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.
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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.