NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

JOSE L. GARCIA, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D13-805 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed August 1, 2014. 

Appeal from the Circuit Court for Pinellas 

County; R. Timothy Peters, Judge. 

Howard L. Dimmig, II, Public Defender, and 

Judith Ellis, Assistant Public Defender, 

Bartow, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and John M. Klawikofsky, 

Assistant Attorney General, Tampa, for 

Appellee. 

ALTENBERND, Judge. 

 Jose L. Garcia appeals his judgment and sentence of life in prison for 

capital sexual battery. We reverse the judgment and sentence and remand for a new 

trial because the trial court instructed the jury using the wrong standard instruction. This 
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error resulted in the jury receiving an instruction that contained a wrong element of the 

offense when that element was in dispute and material to the jury's deliberations. 

 The amended information in this case charged a single count of capital 

sexual battery. Specifically, it alleged that on July 31 or August 1 of 2011, Mr. Garcia 

placed his finger into the vagina of the victim, who was less than twelve years of age. 

See § 794.011(2)(a), Fla. Stat. (2011). The information also alleged that the act was 

done in "a lewd, lascivious or indecent manner," which was not necessary to establish 

the elements of capital sexual battery. 

 The trial court prepared the draft jury instructions and verdict form and 

provided them to the attorneys on the morning of the second day of trial. There was a 

serious error in these documents, but the lawyers did not object. The trial court properly 

used Florida Standard Jury Instruction 11.1 as its core instruction for capital sexual 

battery. But it selected element 2(a) from the options available for that element. Thus, 

the instruction read: 

[T]he State must prove the following three elements beyond 

a reasonable doubt: 

 . . . . 

 2. Jose L. Garcia committed an act upon (victim) in 

which the finger of Jose L. Garcia penetrated or had union 

with the vagina of (victim). 

This instruction is not intended for use in cases alleging sexual battery where the 

unlawful contact involves the defendant's finger. 

 Element 2(b) of the standard instruction actually applied in this case. That 

standard instruction reads: "(Defendant) committed an act upon (victim) in which the 

[anus] [vagina] of (victim) was penetrated by an object." Admittedly, "an object" is a 

broad concept. Sometimes this instruction is modified to state that the defendant 
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committed an act upon the victim in which the vagina of the victim was penetrated by 

the defendant's finger. 

 Thus, the offense charged required proof that Mr. Garcia penetrated the 

victim's vagina with his finger. The jury instruction actually given allowed the jury to 

convict him upon evidence that his finger had "union" with the victim's vagina. Evidence 

of such "union" would be sufficient to prove lewd or lascivious molestation under section 

800.04(5), Florida Statutes (2011), but it would not support a conviction for capital 

sexual battery.1 

 Because this error was not preserved in the trial court, the primary 

question is whether the error is fundamental. Recently, in Daniels v. State, 121 So. 3d 

409, 418 (Fla. 2013), the supreme court reconfirmed the test for fundamental error in an 

instruction involving the elements of the charged offense, which it had earlier 

announced in Reed v. State, 837 So. 2d 366, 369-70 (Fla. 2002). It stated: 

Accordingly, where the trial court fails to correctly instruct on 

an element of the crime over which there is dispute, and that 

element is both pertinent and material to what the jury must 

consider in order to decide if the defendant is guilty of the 

crime charged or any of its lesser included offenses, 

fundamental error occurs. 

Daniels, 121 So. 3d at 418; see also Haygood v. State, 109 So. 3d 735, 741 (Fla. 

2013) ("[F]undamental error occurs in a jury instruction where the instruction 

pertains to a disputed element of the offense and the error is pertinent or material 

to what the jury must consider to convict."). 

 1Section 800.04(5)(a) defines lewd or lascivious molestation as 

"intentionally touch[ing] in a lewd or lascivious manner the breasts, genitals, genital 

area, or buttocks, or the clothing covering them, of a person less than 16 years of age, 

or forc[ing] or entic[ing] a person under 16 years of age to so touch the perpetrator." 
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 A review of the record establishes that the issue of penetration was in 

dispute and that the distinction between "union" and "penetration" was very pertinent 

and material to what the jury was required to consider in order to decide if Mr. Garcia 

was guilty of the crime charged. The victim in this case was about eleven when the 

event occurred and twelve when she testified. She testified that she fell asleep while 

sitting next to Mr. Garcia in a recliner. When she woke up, one of his "hands" was in 

her "underwear." The transcript then reflects the following questions and answers: 

 Q. What did you feel? 

 A. His finger. 

 Q. Okay. And where was his finger? 

 A. In my vagina. 

 Q Did you call it a vagina back then or was it 

 something else? 

 A. I called it a killy (phonetic), because that's what 

 my mom called it. 

 Q. And you said you felt his hand in your vagina. 

 Was it on the outside or the inside? 

 A. The inside-ish. 

 Q. And what was—was his hand just sitting there 

 still or what was going on? 

 A. It was kind of, like, tapping. 

 Q. And was that his finger or his whole hand? 

 A. His finger. 

 Q. And was it tapping on the whole part or the 

 outside part? 

 A. I don't understand. 
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 Q. Where on his—where on your vagina was his 

 finger tapping? 

 A. Inside. 

 The difficulty with this testimony, of course, is that it appears very likely 

that the victim's "killy" was actually a description of her genital area and not specifically 

her vagina. Even in the transcript, her use of the word "vagina" seems coached. It is 

possible that this child was describing a "tapping" with a finger on part of her genital 

area but not actually a penetration of her vagina. Certainly, with proper instructions a 

jury could easily have decided that the State had not proven a penetration of the vagina 

beyond a reasonable doubt. 

 The child was not examined by a nurse until seventeen days after the 

event. She told the nurse that Mr. Garcia had put his hands inside her underwear 

"touching me." The nurse found no evidence of trauma or tearing but did not expect to 

find such evidence in the case of a "fondling." 

 During closing argument, the prosecutor explained to the jury:

 Element number two is what I anticipate there will be 

some dispute with from the defense. Jose Garcia committed 

an act upon (victim) in which the finger of Jose Garcia 

penetrated or had union with the vagina of (the victim). 

 And that's the key element that I assume that's going 

to be in dispute today. Where does the evidence come from 

that shows you that that occurred? 

 We agree with the prosecutor's assessment of the "key element." 

Admittedly, in this case the defense attorney never argued to the jury that the case 

might involve a union or touching but not a penetration. The reason for that omission is 

the same reason that the attorney did not object to the instruction; the attorney 
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obviously did not understand the elements of the offense with which her client was 

charged.2 

 However, the attorneys' failure to specifically dispute this element is not 

comparable to cases where the attorney elects not to dispute an element when the 

evidence and theory of defense do not create an arguable dispute. By pleading not 

guilty and arguing that the events did not occur, Mr. Garcia disputed every element of 

the charged offense. Cf. Griffin v. State, 128 So. 3d 88 (Fla. 2d DCA 2013) (holding an 

erroneous instruction on the lesser-included offense of manslaughter by act was not 

fundamental error in a prosecution for second-degree murder because the defendant 

conceded the manner of the crime but presented the defense of mistaken identity), 

review granted, No. SC13-2450 (Fla. Feb. 17, 2014); Ingraham v. State, 32 So. 3d 761, 

767 (Fla. 2d DCA 2010) (holding that failure to instruct on the element of intent to 

commit larceny in a prosecution for vending machine theft under section 877.08(3), 

Florida Statutes (2004), was not fundamental error because the only disputed element 

at trial was the identity of the defendant as the perpetrator).

 In Mr. Garcia's case, with the correct jury instruction, his attorney could 

have disputed this issue in light of the evidence at trial. In this context, we conclude that 

the test for whether the issue was in dispute and whether the element was pertinent and 

material to the jury's deliberations should not be based on the argument of the lawyer 

who did not object to the erroneous instruction. Instead, the test should be whether the 

 2Arguably, our holding in this case could be based on ineffective 

assistance of counsel on the face of the record. There certainly is no conceivable 

tactical reason to allow the trial court to give and the prosecutor to rely upon a "union" 

instruction in this case. 
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evidence presented a genuine dispute that was pertinent to the jury's decision if the 

correct instruction had been given. Such is clearly the case on the face of this record. 

 The State argues that we should conclude this error was not fundamental 

based on the similar holding in Graves v. State, 704 So. 2d 147 (Fla. 1st DCA 1997). 

We note that Graves was decided before Reed, 837 So. 2d 366, and that Judge Benton 

dissented as to this issue. See Graves, 704 So. 2d at 149-50 (Benton, J., concurring 

and dissenting). Moreover, there apparently was evidence in Graves that the defendant 

injured the victim's sexual organs. 704 So. 2d at 148. The court in Graves explained 

that the victim's testimony and her demonstration before the jury were sufficient 

evidence of the charged offense. Id. Finally, the court in Graves noted that the 

prosecutor "focused only on the evidence of penetration" and "did not try this case on a 

union theory." Id. at 149. We are convinced that Mr. Garcia's case is closer to some of 

the cases distinguished in the Graves opinion. See, e.g., Gill v. State, 586 So. 2d 471, 

472 (Fla. 4th DCA 1991) (finding a similar jury instruction fundamentally erroneous 

because even though the victim's testimony indicated that penetration occurred, "a 

portion of that testimony was sufficiently ambiguous to raise a question for the jury as to 

whether in fact there had been penetration"). 

 The instructions and the verdict form prepared by the trial court in this 

case did not include any lesser offense other than misdemeanor battery. Again, there 

was no objection. On remand, however, both the prosecutor and the defense counsel 

may need to give further thought to whether attempted capital sexual battery is a lesser 

offense and, in light of the allegations in the information that the act was committed in a 

lewd or lascivious manner, whether section 800.04(5)(b) may be a permissive lesser 
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offense in this case. Cf. Williams v. State, 957 So. 2d 595 (Fla. 2007).3

 Reversed and remanded. 

NORTHCUTT, J., Concurs. 

CASANUEVA, J., Concurs in result only. 

 

 3We note that section 800.04(5)(b) was added by legislative amendment 

after our decision in Garcia v. State, 976 So. 2d 676 (Fla. 2d DCA 2008) (affirming trial 

court's denial of another defendant's request to instruct jury on lewd or lascivious 

molestation under section 800.04(5)(a), Florida Statutes (2004), as a permissive lesserincluded offense of capital sexual battery where statutory elements of lewd or lascivious 

molestation were not alleged in the information). See ch. 2008-182, § 3, at 2154, Laws 

of Fla.