Joshua Terrel Brown v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSHUA TERREL BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2022-1488

[November 29, 2023]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.

Lucie County; William L. Roby, Judge; L.T. Case No. 562021CF001955A.

Carey Haughwout, Public Defender, and Mara Herbert, Assistant Public

Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, Alexandra A. Folley,

Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

Joshua Terrel Brown appeals his convictions for two counts of lewd or

lascivious exhibition in the presence of a correctional facility employee,

entered after a jury trial. We reject his double jeopardy argument and

affirm the convictions, but we reverse certain costs imposed at sentencing.

We affirm on all other issues. 1

The evidence at trial demonstrated that Brown intentionally

masturbated in his cell within the clear view of two members of the

correctional facility’s mental health staff.

1 As to appellant’s contention that he was entitled to a twelve-person jury, we

affirm. See Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), rev. denied, No.

SC2022-1597, 2023 WL 3830251 (Fla. June 6, 2023), cert. pending, No. 23-5173

(U.S. July 21, 2023). Additionally, without further discussion, we affirm as to

appellant’s argument regarding fundamental error in the sentencing process.

On appeal, Brown argues that his two convictions for lewd or lascivious

exhibition violate the prohibition against double jeopardy. He argues that

the statute does not allow for multiple convictions “for a single act of lewd

behavior when it is done in the presence of multiple employees.”

In pertinent part, section 800.09(2)(a), Florida Statutes (2021), is

directed at a person who “intentionally masturbate[s] . . . in the presence

of a person he or she knows or reasonably should know is an employee.”

Subsection (1) defines “employee” to include “[a]ny person employed at or

performing contractual services for a county detention facility.” §

800.09(1)(a)4., Fla. Stat. (2021).

“The intent of the Legislature is to convict and sentence for each

criminal offense committed in the course of one criminal episode or

transaction . . . .” § 775.021(4)(b), Fla. Stat. (2021). One exception to this

rule of construction is for “offenses which require identical elements of

proof.” § 775.021(4)(b)1., Fla. Stat. (2021). If a defendant is charged with

two counts of the same statutory offense, the “allowable unit of

prosecution” standard applies to the double jeopardy analysis. Mauldin v.

State, 9 So. 3d 25, 27 (Fla. 4th DCA 2009). The “unit of prosecution”

means “the aspect of criminal activity that the Legislature intended to

punish.” McKnight v. State, 906 So. 2d 368, 371 (Fla. 5th DCA 2005).

Determining the unit of prosecution “is a task of statutory construction.”

Id. “Double jeopardy is not violated if the legislature intended separate

punishments.” Mauldin, 9 So. 3d at 28.

To determine the unit of prosecution, courts look first to the statute’s

actual language. State v. Losada, 175 So. 3d 911, 913 (Fla. 4th DCA

2015). “If the statutory language is unclear, we apply rules of statutory

construction and explore legislative history to determine legislative intent.”

Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003). “In performing this

analysis, a court must consider the statute as a whole, including the evil

to be corrected and the language, title, and history of its enactment to

decipher the statute’s intent.” Losada, 175 So. 3d at 913 (internal

quotation marks and citation omitted). Finally, if the statute is still

ambiguous, a court will apply the rule of lenity and construe the statute

in favor of the accused. Id.

“[A]bsent clear legislative intent to the contrary, the a/any test serves

as a valuable but nonexclusive means to assist courts in determining the

intended unit of prosecution.” Bautista, 863 So. 2d at 1188. Under this

test, “when the article ‘a’ precedes the item described in a statute, it is the

intent of the Legislature to make each separate item subject to a separate

prosecution.” Allen v. State, 82 So. 3d 118, 121 (Fla. 4th DCA 2012). By

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contrast, “when the word ‘any’ precedes the item, an ambiguity may arise

as to the intended unit of prosecution.” Losada, 175 So. 3d at 914. Still,

the unit of prosecution is not “automatically rendered ambiguous

whenever a statute uses the word ‘any.’” Bautista, 863 So. 2d at 1188.

Here, appellant’s two convictions under section 800.09 for a single lewd

act in the presence of two correctional facility employees did not violate

double jeopardy. Section 800.09 is unambiguous and allows for separate

convictions for each employee present during the lewd act.

Section 800.09(2)’s use of the word “a” in the phrase “presence of a

person” indicates that each victim present at an exposure will support a

separate charge. Applying the “a/any test,” we conclude that the allowable

unit of prosecution is the number of employees, not the number of lewd

acts.

This interpretation is consistent with cases allowing multiple

convictions for a single act where the statutory language reflected an intent

to punish on a per-victim basis. See Suggs v. State, 72 So. 3d 145, 149

(Fla. 4th DCA 2011) (“[T]he statute’s plain focus is on ‘the person’ to whom

such letter or communication is sent. Thus, we hold that, under section

836.10, the unit of allowable prosecution is determined by the number of

persons to whom a letter or communication is sent, and not the number

of letters or communications sent.”) (internal citation omitted); Mauldin, 9

So. 3d at 28 (“It is clear from the assault statute that the legislature

intended to punish the criminal defendant separately for each victim the

defendant placed in fear by his or her threat.”).

We reject Brown’s focuses on the word “any” in the section

800.09(1)(a)4. definition of “employee.” To determine the unit of

prosecution, the crucial provision of section 800.09(2)(a) is the subsection

prohibiting the behavior, not the statute’s definition of an “employee.”

Brown’s reliance upon section 775.021(4)(b)1., Florida Statutes (2021),

is similarly misplaced. Under section 775.021(4)(b)1., an exception to the

legislature’s intent to convict for “each criminal offense committed in the

course of one criminal episode” applies where the “offenses require

identical elements of proof.” Id. Here, Count I required proof that the lewd

act was committed in the presence of victim A.D., while Count II required

proof that the lewd act was committed in the presence of victim K.J. Each

count involved a different victim, so the counts did not require identical

elements of proof. See Simon v. State, 615 So. 2d 236, 238 (Fla. 3d DCA

1993) (holding that “[w]ithout dispute, each of the six false imprisonment

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offense involved a different victim and therefore did not require identical

elements of proof”).

We distinguish the Florida Supreme Court’s decision in State v.

Hernandez, 596 So. 2d 671 (Fla. 1992). There, the supreme court held

that a single lewd act, though seen by more than one child, was subject to

only one conviction under section 800.04(3), Florida Statutes (1987). Id.

at 672. However, the statute at issue in Hernandez proscribed the

knowing commission of lewd act in the presence of “any child.” The court

reasoned that the statute’s focus was not on the number of victims, but

rather was “on the commission of the lewd act whether in the presence of

one or more children[.]” Id. (quoting Lifka v. State, 530 So. 2d 371, 373

n.1 (Fla. 1st DCA 1988)). The court explained: “The size of the audience

or the number of witnesses should not determine the number of allowable

convictions under subsection 800.04(3); rather, the number of distinct

lewd acts should be determinative.” Id. By contrast, because of the use

of the article “a” instead of “any,” section 800.09(2)’s focus is on the

number of employees present during the commission of a lewd act, not the

number of distinct lewd acts committed.

As the State concedes, certain costs were imposed in error. We reverse

and remand with instructions to impose a $100 cost of prosecution instead

of $200 and to strike the $50 cost of investigation, the $151 cost for the

Rape Crisis Trust Fund on each count, and the $201 for the Domestic

Violence Surcharge on each count. Brown preserved these issues for

appeal by filing a post-trial motion.

Affirmed in part, reversed in part and remanded.

GERBER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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