Mr. Insko was convicted of lewd and lascivious conduct of a person under the age of 16 by a defendant under the age of 18. The Second District Court of Appeal reversed the conviction based on an issue relating to evidence and sent the case back for a new trial. Mr. Insko argued he could not be tried again because he was over the age of 18 at the time of the crime. The state argued that the age of the offender was not an essential element of the crime. The trial court ruled the issue of age could be set aside. Mr. Insko pleaded no contest and reserved his right to appeal. The 2nd DCA upheld the trial court and asked this Court to address the question.