Lesovsky v. State

198 So. 3d 988, 2016 Fla. App. LEXIS 12073, 2016 WL 4205336
CourtDistrict Court of Appeal of Florida
DecidedAugust 10, 2016
DocketNo. 4D12-4010
StatusPublished
Cited by5 cases

This text of 198 So. 3d 988 (Lesovsky v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lesovsky v. State, 198 So. 3d 988, 2016 Fla. App. LEXIS 12073, 2016 WL 4205336 (Fla. Ct. App. 2016).

Opinion

KLINGENSMITH, J.

Brigid Lesovsky appeals from her conviction and sentence for two counts of lewd and lascivious molestation and one count of lewd and lascivious conduct.1 She contends that there was insufficient evidence to support the conviction for lewd and lascivious conduct as it was charged in the information. After a thorough review of the record, we agree that the evidence was insufficient, and also find that her defense counsel was ineffective for failing to adequately address this issue below. We therefore reverse only her conviction for lewd and lascivious conduct.

The victim became acquainted with Le-sovsky while participating in youth sports. Over time, a closer relationship formed between the two and they began speaking with each other .almost daily. At one point, Lesovsky asked the victim about who she was attracted to, and offered to help the victim understand her sexuality. The victim’s parents eventually discovered the relationship and reported it to the authorities.

When interviewed by law enforcement, Lesovsky acknowledged that she had been meeting with the victim after school in her car, where the two of them would kiss. She also admitted that on one of these occasions she touched the victim’s breast, and on another occasion put her hand on .or in the victim’s vagina until the victim told her to stop.

The State filed an information against Lesovsky alleging that she had committed two acts of lewd and lascivious molestation — the first by “intentionally touch[ing] in a lewd and lascivious manner the breast, or the clothing covering it, of [the victim]” (“Count I”), and the other by “intentionally touch[ing] in a lewd and lascivious manner the genital area, or the clothing covering it, of [the victim]” (“Count II”). The information further alleged that Lesovsky, “being eighteen (18) years of age or older, did intentionally touch [the victim], a person under sixteen (16) years of age, in a lewd or lascivious manner by placing her tongue in the mouth of [the victim], contrary to F.S. 800.04(6)(a) and F.S. 800.04(6)(b)” (“Count IV”). (Emphasis added).

During the trial there was testimony that on at least one occasion Lesovsky kissed -the victim and used her hand to touch the victim’s breast and “groin area.” There was also evidence that on another occasion Lesovsky used her finger to penetrate the victim’s vagina. Regarding Count IV, the State asked the victim on direct examination, “[w]hen you say kissing, can you tell me what parts of your body you were using [f[ touching?” The victim responded by stating only that she and Lesovsky had kissed “[m]outh to mouth.”

In addition to this testimony, the State introduced text messages recovered from a cell phone Lesovsky had given to the victim, which identified Lesovsky by name and showed that Lesovsky had asked the [990]*990victim: 1) “[w]ho did I kiss a million times in the bathroom?”; and 2) “[c]an I kiss you places other than your head, too?”

Lesovsky moved for judgment of acquittal at -the conclusion of the State’s case, arguing that “[biased on the testimony, Judge, I don’t think the State has proven their case. I don’t think there’s any lewd or lascivious touching or anything inappropriate. I don’t think they’ve made their case.” The court denied the motion.

The jury convicted Lesovsky on Counts I, II and IV, and the trial court denied a renewed motion for judgment of, acquittal and motion for a new trial. In that combined motion, Lesovsky simply argued that the verdict was “contrary to law and the weight o'f the evidence,” and that “[t]he evidence produced at trial was insufficient to sustain the verdict.” This appeal followed. ‘

Our review of the record reveals there was sufficient evidence presented at trial to support Lesovsky’s conviction on both Count I and Count II. At issue here is whether there was enough evidence for the jury to convict Lesovsky of committing lewd and lascivious conduct under Count IV by “placing her tongue in the mouth of [the- victim].” The State maintains that the circumstantial evidence presented was sufficient to prove that Lesovsky placed her tongue in the victim’s mouth, despite the lack of.any direct evidence thereof. Lesovsky submits that her counsel was ineffective for failing to argue for acquittal with specificity.

As the Florida Supreme Court has noted:

Ineffective assistance of counsel claims present mixed questions of law and fact..- Thus, we employ a mixed standard of .review in which we defer .to the circuit court’s findings of fact that are supported by competent, substantial evidence, and we review that court’s application of law to those facts de novo.

Carter v. State, 175 So.3d 761, 767 (Fla.2015).

“To warrant reversal and a new trial” for ineffective assistance of counsel, a defendant “must establish that: 1) counsel’s actions were deficient; and 2) the deficiency so affected the trial that confidence in the outcome is undermined.” Morgan v. State, 146 So.3d 508, 514 (Fla. 5th DCA 2014). As the Fifth District explained in Morgan, “[t]he second requirement bears the moniker prejudice prong, and requires that [the defendant] establish that he was deprived of a fair trial with a reliable result.” Id. (citations omitted) (internal quotation marks omitted).

We recently explained that:

“The general rule is .that a claim of ineffective assistance of counsel may not be raised on direct appeal.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). “On rare occasions, the appellate courts make an exception' to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Id.

For example, failure to move for a judgment of acquittal when the State has not proved an essential element of its case, when it is clear that the State could not reopen its case to prove that essential element, amounts to ineffective assistance of counsel that' may sometimes be adequately assessed from the record on direct appeal.

Id.

Bagnara v. State, 189 So.3d 167, 171 (Fla. 4th DCA 2016).

In Bagnara, this court held on direct appeal that defense counsel’s failure to move for judgment of acquittal on the basis that the State did not prove an element of the crime amounted to ineffective [991]*991assistance of counsel, requiring reversal. See id. at 172 (“As the State did not sufficiently prove the mower was worth more than $300 when stolen, it is plain from the face of the record that counsel’s failure to seek a judgment of acquittal on the grand theft charge constituted ineffective assistance of counsel.”). Similarly, in this case the. State failed. to present any evidence whatsoever that Lesovsky placed her tongue in the victim’s mouth. As such, this case presents a straightforward example of a situation where the evidence failed to establish that the offense was committed “in the manner charged.” Brown v. State, 41 So.3d 259, 262 (Fla. 4th DCA 2010) (“[Wjhere an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged — ” (alteration in original) (quoting Zwick v. State, 730 So.2d 759, 760 (Fla. 5th DCA 1999))); see also Reyes v. State, 149 So.3d 89, 91 (Fla.

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Bluebook (online)
198 So. 3d 988, 2016 Fla. App. LEXIS 12073, 2016 WL 4205336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lesovsky-v-state-fladistctapp-2016.