SC06-1802 – Saysinh Khianthalat v. State of Florida

State: Florida

Docket No: SC06-1802

Case Date: 01/10/2008

Preview:Supreme Court of Florida
____________ No. SC06-1802 ____________ SAYSINH KHIANTHALAT, Petitioner, vs. STATE OF FLORIDA, Respondent. [January 17, 2008] BELL, J. Is a defendant charged under section 800.04(4), Florida Statutes (2002), with lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age entitled to a jury instruction on simple battery if the information does not allege lack of consent and the evidence presented at trial does not support lack of consent? In Khianthalat v. State, 935 So. 2d 583 (Fla. 2d DCA 2006), the Second District Court of Appeal determined that the defendant was not entitled to this instruction. In Jackson v. State, 920 So. 2d 737 (Fla. 5th DCA 2006), the Fifth District Court of Appeal reached the opposite conclusion. As

explained below, we agree with the Second District and hold that a defendant facing these circumstances is not entitled to a jury instruction on simple battery. 1 FACTUAL AND PROCEDURAL BACKGROUND The Second District recited these relevant facts: The State charged Khianthalat with nine counts of committing a lewd [or lascivious battery] upon a child twelve years of age or older but less than sixteen years of age under section 800.04(4), Florida Statutes (2002). The information alleges that Khianthalat "engaged in sexual activity with [the victim], a child older than 12 years of age but less than 16 years of age." At trial, the victim testified that she was thirteen years old when she first had sex with Khianthalat: "Well, at that time I was thirteen years old and didn't know much. And I thought that since he was older than me, that it was okay and no one would find out, and we would just do our thing and no one would ever know." During the jury charge conference, Khianthalat asked the court to instruct the jury on simple battery as a lesser-included offense of committing a lewd [or lascivious battery] upon a child. The State objected because the information did not allege and the victim never testified that Khianthalat touched her against her will. Khianthalat argued that the instruction was proper because the minor victim could not legally consent. The trial court refused to give the instruction. Khianthalat, 935 So. 2d at 584. Thereafter, Khianthalat was convicted and sentenced for lewd or lascivious battery upon a child twelve years of age or older but less than sixteen years of age. Id. 2

1. We have jurisdiction. See art. V,

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