consent” means intelligent, knowing, and voluntary consent
      and does not include coerced submission. Consent does not
      mean the failure by the alleged victim to offer physical
      resistance to the offender.

   The defendant objected to standard jury instruction 11.3 because it did
not include the word “intentional.” The defendant raised this objection
because it was his counsel’s “understanding that sexual battery is a
specific intent crime . . . which would require the word ‘intentional,’” and
his theory of defense was that his contact with the victim was not
intentional. Specifically, he testified that, while he was sleeping next to
the victim, the victim initiated the contact by moving his hand towards her
crotch area. The defendant’s expert witness, a psychiatrist, theorized that
the victim was having a “hypnagogic experience,” that is, experiencing a
hallucination during a period when the person is neither fully conscious
nor completely asleep. According to the defendant’s witness, a woman
having a “hypnagogic experience” could take a male’s hand and bring it to
her groin.

   The trial court overruled the defendant’s objection to standard jury
instruction 11.3.

    We conclude that the trial court did not abuse its discretion in
overruling the defendant’s objection. See Ulysse v. State, 174 So. 3d 464,
466 (Fla. 4th DCA 2015) (“Where the standard instructions are given, the
defendant bears the burden of demonstrating that the trial court abused
its discretion.”) (citing Stephens v. State, 787 So. 2d 747, 755-56 (Fla.
2001)).

   To have been entitled to a special jury instruction to include the word
“intentional” in standard jury instruction 11.3, the defendant must have
proved, among other things, that standard jury instruction 11.3 did not

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adequately cover his theory of defense that sexual battery is a specific
intent crime, and his contact with the victim was not intentional. See
Stephens, 787 So. 2d at 756 (to be entitled to a special jury instruction, a
defendant must prove: “(1) the special instruction was supported by the
evidence; (2) the standard instruction did not adequately cover the theory of
defense; and (3) the special instruction was a correct statement of the law
and not misleading or confusing.”) (emphasis added; footnotes omitted).

    Here, the defendant did not prove that standard jury instruction 11.3
did not adequately cover his theory of defense. The defendant’s trial
counsel was mistaken in arguing that sexual battery is a specific intent
crime. Rather, “[s]exual battery is a general intent crime.” Holland v.
State, 773 So. 2d 1065, 1071 (Fla. 2000) (citation omitted). Because
sexual battery is a general intent crime, “Florida law . . . does not require
that a defendant act with specific intent.” Doe v. Celebrity Cruises, Inc.,
394 F.3d 891, 917 (11th Cir. 2004) (citations omitted). See also Frey v.
State, 708 So. 2d 918, 919 (Fla. 1998) (“[T]he most common usage of
‘specific intent’ is to designate a special mental element which is required
above and beyond any mental state required with respect to the actus reus
of the crime.”) (citations omitted).

   Because Florida law does not require that a defendant commit sexual
battery with specific intent, instruction 11.3’s plain language in the second
element – that the defendant “committed an act” upon the victim in which
his finger penetrated the victim’s vagina – correctly conveyed to the jury
that sexual battery is a general intent crime and not a specific intent crime.
Thus, to the extent instruction 11.3 required the state to prove the
defendant’s general intent – to have “committed an act” upon the victim in
which his finger penetrated the victim’s vagina – the instruction
adequately required the state to disprove the defendant’s theory of defense
that his contact with the victim was not intentional.

   It appears to us that the reason why the defendant’s intent has become
an issue in this appeal is not because the trial court’s use of standard jury
instruction 11.3 allegedly was improper. Rather, it is because the state
made an improper rebuttal argument to which the defendant’s trial
counsel did not object. Specifically, the defendant first argued in closing:

      They have to prove to you beyond and to the exclusion of every
      reasonable doubt that [the defendant] intentionally,
      intentionally took his hand and put it inside her vagina. Have
      they proven that to you? Do you have an abiding conviction
      of guilt that that is what he did?


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In response, the state improperly argued in rebuttal:

      Ladies and gentlemen, you were just told . . . that the State
      had to prove that the defendant intentionally committed this
      act. I would say to you that that is a deliberate misstatement
      of the law. The Judge read you the law, the elements of sexual
      battery and nowhere in that instruction did he tell you that
      the State had to prove intent. Intent is not an element of this
      crime. Don’t hold me to that burden that the defense attorney
      had just laid out for me. He has increased my burden by
      requiring me to prove an element of a crime that I don’t have to
      prove to prove my case.

(emphasis added).

    As stated above, although sexual battery is not a specific intent crime,
it is a general intent crime. Thus, the state’s rebuttal argument that
“[i]ntent is not an element of this crime” was a misstatement of the law.
For whatever reason, the defendant’s trial counsel did not object to this
misstatement of the law.

    We cannot discern from the face of the record if the defendant’s trial
counsel had a reason not to object or simply was ineffective. Thus, our
affirmance is without prejudice to the defendant filing a Florida Rule of
Criminal Procedure 3.850 motion based on ineffective assistance of
counsel.

   In reaching our decision, we have observed that the judgment and
scoresheet indicates the defendant was convicted of violating section
794.011(4)(a), Florida Statutes (2012). That is incorrect. The defendant
was convicted of sexual battery upon a person twelve years of age of older
in violation of section 794.011(5), Florida Statutes (2012), as a lesser
included offense of sexual battery upon a person twelve years of age or
older when the victim is physically helpless to resist in violation of section
794.011(4)(a), Florida Statutes (2012). We instruct the trial court to
correct the judgment and scoresheet accordingly.

   Affirmed with instructions.

GROSS and KLINGENSMITH, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.

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