Russell Owen Insko v. State of Florida

SC06-1619

>>> THE NEXT CASE ON THE CALL

WILLING LENDER IS -- CALENDAR

IS INSKO VERSUS THE STATE OF

FLORIDA.

>>> THEY WILL HAVE TO BE GIVEN

TO THE JURY, PROVEN BY A

REASONABLE DOUBT.

>> I AGREE, THAT IS CORRECT.

>> THERE ARE ALSO THE

IMPLICATIONS ARE ONE IS

ELEMENT VERSUS A SENTENCING

FACTOR, YOU GOT TO BE CHARGED

ON THE DIME.

>> CORRECT.

>> AND THEN YOUR ARGUMENT,

WELL I GUESS IS SIGNIFICANT IN

THIS CASE, IT COULD HAVE

DOUBLE JEOPARDY IMPLICATION

WHICH IT WOULDN'T HAVE.

>> RIGHT.

>> DO YOU SEE -- IS THERE A

DIFFERENCE -- WE GOT ELEMENTS

OF THE CRIME AND SENTENCING

FACTORS, BUT WHAT ARE

RECLASSIFICATION CRIMES WE

HAVE BEEN SOMETHING

TRADITIONAL EVEN BEFORE HAVING

A GUN, YOU KNOW, THERE ARE

MANY OF THESE CRIMES THAT DO

INCREASE THE PENALTY BUT THEY

ARE, YOU KNOW, IS WHERE THE

LINE BETWEEN ON THOSE

SENTENCING FACTORS VERSUS

ELEMENTS?

A RECLASSIFICATION AND WHERE

DOES THAT FIT IN?

>> WELL, MR. INSKO IS IN A

STRANGE POSITION BECAUSE -- IF

YOU WERE TO BE CONVICTED UNDER

A BLANKET, A BLANKET CHARGE,

WHICH COULD VERY WELL HAPPEN

BECAUSE LOOKING AT HIM, HE

LOOKS OLDER.

IT IS NOT PUTTING THE AGE OUT,

IT IS BEHIND THE BALL FOR ONE

THING FROM THE JURY, BUT AS

FAR AS RECLASSIFYING, I THINK

HE -- EVEN IF HE IS CONVICTED,

THEY WERE NOT GOING TO

SENTENCE HIM TO 15 YEARS

SECOND-DEGREE FELONY.

THEY WOOK ACKNOWLEDGE HE

COULDN'T GO ANY HIGHER THAN

WHAT HE RECEIVED WHICH WAS

THIRD-DEGREE FELONY BY A

PERSON UNDER 18.

>> WELL, FIRST OF ALL, BY

SAYING WHO WAS HIGHER YOU?

ACTUALLY GO TO THE SECOND

ASPECT OF THIS CASE THAT, TO

ME, I DON'T, I AM CONCERNED

THAT THERE WAS APPARENTLY A

LESSER INCLUDED ERRONEOUS

CHARGE BECAUSE IT IS

IMPOSSIBILITY IF HE IS IN FACT

33 FOR HIM TO BE UNDERAGE 18.

>> RIGHT.

>> NOT ONLY THE DEFENDANT

AGREED TO IT.

>> HE DIDN'T OBJECT.

>> WELL, HE DIDN'T OBJECT TO

IT.

THE JURY FOUND IT.

THERE WAS NEVER ANYTHING

RAISED BY IT.

I JUST -- WHY ISN'T THE

POSITION OF THE CONCURRENCE IN

THIS CASE ON THAT ISSUE -- I

DON'T KNOW WHAT YOU CALLED IT.

THERE WAS SOME OTHER THEORY

THEY HAD.

WAIVER.

>> WELL, WITH RESPECT TO

ESTOPPLE, INCONSISTENT

POSITIONS DURING THE COURSE OF

LITIGATION, I SUBMIT THIS

LITIGATION HAD ENDED AT THE

END OF APPEAL.

WHEN WENT BACK, HE STARTED OUT

FRESH WITH A NEW TRIAL, SO

EVERYTHING IS NEW WITH A NEW

TRIAL, BUT THE NEGOTIATIONS

ARE OPEN, I MEAN, ALSO, IF HE

HAD WAIVED IT EARLIER, IT IS A

CATCH-22 BECAUSE THAT WOULD

HAVE NEVER WOULD HAVE

SUCCEEDED ON DIRECT APPEAL

BECAUSE THEY CAN GET THE

LESSER INCLUDE.

AND TO BE FAIR, I DON'T THINK

THE STATE ACTUALLY PROVED THE

UNREASONABLE DOUBT THAT HE WAS

18, OVER 18, ALT THE ORIGINAL

TRIAL.

> LET ME GO BACK TO THE FIRST

ISSUE.

WITHOUT LOOK AT GLOVER FOR A

SECOND, IF YOU LOOK AT THE

STATUTE ITSELF, IT SEEMS TO

DEFINE LEWD LASCIVIOUS

CONDUCT, A PERSON WHO

INTENTIONALLY TOUCH AS PERSON

UNDER 16 YEARS OF AGE IN LEWD

OR LASCIVIOUS MANNER OR

SOLICITED A PERSON COMMITS

LEWD OR LASCIVIOUS CONDUCT

THAT SEEMS TO ME TO PREISN'T

THE ELEMENTS OF THE OFFENSE.

IF YOU LOOK AT THE INDICTMENT,

THE INDICTMENT SAYS RUSSELL

OWEN INSKO DID SOLICIT J. S.

TO COMMIT A LEWD OR LA SIVEEAS

ACT IF YOU LOOK AT THE JURY

INSTRUCTION, THE JURY

INSTRUCTIONS SAY TO PROVE THE

CRIME OF LEWD OR LASCIVIOUS

CONDUCT THE STATE MUST PROVE

THE FOLLOWING ELEMENTS BEYOND

A REASONABLE DOUBT, J. S. WAS

UNDER 16 YEARS AN RUSSELL

OWEN INSKO SOLICITED TO

COMMIT A LEWD OR LA SIVE

LASCIVIOUS ACT.

WHY ARE THOSE THE TWO ELEMENTS

OF THE CRIME OR LEWD AND

LASCIVIOUS CONDUCT AND THEN

THE AGE OF THE DEFENDANT NOT

SIMPLY A SENTENCING FACTOR TO

DETERMINE WHETHER IT IS

SECOND-DEGREE OR A

THIRD-DEGREE FELONY?

>> WELL, THE FIRST REASON I

THINK IS IT COULD HAVE BEEN

LIKE THAT AT THE RAILROAD

ORIGINAL TRIAL THEY WOULD HAVE

LEFT THE AGE OUT ALL TOGETHER

THE STATE WANTED THE BENEFIT

OF TRYING TO PROVE HE WAS

GUILTY OF A GREATER OFFENSE.

IT WAS IN THE VERDICT FORM.

>> THE VERDICT FORM PROVIDED

ALSO THE PUNISHMENT PROVIDED

BY LAW FOR THE CRIME OF LEWD

AND LASCIVIOUS MISCONDUCT IS

GREATER DEPENDING IN THE EDGE

OF THE DEFENDANT.

THE JURY WAS INSTRUCTED THAT

WAY.

>> YES.

>> IT SEEMS LIKE THEY WERE

CONSISTENT THAT THESE ARE THE

TWO ELEMENTS OF THE CRIME,

THEN, THE PUNISHMENT IS GOING

TO DEPEND ON THE AGE OF THE

DEFENDANT.

>> RIGHT.

THE OTHER REASON IS VIRTUALLY

SOMEWHERE, VIRTUALLY IDENTICAL

TO THE SEXUAL BATTERY STATUTE

AND THAT IS --

>> RIGHT.

>> THAT IS WHAT I AM SAYING.

PUTTING ASIDE GLOVER, WITHOUT

LOOKING AT THE CASE FOR THE

MOMENT, JUST LOOKING AT THE

STATUTE, THE INDICTMENT, AND

THE JURY INSTRUCTIONS, THEY

SEEM TO PROVIDE THE ELEMENTS

OF THE OFFENSE DO NOT INCLUDE

THE AGE OF THE DEFENDANT.

>> IT ALSO GOES BACK TO THE

JURY KIND OF BEING HELD INTO

THE DARK.

DIFFERENCE BETWEEN JUROR

COMING INTO A JURY TRIAL AND

HEARING WHAT THE PERSON IS

CHARGED WITH LEWD AND

LASCIVIOUS ACTS UNDER 18,

EITHER A CHILD SOLICITING A

CHILD VERSUS A AN ADULT

SOLICITING A CHILD.

ANY JUROR SITTING ON THE

TRIAL, I THINK, AUTOMATICALLY

MAKES THAT DISTINCTION WHEN

THEY SIT DOWN, IF YOU HEAR

THAT, IF JUST THROW IT OUT

THERE --

>> ISN'T THERE A QUESTION AS

JUSTICE CANTERO, THAT IS, IS

IT YOUR POSITION THAT IF THERE

IS A QUOTE RECLASSIFICATION TO

A DIFFERENT LEF LEVEL OF

FELONY, FOR INSTANCE, THAT

THEN, THAT CONSTITUTES A

SEPARATE OFFENSE?

>> YES.

>> SO IT IS YOUR POSITION THAT

IN EFFECT RECLASSIFICATION

ENDS UP BEING SEPARATE CRIME?

>> RIGHT.

>> AND THAT THIS IS WHERE --

RIGHT.

>> WITH REFERENCE TO UNDERAGE

18 OR OVER 18.

>> WELL I AM ASSUMING THAT WE

MUST HAVE GOTTEN THERE IN THE

BACK DOOR FOR YEARS BECAUSE IF

YOU LOOK AT, IN A THINK WHAT

JUSTICE CANTERO IS SAYING, I

SORT OF MAKING SENSE, THAT IS

WHY I WAS ASKING WHETHER THERE

WAS ELEMENT SENTENCING FACTOR,

WHERE DOES RECLASSIFICATION

CRIMES COME IN, A SEXUAL

BATTERY JUSTIFYING THE CRIME

AS ANAL, OR VAGINAL

PENETRATION BY SEXUAL ORGAN OF

ANOTHER DOESN'T EVEN, AND THAT

ONLY GETS TO THE AGE OF THE

DEFENDANT AND THE AGE OF THE

VICTIM IN SUBSECTION 2 AND I

GUESS IN GLOVER, WITH HEING AT

IT, SINCE THEY ARE BOTH IN THE

SAME SECTION AND THE AGE OF

THE VICTIM HAS ALWAYS BEEN AN

ELEMENT OF THE CRIME OF SEXUAL

BATTERY, IT HAD TO FOLLOW IN

THAT CASE.

>> RIGHT.

>> SO NOW WE GO BACK TO THIS

ONE, THE DIFFERENCE IN THIS

STATUTE THAT IS THE AGE OF THE

PERSON IS PART OF THE FIRST

SUBSECTION A IS PART OF THE

ELEMENT.

>> RIGHT.

>> WHETHER THAT MAKES IT -- I

DON'T KNOW WHERE THAT GETS IT

TO, AS FAR AS, I THOUGHT WHAT

JUSTICE CANTERO DID, SINCE

THEY GOT TO BE PROVEN BEYOND A

REASONABLE DOUBT FOR MOST

INTENTIVE PURPOSE, IT IS NOT

GOING MATTER.

IT IS MATTERING IN THIS VERY

LIMITED ISSUE FOR YOU AND YOUR

CLIENT AS FAR AS WHETHER IT IS

DOUBLE JEOPARDY OR ISSUES AND

THAT MAY BE AN ISSUE ABOUT

WHAT NEEDS TO BE SET FORTH IN

THE INDICTMENT, BUT I AM NOT

SURE, YOU KNOW, AND SO YOU

HAVE LOOKED AT THAT TO ANALYZE

IF BECAUSE THE SEXUAL BATTERY

STATUTE HAS EACH BOTH THE AGE

OF THE DEFENDANT AND THE AGE

OF THE VICTIM IN ONE SECTION

THAT THAT IS AND WE RECOGNIZE

ONE IS THE ELEMENT.

WE HAD TO RECOGNIZE THE OTHER

WHEREAS HERE THERE IS

ABSOLUTELY A SEPARATION

BETWEEN AGE OF THE DEFENDANT

AND AGE OF THE VICTIM.

DO YOU SEE THAT AS BEING A

MEANINGFUL DISTINCTION?

>> NO.

I ACTUALLY THINK THEY ARE

SIMILAR.

THE LEWD LASCIVIOUS CONDUCT,

IT STATES THE CRIME AND

SPECIFIES THE AGES.

I THINK IN THE SEXUAL BATTERY

STATUTE, IT -- IT MENTIONS THE

CRIME, BUT WITHIN THE AGE OF

THE DEFENDANT AS WELL AS THE

AGE OF THE VICTIM.

I THINK IT IS ALL -- THEN THEY

SEPARATE THE TWO, BETWEEN THE

TWO OVER 18 AND UNDER 18 ALSO.

SO I WOULD LIKE TO POINT OUT,

I THINK THE CAPITAL SEXUAL

BATTERY STATUTE AND THE LEWD

AND LASCIVIOUS ARE VIRTUALLY

SIMILAR.

THIS COURT IS RULING THAT THE

AGE OF THE DEFENDANT IS IN THE

SEXUAL BATTERY CASES LOGICALLY

WOULD STATE THAT THE AGE OF

THE DEFENDANT AND THE LEWD

LASCIVIOUS CONDUCT CASES IS AN

ELEMENT ALSO.

>> I AM NOT CERTAIN I

UNDERSTAND TO YOUR RESPONSE TO

JUSTICE PARIENTE'S QUESTION

ABOUT WHY THE CONCURRING

OPINIONS ON THE DISTRICT COURT

ARE NOT CORRECT.

WELL, I THINK, ONE OF THE

REASONS, THE ESTOPPLE, I THINK

THAT THIS IS A SEPARATE

LITIGATION, IT DOESN'T HAVE

INCONSIST TINT -- INCONSIST

EBT POSITION DURING THE SAME

LITIGATION, HE HAD THIS TRIAL,

HE WAS CONVICTED, HE DID A

DIRECT APPEAL.

HE ACTUALLY WON.

SO IT COMES CAN BACK DOWN FOR

A NEW TRIAL, FOR A NEW SET OF

OPTIONS, PLEASE, WHAT NOT,

WHICH GETS ME TO THE SECOND

POINT THAT JUSTICE WELLS SAID

AN DCA CONKURG OPINION THAT

THEY HAD NOT FOLLOWED, THEY

HAD NOT FOLLOWED THROUGH WITH

A RILE.

>> THE DEFENDANT TAKING

INCONSISTENT POSITIONS AT THE

OUTSET BY FIRST GETTING THE

INSTRUCTION ON "LETTERS

INCLUDED OFFENSE."

ALL RIGHT.

AS A RESULT OF THAT ACTUALLY

HAVING THE JURY THEN CONVICT

HIM ON THAT LESSER INCLUDED

OFFENSE, BUT THEN INCONSISTENT

ILY ARGUING THAT ALTHOUGH I

ASKED FOR THAT LETTERS INCLUDE

AND THAT THE EVIDENCE WOULD

SUPPORT A JURY, YOU KNOW,

FINDING IN THESE RANGE OF

THINGS HERE, NOW, I AM

ASSERTING THAT THE JURY

COOPERATE CONVICT ME OF THAT

LESSER INCLUDE OFFENSE WHICH

AT THE TIME I WANTED SO WE END

UP WITH THE DEFENDANT SORT OF

HAVING IT BOTH WAYS.

FIRST, I WANT TO SEE IF I CAN

GET THE JURY TO GO FO THAT,

THEN, IF I GET HIM TO GO FOR

THAT.

THEN, I AM GOING TO COME

FORWARD AND SAY, WELL, WAIT A

MINUTE.

I AM REALLY OVER THAT AGE, BUT

THE DEFENDANT DIDN'T TRY TO

VACATE THAT CONVICTION.

>> NO.

>> I THINK IF HE HAD TRIED TO

AT THAT POINT, THE POINT WOULD

BE WELL-TAKEN.

IT WOULD BE SIMILAR TO CASES

WHERE, YOU KNOW, PEOPLE MAKE A

GREAT PLEA DEAL, THEN, THEY

VIOLATE, AND THEN THEY ATTACK

THE ORIGINAL PLEA, THAT IS ALL

ONE CONTINUOUS LITIGATION, YOU

KNOW, ASKING FOR A JURY

INSTRUCTION, THEN, RECEIVING

IT AND GETTING CONVICTED ON

THE LESSER, AUN THEN ARGUING

THAT IT IS FUNDAMENTAL ERROR

ON THE DIRECT APPEAL.

>> BUT THIS CASE IS ALL ONE

CONTINUOUS LITIGATION.

THAT IS, THIS IS STILL THE

SAME CASE THAT WAS BROUGHT BY

THE STATE AND TRIED BEFORE

EVEN THOUGH IT IS HERE IN THIS

FORUM AND YOU HAVE BEEN UP AND

DOWN A COUPLE OF TIMES, SO WE

ARE REALLY TALKING ABOUT THE

SAME PROSECUTION.

I AM HAVING DIFFICULTY WITH

YOUR EXPLANATION.

>> WELL, I THINK THE STATE,

THIS IS ONE CONTINUOUS

LITIGATION, AND I THINK THE

STATE IS ALSO RECEIVING THE

BENEFIT OF HAVING THE CHARGE

OVER 18 SPECIFICALLY OVER 18

AND ESPECIALLY IN THE CASE

ALONG THIS WAY, NOW COMING

BACK, OH, NO, WE DON'T WANT

THE AGE IN THERE.

>> I MEAN, THEY LOST ON

BECAUSE IT IS SOMETHING THAT

OCCURRED TO YOUR BENEFIT, YOUR

CLI UNT'S BENEFIT WHICH IS,

EVEN THOUGH IT IS CLEARLY OVER

18 THEY FIND THEM UNDER 18 TO

THE STATE UNDERSTANDS BASED ON

WHAT I ALWAYS CONSIDER DOUBLE

JEOPARDY PRINCIPALS, BECAUSE

IT IS SENTENCING FACTOR, THEY

CAN GO BACK, YOU KNOW, I THINK

THEY COULD TRY THEM ON THE

GREATER OFFENSE, SO IT IS NOT

LIKE IT IS TO THEIR ADVANTAGE

THEY GOT, I GUESS, OR THE

PEOPLE, IF WE LOOKED AT THE

PEOPLE OF THE STATE THAT THE

PERSON IS CLEARLY 33 IS

GETTING POTENTIAL ADVANTAGE OF

MUCH LIGHTER SENTENCE.

RIGHT.

>> THAT IS WRITTEN IN STONE.

YOU CAN'T GO ANY HIGHER THAN

THE 5-YEAR SENTENCE.

>> THEN THAT GOES TO THE FACT

IT IS NOT A DIFFERENT CASE,

THIS IS THE SAME CASE BECAUSE

OTHERWISE THE STATE WOULD BE

ABLE TO PUT ON THE VERDICT

FORM THE DEFENDANT WAS OVER

THE AGE OF 18.

>> WELL, DOUBLE JEOPARDY.

>> EXACTLY.

>> THAT IS WHY THE SAME CASE.

THAT IS WHY YOU ARE TAKING

INCONSISTENT POSITIONS.

NOT A DIFFERENT CASE.

THERE IS VERY MUCH A

RAMIFICATION FROM THE FIRST

TRIAL.

>> RIGHT.

>> I MEAN, WHEN IT COMES BACK

DOWN FOR A NEW TRIAL.

OPEN UP POTENTIALLY IN OTHER

CASE SOMETHING IS BEING

DROPPED DIFFERENT TYPES OF

MOTIONS ARE BEING FILED.

DIFFERENT TYPES OF PLEA DEALS.

>> BUT YOU ARE STILL BOUND BY

THE JURY'S DETERMINATION.

>> THAT IS CORRECT.

>> YOU ARE INTO YOUR REBUTTAL.

>> THIS IS JUST FALLBACK

POSITION OF THE STATE, IS IT

NOT?

THE STATE IS URGING US TO

UPHOLD?

>> WELL, YES.

>> IT IS JUST A FALLBACK?

YES.

>> ALL RIGHT.

THANK YOU.

>> THANK YOU.

>>> MAY IT PLEASE THE COURT I

AM SUSAN DUNLEVY WITH THE

ATTORNEY GENERAL'S OFFICE IN

TAMPA.

I REPRESENT THE STATE IN THE

CASE.

>> WHAT DOES THE INFORMATION

ACTUALLY CHARGE?

DOES THE INFORMATION TRACK THE

LANGUAGE OF THE STATUTE THAT

SAYS THAT THE DEFENDANT, THE

VICTIM HAS TO BE UNDER 16, AND

THAT LEWD AND LASCIVIOUS ACTS,

IT DID GO ON AND I INCLUDE THE

AGE OF --

>> YES, JUSTICE.

I INCLUDED ALL OF THOSE

THINGS.

>> SO IF IT -- SO IF THE

INDICTMENT OR INFORMATION

ACTUALLY INCLUDE THE AGE OF

THE PERPETRATOR, IS THAT AN

INDICATION OF THAT THE STATE

THE ONE WHO SAW THIS WAS AN

ELEMENT OF LEWD AND

LASCIVIOUS.

I DON'T THINK SO, YOUR HONOR.

THE INCLUSION MUCH THE AGE

OVER 18 WAS NECESSARY BECAUSE

--

>> THAT IS NOT TRUE.

>> WE HAVE SAID THAT THERE

DOESN'T HAVE TO BE NOTICE IN

THE INDICTMENT OF SENTENCING

FACTORS UNDER A TREND.

>> WELL, IT WOULDN'T

NECESSARILY BE.

>> NO.

>> BUT LET ME GET TO THAT I

WANT TO MAKE SURE I UNDERSTAND

BASE THINK READING SOME OF THE

DECISIONS OF THE APPELLATE

COURTS OUT THERE, I THINK

THERE IS CONFUSION.

I DON'T THINK THE STATE EVER

THOUGHT THAT AGE OF THE

DEFENDANT, AGE OF THE VICTIMS,

WHETHER SOMEBODY HAD A GUN,

SO-CALLED RECLASSIFICATION

OFFENSES EVER THOUGHT THAT

THIS DIDN'T HAVE TO BE

PRESENTED TO THE JURY AND

FOUND BEYOND A REASONABLE

DOUBT.

>> RIGHT.

>> AND SO WHAT I AM CONCERNED

ABOUT BECAUSE AGAIN, THESE ARE

ALL, I WILL CALL THEM

RECLASSIFICATION OFFENSES,

WHETHER YOU CALL THEM ELEMENTS

OR SOMETHING THAT THE STATE

HAS ALWAYS PROVEN BEYOND A

REASONABLE DOUBT.

AREN'T THOSE DIFFERENT THAN

THE SENTENCING FACTORS THAT

APREN DY AND RING HAVE TALKED

ABOUT AND I WOULD THINK THINKS

LIKE THE VULNERABILITY OF THE

VICTIM AS OPPOSED TO AGE, SOME

OF THE OTHER, WHETHER SOMEONE

IS A CONVICTED FELON, THAT

TAKES A CRIME, THE SAME CRIME

AND NOW INSTEAD OF IT BEING,

YOU KNOW, A THIRD-DEGREE

FELONY, IT IS SECOND DEGREE OR

A FIRST DEGREE, DO YOU SEE

THAT APPRENDI, THOSE THINGS WE

HAVE BEEN PART OF A LAW, OR

THESE OTHER ISSUES THAT COULD

TAKE SOMETHING -- ISSUES AND

COULD TAKE SOMETHING AND

INCREASE THE SENTENCE BEYOND

THE STATUTORY MAXIMUM OR

BEYOND WHATEVER THEY SAID?

DO YOU UNDERSTAND WHAT I AM

GETTING AT?

IN OTHER WORDS, WHETHER AS AN

ELEMENT OR A SENTENCING

FACTOR, DOESN'T IT REALLY GO

BACK TO RECLASSIFICATION

CRIMES WHATEVER YOU CALL THEM,

HAVE ALWAYS, HAVE ALWAYS BEEN,

YOU KNOW, SUBJECT TO DOUBLE

JEOPARDY, PROOF BEYOND A

REASONABLE DOUBT, FINDINGS BY

THE JURY?

>> ALL RIGHT.

I WOULD CALL IT A DEGREE

CRIME, BECAUSE WE HAVE, IF THE

DEFENDANT IS OVER 18, THE

OFFENSE IS SECOND-DEGREE

FELONY.

IF HE IS UNDER 18, IT IS

THIRD-DEGREE FELONY.

THOSE ARE THE TWO CHOICES YOU

HAVE WITH LEWD AN LASCIVIOUS

CONDUCT.

>> AS YOU SAID, FOR APPRENII,

THE STATE WOULD NEVER ARGUE

THAT IS SOMETHING THE JUDGE

COULD FIND BY PREPONDERANCE OF

THE EVIDENCE.

THAT IS WHY?

LET'S MAKE IT MORE COMPLICATED

BY THIRD CATEGORY.

AND SAY THAT IS GOING TO BE

SUBJECT TO A DIFFERENT SET OF

RULES, AREN'T WEER OFF JUST

KEEPING THESE AS ELEMENTS OF

THE CRIME HAVING BEEN PROVED,

YOU KNOW, AND ESTABLISHED BY

THE JURY BEYOND A REASONABLE

DOUBT AND CHARGED WHATEVER

ELSE GOES ALONG WITH ELEMENTS.

>> I WOULD DISAGREE IN THE

SENSE THAT IF IT IS AN AMOUNT

OF THE CRIME, AND YOU DON'T

HAVE THAT ELEMENT, THEN IT IS

EITHER SOME OTHER CRIME, OR IT

IS NO CRIME AT ALL.

>> SO INFORMATION ONLY CHARGED

THOSE PORTIONS OF THE STATUTE

THAT SAYS THAT THIS VICTIM WAS

16, UNDER 16, AND THAT A LEWD

AND LASCIVIOUS ACT WAS

COMMITTED.

THAT IS WHAT THE INFORMATION

SAYS.

WHAT THEN IS THE DEFENDANT, IF

THE DEFENDANT IS FOUND GUILTY

OF THAT.

>> RIGHT.

>> WHAT CAN YOU THEN DO?

>> IN THAT SITUATION, BECAUSE

THE STATE DID NOT ALLEGE OR

PROVE THAT THE DEFENDANT'S AGE

WAS GREATER THAN 18, IT COULD,

HE WOULD BE GUILTY OF THE

THIRD-DEGREE FELONY, WHICH HAS

LOWER SENTENCE.

>> EVEN THOUGH HE MAY BE A

40-YEAR-OLD PERSON?

>> RIGHT.

>> THAT SOUNDS LIKE AN

ELEMENT.

YOU KNOW, THAT IS THE PROBLEM

I CAN THINK OF AS THE LAW HAS,

YOU KNOW ALLEGE VATED ASSAULT

-- AGGRAVATED ASSAULT ON A

POLICE OFFICER, THERE ARE ALL

THESE THINGS THAT CHANGE

WHETHER IT IS GOING TO BE ONE

CRIME OR, YOU KNOW, AGAIN, A

DIFFERENT DEGREE CRIME, AND

ALL OF THOSE CRIMES ARE

SUBJECT TO THE STATE'S BURDEN

OF PROOF BEYOND A REASONABLE

DOUBT.

>> RIGHT.

IT IS LIKE IF YOU LOOK AT THE

CRIME OF THEFT, THE ONLY

ELEMENT OF THEFT ARE THAT YOU

KNOWINGLY TAKE PROPERTY THAT

YOU KNOW BELONGS TO SOMEBODY

ELSE, NUMBER ONE, AND NUMBER

TWO, DO YOU SO WITH THE

INTENT TO DEPRIVE THE OWNER OF

THE USE OF THE PROPERTY OR TO

GIVE THE PROPERTY TO SOMEONE

ELSE.

>> GOOD EXAMPLE.

SO THE AMOUNT IS GOING

DETERMINE THE DEGREE?

>> CORRECT.

>> AND SO IS THAT -- ARE YOU

GOING TO SAY NOW THOSE ARE

SENTENCING FACTORS?

>> I THINK SO.

WHEN YOU ARE TALKING ABOUT THE

VALUE.

>> HOW CAN THAT BE?

IF SOMEBODY HAS BEEN CONVICTED

OF A FIRST-DEGREE FELONY, FOR

INSTANCE, THAT IS A CONVICTION

FOR FIRST-DEGREE FELONY.

>> RIGHT.

>> THAT IS HOW THAT -- THAT IS

A DIFFERENT CRIME THAN IF THEY

HAD BEEN CONVICTED OF A

THIRD-DEGREE FELONY.

AND SO, WHAT YOU END UP WITH

WITH THESE RECLASSIFICATIONS

IS DIFFERENT CRIMES.

DO YOU NOT?

THEY HAVE DIFFERENT ELEMENTS.

THEY ARE UNDERAGE OR OVER 18,

AND THEY HAVE BEEN

RECLASSIFIED, IF YOU WANT TO

CONTINUE TO THUSE WORD, TO A

DIFFERENT CRIME.

PEOPLE DON'T TALK ABOUT, WELL

I WAS SENTENCED FOR A

THIRD-DEGREE CRIME.

THEY WERE CONVICTED A

THIRD-DEGREE FELONY.

OR THEY WERE CONVICTED.

AND OF COURSE, THOSE

CONVICTIONS HAVE IMPORTANT

CONSEQUENCE DOWN THE ROAD,

TOO.

YOU KNOW?

SO I DON'T -- HOW CAN THE

STATE SAY YOU, NO, THEY WERE

JUST SENTENCED AS FIRST-DEGREE

FELONY OR SENTENCED AS

THIRD-DEGREE FELON.

THESE ARE CONVICTIONS ARE THEY

NOT?

ONCE YOU CHANGE IT FROM A

THIRD DEGREE TO A FIRST SEE

DEGREE THAT IS A DIFFERENT

CRIME, IS IT NOT?

OBVIOUSLY THE SERIOUSNESS OF

THAT CRIME IS REPRESENTED BY

THAT.

I AM HAVING TROUBLE WITH THE

STATE SAYING, NO, THE

CONVICTION FOR A FIRST-DEGREE

FELONY IS THE SAME AS A

CONVICTION FOR A THIRD-DEGREE

FELONY BUT WE HAVE BROADER

SENTENCING AUTHORITY.

>> WITH WE, WE LABEL THINGS

FIRST-DEGREE FELONY,

SECOND-DEGREE FELONY,

THIRD-DEGREE FELONY, SO WE

KNOW WHAT SENTENCE IS

PERMISSIBLE.

NOT ONLY WE KNOW WHAT

SENTENCE, IF SOMEBODY HAS GOT

A RECORD THEN AND LATER ON

SOMETHING ELSE HAPPENS AND A

PRIOR CONVICTION FOR A

FIRST-DEGREE FELONY CAN ALLOW

THAT LATER TO BE PUN PISHED BY

MORE SEVERE PENALTY, THAT

CONVICTION FOR A FIRST-DEGREE

FELONY IS CRITICALLY

IMPORTANT, IS IT NOT?

NOT JUST WHAT THE SENTENCE WAS

FOR IT.

IT IS THE FACT THAT THERE IS A

CONVICTION FOR THAT LEVEL, SO

I THINK WE CARRIED ALL OF THE

SYMANTEC STUFF ABOUT AS FAR AS

WE CAN TAKE IT ABOUT

RECLASSIFICATIONS AN

SENTENCING AND ELEMENTS,

APPRENDHI AND THESE OTHER

THINGS HAVE DEALT WITH THESE

ASPECTS BUT I AM HAVING

DIFFICULTY WITH THE STATE'S

POSITION THAT A CONVICTION FOR

A FIRST-DEGREE FELONY IS IN

THE SAME AS A CONVICTION FOR A

THIRD-DEGREE FELONY.

>> I AM NOT SAYING THAT, YOUR

HONOR.

FIRST OF ALL, I HAVE NEVER

ARGUED THAT THIS IS A

RECLASSIFICATION.

1:00

>> WELL HOW ABOUT OUR CASE ON

SEXUAL BATTERY AND WHY THAT

DOESN'T CONTROL?

YOU GOT THE VERY EXACT SAME

STRUCTURE OF THESE STATUTES,

DO YOU NOT, IN THAT CASE?

>> NO, I DON'T THINK SO, YOUR

HONOR.

>> WELL TELL ME THE DIFFERENCE

BETWEEN THE STRUCTURE OF THOSE

STATUTES.

>> THE DIFFERENCE OF THE

STRUCTURE OF THOSE TWO

STATUTES IS THAT IN THE

SEXUAL, SEXUAL BATTERY ON A

CHILD UNDER 12, THERE ARE TWO,

YOU HAVE TO HAVE SEXUAL

BATTERY YOU, WHICH AS -- WHICH

IS DEFINED IN THE DEFINITION

SECTION OF THE STATUTE AND

SEXUAL BATTERY, AS DEFINED IN

THE STATUTE ITSELF ALONE IS

NOT A CRIME.

YOU HAVE TO ADD VICTIM UNDER

12 IN THIS INSTANCE.

>> WAIT A MINUTE.

IT SEEMS TO ME THAT SECTION

794011 H DEFINES THE CRIME OF

SEXUAL BATTERY AS ORAL, ANAL

OR VAGINA PENETRATION BY OR

REUNION WITH THE SEXUAL ORGAN

OF ANOTHER OR ANAL OR VAGINA

PENETRATION OF ANOTHER BY ANY

OTHER OBJECT, THAT DEFINE

THESE CRIME, AND THEN OTHER

SUBSECTIONS DEPENDING ON THE

AGE OF BOTH THE VICTIM AND THE

DEFENDANT DEFINE AS A CAPITAL

FELONY OR A LIFE FELONY, SO

WHY ISN'T THAT THE SAME KIND

OF STRUCTURE AS WE HAVE HERE?

>> OKAY, IT IS NOT THE SAME

BECAUSE FIRST OF ALL, THIS

DOESN'T SAY SEXUAL BATTERY

DEFINES THE CRIME.

IT IS PURELY A DEFINITION OF

SEXUAL BATTERY AND IF YOU LOOK

AT THAT DEFINITION, IF THESE

ACTIONS OCCUR BETWEEN TWO

CONSENSING ADULTS, IT IS NOT A

CRIME.

IT IS ONLY BECOME AS CRIME

WHEN YOU, WHEN YOU ADD AT

LEAST ONE ADDITIONAL ELEMENT

WHICH THE SEXUAL BATTERY

STATUTE IS MUCH MORE

COMPLICATED THAN THE LEWD AND

LASCIVIOUS CONDUCT STATUTE,

BUT IF YOU LOOK AT THE -- AND

SEXUAL BATTERIES NOT A WORD

USED IN THE STATUTE ITSELF.

THAT IS WHAT WE CALL IT FOR

SHORT.

BUT THE OFFENSE IS SEXUAL

BATTERY ON A CHILD UNDER 12

AND THEN YOU HAVE THE TWO

SUBSECTIONS THAT SAY IF A

PERSON UNDER 18 COMMITS THIS,

IT IS A LIFE FELONY, WHEREAS A

PERSON OVER 18 IS PERPETRATOR,

IT IS CAPITAL FELON.

IN CONTRAST AS I THINK BOTH

JUSTICE PARIENTE AND JUSTICE

ANSTEAD WERE SAYING, THE LEWD

AN LASCIVIOUS CONDUCT STATUTE

THE FIRST SUBSECTION DEFINES

THE CRIME AS CONDUCT WITH

SOLICITATION WITH A VICTIM

UNDER AGE 16, THEN YOU HAVE

TWO SUBSECTIONS THE FIRST ONE

SAYS IF THE PERPETRATOR IS 18

OR OLDER, IT IS SECOND-DEGREE

FELONY, IF THE PERPETRATOR --

THEN THE NEXT SUBSECTION IS IF

THE PERPETRATOR IS UNDER 18,

IT IS SECOND-DEGREE FELONY.

SO THE AGE OF THE DEFENDANT

DOES NOT DETERMINE WHETHER OR

NOT THERE IS A CRIME, IF

ANYBODY COMMITS LEWD AND

LASCIVIOUS MISCONDUCT ON A

VICTIM WHO IS UNDER 16, THEN

THEY COMMITTED LEWD AND

LASCIVIOUS MISCONDUCT.

BECAUSE YOU ARE EITHER OVER 18

OR YOU ARE UNDER 18.

THROWS THE ONLY TWO CHOICES

YOU HAVE HAVE HERE.

WE DON'T, WITH THE VICTIM, IF

THE VICTIM IS OVER 16, WE

DON'T HAVE A CRIME.

>> SO YOU ARE SAYING -- AGAIN,

MAYBE THERE IS A SLIGHT

DIFFERENCE IN THE STRUCTURE.

I THINK THAT FOR THE REAL

PRACTICALITY, LET'S GO BACK TO

THAT, WHICH IS A APPRENDHI HAD

NOT HAPPENED.

THE STATE AGAIN HAS ALWAYS

CHARGED THESE FACTORS,

ELEMENTS, THINGS, YOU KNOW, IN

THE INDICTMENT OR INFORMATION,

THEY HAVE ALWAYS, THE JURY HAS

ALWAYS BEEN INSTRUCTED ON

FINDING OR NOT FINDING THE

QUESTION IS TO WHETHER

SOMEBODY IS CONVICTED OF A

FIRST-DEGREE, SECOND-DEGREE

FELONY DEPEND OS THAN FINDING

AND THERE IS DOUBLE JEOPARDY

UMPLICATIONS TO WHAT THE JURY

ENDS UP FINDING IF THERE IS A

RETRIAL, RATHER THAN TRY TO

DISCERN, WELL, THIS STRICTURE

OR THAT STRUCTURE, ISN'T IT

JUST CLEANER TO SAY THAT WHEN

THESE ARE CLASSIFICATION,

WHATEVER WE WANT TO SAY,

DEGREE CRIMES, THAT THOSE ARE

ELEMENTS THE SAME AS ANY OTHER

ELEMENT AND THEY ARE TREATED

THE SAME, AND IN THIS CASE,

AGAIN, AND THIS MAY BE THE

DEFENDANT DOESN'T WANT TO HEAR

ABOUT IT, BUT GETS DISPOSED OF

BY THE FACT THAT, YOU KNOW,

WHAT THE CONCURRENCES HAVE

SAID, WHICH IS THAT THERE IS A

WAIVER IN THIS CASE, BUT FOR

THE FUTURE, I MEAN, I AM JUST

CONCERNED THAT WE ARE GOING TO

START HAVING DISTRICT COURT

LOOKING AT THE STRUCTURE OF,

YOU KNOW, THE CONVICTED

FELLOP, YOU KNOW, THE GUN, THE

MONEY AND STUFF TO COME UP

WITH A WHOLE AREA OF

JURISPRUDENCE THAT HAS BEEN

VERY WELL-DEFINED AND NOT

SUBJECT TO DEBATE ALL OF THESE

YEARS, SO TELL ME, AGAIN, FROM

A POINT OF VIEW, IN SOME TERM,

WE GOT TO SAY APPRENDHI HAS

DONE A LOT TO CONFUSE THE

RULE.

LET'S NOT ADD TO CONFUSION.

LET'S TAKE THIS PRE-APPRHENDHI

NOTHING HAS CHANGED BECAUSE,

OF IT, THESE HAVE TO BE

CHARGED IN THE INDICTMENT,

FOUND BY REASONABLE, BEYOND A

REASONABLE DOUBT AN EVERYTHING

ELSE THAT GOES ALONG WITH

ELEMENTS ARE A PART OF THESE

TYPES OF FACTORS.

WHY ISN'T THAT PET BETTER

JURISPRUDENCE?

>> WELL THE PROBLEM ARISES IN

A SITUATION LIKE THE CASE OF

DA WHICH CURRENTLY PENDING IN

THE COURT THAT THE OPPOSING

COUNSEL MENTIONED.

IN THAT CASE HAVE CHARGING

LANGUAGE WAS CORRECT BUT THE

WRONG SUBSECTION OF THE

STATUTE WAS LISTED AND THIS, I

THINK, IN THAT CASE, THE

DEFENDANT WAS CHARGED WITH

LEWD AND LASCIVIOUS

MOLESTATION, I THINK.

HE WAS UNDER 18 BUT THE WRONG

STATUTORY SUBSECTION DIDN'T

DISCOVER IT UNTIL AFTER TRIAL

PERIOD HAD RUN TO THE

RECAPTURE PERIOD.

>> WELL, THE FACT IS, THAT

COULD HAPPEN WHETHER YOU ARE

TALKING ABOUT A QUANTITY OF

DRUGS, AMOUNT OF MONEY, I

MEAN, THE STATE SOMETIMES

MAKES ERRORS.

BUT THAT -- THAT IS NOT A GOOD

REASON TO TAKE SOMETHING THAT

HAS ALWAYS BEEN CONSIDERED TO

BE AN ELEMENT AND NOW

TRANSFORM IT INTO A SENTENCING

FACTOR GIVING IT SOME LESSER

CONSTITUTIONAL SIGNIFICANCE.

>> WELL, YOUR HONOR, I

DISAGREE, IT HAS ALWAYS BEEN

CONSIDERED AN ELEMENT.

IN FACT, IF YOU LOOK AT THE

JURY INSTRUCTIONS ON SEXUAL

BATTERY ON A CHILD UNDER 12

WHICH HAVE NOT BEEN REVISED

SINCE 1995, IT INDICATES JUST

EXACTLY THAT THE AGE OF THE

VICTIM AND THE CONDUCT ARE THE

TWO ELEMENTS AND THAT THEN THE

SENTENCE DEPENDS ON --

>> LET ME $PIE THAT.

-- LET ME CLARIFY THAT.

THE AGE OF THE DEFENDANT IS AN

ELEMENT OF THE CRIME, DID WE

NOT?

>> YES, YOUR HONOR.

THE OPINION WAS VERY BRIEF.

AND BASED ON THE ANALYSIS

CONTAINING, IN THE COURT'S

OPINION.

>> SO BASICALLY THE ADOPTION

OF THE ANALYSIS IN THE -- IT

SAID IF THE VICTIM'S AGE IS AN

ELEMENT THEN THE DEFENDANT'S

AGE MUST ALSO BE AND WE KNOW

THAT THE VICTIM'S AGE IS AN

ELEMENT BASED ON THE STANDARD

JURY INSTRUCTION.

AND IT DOESN'T MENTION THE

FACT THAT THE STANDARD JURY

INSTRUCTION GOES ON TO

INDICATE THE TWO ELEMENTS AND

TO THEM IT SAYS IT IS

SENTENCING THAT THE

DEFENDANT'S AGE GOES TO.

>> WHEN YOU ARE TALKING ABOUT

THE JURY INSTRUCTION, ARE YOU

TALKING ABOUT SEXUAL BATTERY

INSTRUCTION?

OR THE LEWD AND LASCIVIOUS?

>> SEXUAL BATTERY.

THE SPECIFIC ONE ON SEXUAL

BATTERY VICTIM LESS THAN 12

YEARS OF AGE.

IT SAYS THE STATE MUST PROVE

THE FOLLOWING TWO ELEMENTS

BEYOND A REASONABLE COUT.

ONE VICTIM IS LESS THAN 12.

TWO, THEN, THERE IS VARIOUS

DESCRIPTIONS OF CONDUCT.

THEN IT GUESS ON TO SAY, THE

PUNISHMENT PROVIDED BY LAW FOR

SEXUAL BATTERY ON A PERSON

LESS THAN 12 IS GREATER

DEPENDING ON THE AGE OF THE

DEFENDANT.

THEREFORE, AS YOU FIND HIM

GUILTY OF SEXUAL BATTERY ON A

CHILD LESS THAN 12, YOU

FURTHER FIND HE WAS 18 OR

OLDER YOU, SHOULD FIND HIM OR

HER GUILTY OF SEXUAL BATTERY

ON A PERSON LESS THAN 12 BUY A

PERSON OF 18 OR OVER.

>> THE SAME WAY THE LEWD AND

LASCIVIOUS INSTRUCTION IS?

THEY TALK ABOUT WHAT THEY

CONSIDER TO BE ELEMENTS AND

THEN HOW YOU SENTENCE.

>> YES, YOUR HONOR.

>> AND IN THE TWO INSTRUCTIONS

ARE SIMILAR IN THAT REGARD AND

NEITHER ONE OF THEM HAS BEEN

CHANGED SINCE 1995.

SO IF GO BACK TO WHAT IT WAS

ORIGINALLY, IT WAS A

SENTENCING, THE DEFENDANT'S

AGE IN SEXUAL BATTERY ON A

CHILD UNDER 12 WAS CONSIDERED

TO BE A SENTENCING

CONSIDERATION AND NOT AN

ELEMENT.

>> BUT IT HAD TO BE DETERMINED

BY THE JURY AND PROVEN BY THE

STATE BEYOND A REASONABLE

DOUBT.

>> UNLIKE OTHER SENTENCING

FACTORS.

>> IT STILL HAS TO BE PROVEN.

>> WITH OUR ASSISTANCE, YOU

HAVE EXHAUSTED ALL OF YOUR

TIME WITH OUR QUESTIONS.

WE THANK YOU VERY MUCH.

>> THANK YOU, YOUR HONOR.

>> REBUTTAL.

>> JUST A QUICK ONE.

I DID WANT TO SUBMIT THAT THE

SEXUAL BATTERY STATUTE, THE

VICTIM'S AGE, THE DEFENDANT'S

AGE, I THINK THE STATUTE, BOTH

STATUTES, THE LEWD AND

LASCIVIOUS CONDUCT ARE

STRUCTURALLY SIMILAR.

>> THEY REALLY DO HAVE

DIFFERENCE, THAT IF WE ARE

GOING TO TRY TO FIGURE OUT

STRUCTURE, THINK THE STATE IS

CORRECT THAT THERE IS JUST THE

DEFINITION OF SEXUAL BATTERY

DOESN'T SET FORTH A CRIME AND

TO GET TO THE AGE OF THE

VICTIM AND THE AGE OF THE

DEFENDANT AND SO WHETHER THAT

IS DISTINCTION THAT IS

MEANINGFUL FOR WHETHER THINGS

ARE ELEMENTS SENTENCING FACTOR

OR SOMETHING ELSE IS, I

GUESS, WE'LL JUST HAVE TO DEAL

WITH.

>> WELL, I DID WANT TO POINT

OUT, THERE WERE VIRTUALLY

SIMILAR, VIRTUALLY IDENTICAL,

THEY THOUGHT THEY WERE

STRUCTURALED SIMILARLY.

I THINK THAT WAS THE QUOTE.

AND THE SECOND SAID IT WAS NOT

AN ELEMENT BUT THEY DIDN'T

REALLY, YOU KNOW, REASON

EXCEPT, WELL, THEY GAVE TWO

QUICK REASON, ONE IS, YOU

DIDN'T ADDRESS THE CASE WHICH

JUST BEEN DECIDED AND YOU

DIDN'T ADDRESS THAT WHICH I

DON'T BELIEVE YOU WOULD HAVE

BECAUSE IT WAS NOT REALLY

RIGHT, BUT THAT POINT BUT THE

OTHER REASON I THEY BASICALLY

SAID, WELL, THIS IS

DIFFERENT STATUTE.

THEY RESTED THAT WITH NO

EXPLANATION AT ALL.

>> GOING BACK TO THE WAIVER

ISSUE, THERE WAS NO MOTION FOR

JNOB IN THE CASE, IS THAT

CORRECT?

>> THAT IS TRUE.

>> IF THERE HAD BEEN A MOTION

FOR JNOB, WHAT WOULD THE TRIAL

JUDGE HAVE SAID TO THE

DEFENDANT'S LAWYER?

>> I AM SURE IT WOULDN'T HAVE

BEEN GRANTED.

I AM SURE.

HE AGREES HE WAS 18.

THEY DIDN'T OBJECT.

HE WENT ALONG WITH IT.

>> I AM THINKING, AGAIN, TAKE

A SITUATION WHERE IT IS

UNCONTRO VERTED THAT SOMEONE

STOLE $1 MILLION AND THE JURY

FINDS THAT THEY STOLE $1,000.

I MEAN, I DON'T KNOW HOW YOU

GET AROUND SAYING, YOU GOT THE

BENEFIT OF THAT LESSER

CONVICTION OF A CRIME.

YOU CAN'T NOW SAY THAT CRIME

DIDN'T EXIST?

>> RIGHT.

IF YOU USED IT AT ELEMENT IN

THE FIRST.

WOULD YOU HAVE TO USE IT IN

THE FIRST TRIAL.

I MEAN, WE DON'T, WE DON'T

CHARGE WITH SOMEONE WITH GRAND

THEFT AND GO TO TRIAL TO SEE

WHAT THE STATE CAN PROVE OH IF

IT IS OVER $5,000, THEN WE'LL

SENTENCE HIM THIS WAY.

THEY BREAK IT DOWN.

THEY HOPE FOR THE BEST.

THE STATE HOPE FOR THE

HIGHEST.

THEY HOPE THEY CAN PROVE THE

HIGHEST FELONY EXCEPT THAT YOU

KNOW SO I WHEN IT WOULD COME

BACK, IT WOULD BE MORE, THEY

WOULD HAVE TO AGAIN SHOW THE

ELEMENTS.

>> AND YOUR ARGUMENT, YOU

COULD NEVER BE, UNLESS YOU ARE

CHARGED WITH THE DEFENDANT

BEING OVER 18.

THERE IS NO LESSER OFFENSE OF

THE DEFENDANT BEING UNDER 18.

>> WELL, YOU ARE EITHER 18 OR

YOU ARE NOT.

>> ARGUMENT ACTUALLY BREAKS

DOWN, CORRECT?

>> SORT OF.

SORT OF.

>> UNDERER THAT ARGUMENT, IF

YOU HAD REQUESTED THE VERDICT

FORM TO INCLUDE THE DEFENDANT

UNDER THE AGE OF 18, CUE NOT

BE GRANTED THAT -- YOU COULD

NOT BE GRANTED THAT

INSTRUCTION.

>> THE CURRENT CHARGE?

OR THE ORIGINAL?

>> IN THE CASE, IT WAS THE

STATE THAT REQUESTED THE

VERDICT FORM.

IF YOU HAD REQUESTED A VERDICT

FORM THAT SAID THE DEFENDANT

UNDERAGE 18, YOU WOULDN'T HAVE

GOTTEN BECAUSE THE DEFENDANT

WAS NOT UNDER 18 SO IT WOULD

ARE BEEN A DIFFERENT CRIME

ACCORDING TO YOU.

>> ALREADY ACQUITED OF THAT

CRIME.

>> I AM SAYING IN THE FIRST

TRIAL.

>> OH.

IN THE FIRST TRIAL.

>> WELL, HE MAY HAVE GOTTEN IT

IF HE REQUESTED IT.

IF THERE IS SOME, I MEAN, HE

COULD REQUEST A LESSER AND

MOST POSSIBLY GET A LESSER

VERDICT FORM.

>> THAT IS NOT LESSER INCLUDE.

>> I THINK IT IS.

UNDER 18 A LESSER INCLUDED OF

OVER 18?

>> I THINK THAT IS WHAT IT

WAS.

I MAY BE WRONG.

>> THAT IS WHOLE OTHER AREA.

>> THANK YOU.

>> THANK YOU.

>> WE THANK YOU FOR THE

ARGUMENTS WE'LL TAKE THE CASE

UNDER ADVISEMENT.

THE COURT STANS IN RECESS

UNTIL 9:00 TOMORROW MORNING.

>> PLEASE RISE.