               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



JAE-IL BYUN,                                )
                                            )
             Appellant,                     )
                                            )
v.                                          )    Case No. 2D17-3838
                                            )
STATE OF FLORIDA,                           )
                                            )
             Appellee.                      )
                                            )

Opinion filed March 6, 2019.

Appeal from the Circuit Court for Polk
County; J. Kevin Abdoney, Judge.

Cassandra Snapp and Mark L. Horwitz
of Law Offices of Horwitz & Citro, P.A.,
Orlando; and Bennett R. Ford, III, of The
Ford Law Office, P.A., Orlando, for
Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Appellee.


ROTHSTEIN-YOUAKIM, Judge.

             After unsuccessfully attempting to dismiss the latter charge on double-

jeopardy grounds, Jae-Il Byun pleaded no contest to unlawfully traveling to meet a

minor, in violation of section 847.0135(4)(a), Florida Statutes (2015), and to attempted
lewd battery, in violation of sections 800.04(4)(a)(1) and 777.04(1), Florida Statutes

(2015). Byun reserved his right to challenge the denial of his motion to dismiss on

appeal from the final judgment, and we now affirm.

                         Factual and Procedural Background

              At approximately 11:00 p.m. on June 2, 2016, Byun began communicating

online with an undercover Polk County Sheriff's detective who was posing as a

fourteen-year-old girl ("the victim"). During the online conversations, Byun offered to

pay the victim to engage in sexual activity, and he arranged to go to her "home." Byun

arrived at the agreed-upon location at approximately 12:30 a.m. on June 3, 2016,

having stopped along the way to get cash and buy condoms. He was arrested after he

knocked on the front door.

              Based on this conduct, the State charged Byun in count one with the

unlawful travel (a second-degree felony) and in count two with the attempted lewd

battery (a third-degree felony).1 Byun moved to dismiss count two on double-jeopardy

grounds, arguing that the elements of attempted lewd battery are entirely subsumed

within the elements of unlawful travel. Ultimately, the trial court determined that both

charges had arisen out of the same conduct in a single criminal episode but concluded

that each charge required proof of an element that the other did not:

              Traveling to Meet a Minor requires the perpetrator use an
              enumerated electronic device or service to facilitate
              proscribed communication whereas no such element is
              necessary to prove an Attempted Lewd Battery. Further,
              Attempted Lewd Battery necessarily requires proof of failure


              1The State also initially charged Byun in count three with unlawful use of a
two-way communications device, in violation of section 934.215, Florida Statutes
(2015). The trial court granted Byun's motion to dismiss that count on double-jeopardy
grounds.


                                           -2-
              to commit Lewd Battery, or prevention or interception in its
              commission. No such requirement exists for Traveling to
              Meet a Minor.

                                         Analysis

              The constitutional prohibition against double jeopardy does not preclude

multiple punishments for different offenses arising out of the same conduct in a single

criminal episode so long as the legislature intends to authorize separate punishments.

See Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). Here, the parties identify no clear

expression of legislative intent with regard to unlawful travel and attempted lewd battery,

and we have discerned none. Thus, we must determine whether Byun's convictions

and sentences for both offenses violate the Blockburger2 test codified in section

775.021(4), Florida Statutes (2015). See Valdes, 3 So. 3d at 1070. That section

provides:

              (a) Whoever, in the course of one criminal transaction or
              episode, commits an act or acts which constitute one or
              more separate criminal offenses, upon conviction and
              adjudication of guilt, shall be sentenced separately for each
              criminal offense; and the sentencing judge may order the
              sentences to be served concurrently or consecutively. For
              the purposes of this subsection, offenses are separate if
              each offense requires proof of an element that the other
              does not, without regard to the accusatory pleading or the
              proof adduced at trial.

                     (b) The intent of the Legislature is to convict and
              sentence for each criminal offense committed in the course
              of one criminal episode or transaction and not to allow the
              principle of lenity . . . to determine legislative intent.
              Exceptions to this rule of construction are:

                          1. Offenses which require identical
                     elements of proof.



              2Blockburger   v. United States, 284 U.S. 299 (1932).


                                           -3-
                           2. Offenses which are degrees of the
                      same offense as provided by statute.

                             3. Offenses which are lesser offenses
                      the statutory elements of which are subsumed
                      by the greater offense.

§ 775.021(4).

                Under this analysis, we look to elements, not to facts. See Roughton v.

State, 185 So. 3d 1207, 1210 (Fla. 2016) ("[T]he plain language of section

775.021(4)(a)[ ] requires that the elements of the offenses be compared 'without regard

to the accusatory pleading or the proof adduced at trial.' " (emphasis omitted)); State v.

Carpenter, 417 So. 2d 986, 988 (Fla. 1982) ("In applying the Blockburger test the courts

look only to the statutory elements of each offense and not to the actual evidence to be

presented at trial or the facts as alleged in a particular information." (citing Whalen v.

United States, 445 U.S. 684, 694 n.8 (1980))). To establish a violation of section

847.0135(4)(a), the evidence must establish that the defendant (1) knowingly traveled

either within this state, to this state, or from this state, or attempted to do so (2) for the

purpose of engaging in any illegal act described in chapters 794, 800, or 827, or to

otherwise engage in other unlawful sexual conduct (3) with a child or with a person that

the defendant believed to be a child (4) after using a computer or other device capable

of electronic communication (5) to seduce, solicit, lure, or entice the child or person that

the defendant believed to be a child to engage in the illegal act or other unlawful sexual

conduct or to attempt to do so. To establish a violation of section 800.04(4)(a)(1), the

evidence must establish that the defendant "engag[ed] in sexual activity with a person

12 years of age or older but less than 16 years of age." Thus, to establish an attempt to

violate section 800.04(4)(a)(1), the evidence must clearly establish (1) that the



                                              -4-
defendant intended to engage in sexual activity with a person twelve years of age or

older but less than sixteen years of age and (2) that the defendant committed an overt

act toward doing so. See § 777.04(1).

              What is not so clear is whether, as the trial court concluded, attempt also

requires proof of a third element: that the defendant failed to successfully complete the

crime. See, e.g., Fla. Std. Jury Instr. (Crim.) 5.1 (requiring jury to find that defendant

"would have committed the crime except that a. someone prevented [him] [her] from

committing the crime of (crime attempted) . . . [or] b. [he] [she] failed"); Duclos-Lasnier v.

State, 192 So. 3d 1234, 1238 (Fla. 2d DCA 2016) (stating that attempt has three

elements, one of which being that the defendant failed to successfully complete the

crime (quoting Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA 2010))); Harris v. State,

76 So. 3d 1080, 1082-83 (Fla. 2d DCA 2011) ("The evidence here did not support and

the jury obviously did not find that someone prevented Harris from committing the

robbery in count one or that he failed to commit the robbery. Therefore, the jury did not

find beyond a reasonable doubt that Harris committed an attempted robbery."); Barrios

v. State, 75 So. 3d 374, 377 (Fla. 4th DCA 2011) ("Criminal attempt requires three

elements: the intent to commit a crime, an overt act towards its commission, and failure

to successfully complete the crime." (quoting Bist, 35 So. 3d at 941)); Bist, 35 So. 3d at

941 (same (citing Morehead v. State, 556 So. 2d 523, 524 (Fla. 5th DCA 1990))). But

see, e.g., Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988) ("Essentially, we have

required the state to prove two general elements to establish an attempt: a specific

intent to commit a particular crime, and an overt act toward its commission." (footnote

omitted)); State v. Coker, 452 So. 2d 1135, 1136 (Fla. 2d DCA 1984) ("An attempt to




                                            -5-
commit a crime consists of two essential elements: a specific intent to commit the

crime, and an overt act, beyond mere preparation, done toward its commission. The

intent and the act must be such that they would have resulted, but for the interference of

some cause preventing the carrying out of the intent, in the completed commission of

the crime."); Berger v. State, 259 So. 3d 933, 934 (Fla. 5th DCA 2018) ("Thus, 'the two

elements comprising an attempt to commit a crime are (1) a specific intent to commit

the crime and (2) an overt act done toward its commission that is beyond mere

preparation.' " (quoting Mizner v. State, 154 So. 3d 391, 397 (Fla. 2d DCA 2014)));

State v. Ortiz, 766 So. 2d 1137, 1143 (Fla. 3d DCA 2000) (" 'By its nature, attempt

occupies the conceptual area between the non-commission of the greater offense and

the completion of the greater offense itself.' The two necessary elements for an attempt

to commit a crime [are]: (1) a specific intent to commit a particular crime and (2) an

overt act toward its commission." (first quoting Wilson v. State, 622 So. 2d 31, 36 (Fla.

1st DCA 1993), approved, 635 So. 2d 16 (Fla. 1994); then citing Geldreich v. State, 763

So. 2d 1114, 1118 (Fla. 4th DCA 1999))); Geldreich, 763 So. 2d at 1118 ("Two

necessary elements establish an attempt to commit a crime: 'a specific intent to commit

a particular crime, and an overt act toward its commission.' " (quoting State v. Walker,

705 So. 2d 589, 591 (Fla. 4th DCA 1997))). It is to this question that Byun and the State

devote the bulk of their attention and argument on appeal.

              But it is a question that we need not resolve today, because in their

singular focus, the parties have wholly failed to apprehend, let alone address, the




                                           -6-
significance of a much clearer difference between the elements of the two offenses.3

Unlawful travel requires proof that the child victim is less than 18 years old. See §

847.001(3) (defining "child pornography" as "any image depicting a minor engaged in

sexual conduct"); § 847.001(8) (defining "minor" as "any person under the age of 18

years"); Fla. Std. Jury Instr. (Crim.) 11.17(c) (defining "child" for purposes of section

847.0135(4)(a) as "any person, whose identity is known or unknown, less than 18 years

of age"); cf. § 847.001(1) (defining "adult" as "a person 18 years of age or older").

Attempted lewd battery, however, requires proof that the intended child victim is at least

twelve years' old but less than sixteen years' old. § 800.04(4)(a)(1); see also Glover v.

State, 863 So. 2d 236, 238 (Fla. 2003) (holding that age of the victim is an essential

element of capital sexual battery).

              Accordingly, attempted lewd battery has an element that unlawful travel

does not have,4 and Byun's argument that attempted lewd battery is subsumed within

unlawful travel, i.e., that every unlawful travel will necessarily and inevitably be

chargeable as an attempted lewd battery, fails. See Aiken v. State, 742 So. 2d 811,



              3The   court brought this difference to the parties' attention for the first time
at oral argument, and we were not foreclosed from doing so despite that no one had
ever raised it previously: double jeopardy claims based on undisputed facts present
pure questions of law, Graham v. State, 207 So. 3d 135, 137 (Fla. 2016), and we may
affirm the trial court for any reason that the record supports, cf. Shands Teaching Hosp.
& Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So. 3d 204, 212 (Fla. 2012) ("[A]n appellate
court should affirm a trial court that 'reaches the right result, but for the wrong reasons' if
there is 'support for the alternative theory or principle of law in the record before the trial
court.' " (quoting Robertson v. State, 829 So. 2d 901, 906-07 (Fla. 2002))).
                That said, we note and appreciate defense counsel Ford's efforts at oral
argument to balance his duty to zealously represent his client with his duty of candor to
the court when confronted with this basis for affirmance for the first time.
              4And,   obviously, unlawful travel has elements that attempted lewd battery
does not have.


                                             -7-
812 (Fla. 2d DCA 1999) (en banc) (holding that only necessarily lesser included

offenses are subsumed pursuant to section 775.021(4)(b)(3) and receding from

language in a prior case "which states that a defendant may not be convicted of a

permissive lesser included offense when he has been convicted of the greater offense,

with both offenses arising out of the same criminal act" (citing State v. McCloud, 577 So.

2d 939, 941 (Fla. 1991))); State v. Sholl, 18 So. 3d 1158, 1163 (Fla. 1st DCA 2009)

("Nor can it be argued that lewd or lascivious exhibition is a necessarily included lesser

offense of transmitting material harmful to a minor via electronic device. . . . [T]he

transmission charge requires the victim to be under 18, while the exhibition charge

requires the victim to be under 16. Therefore, if a defendant transmits material harmful

to a minor via electronic device to a 17-year old victim, he/she may be charged under

the transmissions statute but not the exhibition statute, as the victim is over 16 years of

age."). Indeed, had Byun's putative victim been sixteen years' old, Byun would still be

guilty of unlawful travel,5 but, as a matter of law, he could not be guilty of attempted

lewd battery because of the age requirement. Byun's conduct, therefore, constituted

two separate offenses that the legislature intended be punished separately, and the trial

court correctly denied his motion to dismiss on double-jeopardy grounds.

                                        Conclusion

              Applying the Blockburger "same elements" test, we hold that Byun's

convictions for unlawful travel under section 847.0135(4)(a) and for attempted lewd




              5Specifically,
                           it would have been a second-degree felony for Byun, who
was twenty-four years' old at the time of the offense, to have engaged in sexual activity
with a sixteen year old. See § 794.05(1), Fla. Stat. (2015).


                                            -8-
battery under sections 800.04(4)(a)(1) and 777.04(1) do not violate the prohibition

against double jeopardy. Accordingly, we affirm.

             Affirmed.


SILBERMAN and VILLANTI, JJ., Concur.




                                          -9-
