       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                          GUSTAVO A. REYES,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-4577

                           [September 3, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Stephen Rapp, Judge; L.T. Case No. 2011CF009933AMB.

  Carey Haughwout, Public Defender, and James McIntire, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph Tringali,
Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.

    Gustavo Reyes appeals his convictions and sentences for one count of
sexual battery by a person over age eighteen of a person under the age of
twelve, one count of lewd and lascivious molestation, and one count of
battery. He makes the following arguments on appeal: 1) the court abused
its discretion by denying two of Appellant’s juror challenges during voir
dire, 2) Appellant’s conviction for lewd and lascivious molestation must be
reversed because the jury instruction on the charge did not mirror the
charging information, 3) the trial court abused its discretion when it
denied Appellant’s motion for judgment of acquittal for sexual battery, and
4) the court abused its discretion by admitting statements made by the
Victim to her mother under the child-victim hearsay exception. We affirm
in all respects and write only to address Appellant’s argument regarding
the discrepancy between the information and jury instruction on his lewd
and lascivious molestation conviction.
Background

   This is a child molestation case stemming from events that occurred
between Appellant and a three-year-old extended relative (the “Victim”).
One day, the Victim’s mother witnessed Appellant French-kissing the
Victim. She immediately separated the Victim from Appellant, and the
Victim told her mother that Appellant touched her private parts with his
fingers and genitalia. After the Victim’s mother called the police, Child
Protective Services interviewed the Victim, who confirmed that Appellant
molested her. Additionally, a physical examination of the Victim revealed
that she had “nonspecific vaginitis.”

    Based on this information, law enforcement conducted a Mirandized
interview of Appellant, who admitted that he kissed the Victim, that he
digitally penetrated the Victim’s vagina, and that he rubbed his penis on
the Victim’s vagina while she was wearing underwear. Appellant was
subsequently arrested and charged by amended information with one
count of sexual battery and three counts of lewd and lascivious
molestation. The sexual battery count (Count I) was predicated on the
allegation that Appellant penetrated the Victim’s vagina with his finger.
The three lewd and lascivious molestation counts were predicated on the
allegations that: Appellant touched the Victim’s vagina with his finger
(Count II), Appellant touched the Victim’s vagina with his penis (Count III)
and Appellant “tongue kissed” the Victim (Count IV).

    After considering the evidence, the jury found Appellant guilty of Count
I (sexual battery), Count II (lewd and lascivious molestation), Count III
(lewd and lascivious molestation), and of the lesser offense of battery on
Count IV (originally lewd and lascivious molestation).            The court
adjudicated Appellant guilty of Count I, Count III, and Count IV, and
imposed concurrent sentences of life without the possibility of parole on
Count I, twenty-five years on Count III, and credit for time served on Count
IV. The court did not adjudicate or sentence Appellant on Count II, as the
state abandoned the charge due to double jeopardy concerns.

Analysis

   Appellant takes issue with the jury instruction provided on Count III,
lewd and lascivious molestation, which was predicated on the allegation
that Appellant touched the Victim’s vagina with his penis. Appellant did
not object to the instructions given to the jury and, therefore, this Court
can only review for fundamental error. “An erroneous jury instruction is
fundamental when it reaches down into the validity of the trial itself to the
extent that a verdict of guilty could not have been obtained without the

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assistance of the alleged error.” Abbott v. State, 958 So. 2d 1140, 1142
(Fla. 4th DCA 2007) (citations and quotations omitted).

    “A defendant is entitled to have the charge against him proved
substantially as alleged in the indictment or information and cannot be
prosecuted for one offense and convicted and sentenced for another,
though the offenses are of the same general character or carry the same
penalty.” Zwick v. State, 730 So. 2d 759, 760 (Fla. 5th DCA 1999).
“‘[W]here an offense may be committed in various ways, the evidence must
establish it to have been committed in the manner charged in the
indictment.’” Deleon v. State, 66 So. 3d 391, 393 (Fla. 2d DCA 2011)
(quoting Long v. State, 92 So. 2d 259, 260 (Fla. 1957)). Thus, when the
state limits a charging document to a specified factual theory, the jury
instruction should not go outside of that factual theory. See Trahan v.
State, 913 So. 2d 729, 730 (Fla. 5th DCA 2005).

   The challenged instruction provided that the jury could find Appellant
guilty of Count III if it found that he “intentionally touched in a lewd or
lascivious manner the clothing covering the vagina and/or vaginal area of
[the Victim] with his penis.” Appellant argues that the inclusion of the
phrase “the clothing covering” was impermissible since the information on
Count III read as follows:

    COUNT 3: GUSTAVO A. REYES . . . did unlawfully and
    intentionally touch [the Victim]. A person less than 12 years of
    age, in a lewd and lascivious manner the breast, genitals,
    genital area, or buttocks, or the clothing covering them {or} did
    force or entice [the Victim] to so touch GUSTAVO A. REYES, in
    that GUSTAVO A. REYES did cause his penis to touch the
    vaginal area, or vaginal genitalia area of [the Victim], contrary
    to Florida Statute 800.04(5)(a) and (b).

Appellant’s argument implies that there is a substantive difference
between touching the clothes covering a body part and touching an actual
body part. We disagree.

   The constructs of the English language ignore the fact that a person is
most likely wearing clothing when referencing the act of touching another’s
body, as the distinction is irrelevant to the act. By way of example, an
information charging a defendant with battery would never allege that the
defendant committed battery by “striking the victim on the shirt covering
his arm.” This is because the presence of clothing is irrelevant to whether
the defendant struck the victim’s arm. In this vein, even if the jury
instruction had not included the challenged “clothes covering” language,

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a reasonable jury would have understood that Appellant could still have
“touched” the Victim’s vagina with his penis even if the “touching” took
place over a pair of underwear. Accordingly, the difference between the
information and the jury instruction on Count III was, at the most, a
matter of semantics and did not rise to the level of fundamental error. See
Johns v. State, 838 So. 2d 635, 637 (Fla. 5th DCA 2003) (evidence that
defendant attempted to place the victim’s penis on his mouth supported
jury’s finding that defendant committed act charged in the information,
which was that the defendant placed the victim’s penis in his mouth as
there is no material difference between the two acts).

   Based on the foregoing, we affirm Appellant’s judgment and sentence.

   Affirmed.

TAYLOR and FORST, JJ., concur.

                           *        *         *

   Not final until disposition of timely filed motion for rehearing.




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