Supreme Court of Florida ____________
No. SC20-1656 ____________
NGOC C. THACH, Petitioner,
vs.
STATE OF FLORIDA, Respondent.
June 30, 2022
GROSSHANS, J.
In this case, we consider whether midtrial amendments to a
charging document that alter the elements of a criminal offense are
per se prejudicial. For the reasons explained below, we hold that
any such amendments should be assessed on a case-by-case basis
to determine, based on the totality of the circumstances, if they
prejudice the substantial rights of the defendant. Consistent with
our holding, we approve the First District Court of Appeal’s decision
in Thach v. State, 304 So. 3d 387, 388 (Fla. 1st DCA 2020), and
disapprove the Fourth District Court of Appeal’s decisions in Viladoine v. State, 268 So. 3d 804 (Fla. 4th DCA 2019), and Simbert
v. State, 226 So. 3d 883 (Fla. 4th DCA 2017), to the extent that they
apply a per se prejudice rule to midtrial amendments. 1
I. Background
Through a second amended information, the State charged
Ngoc C. Thach with three counts of capital sexual battery, nine
counts of sexual battery, and three counts of lewd or lascivious
molestation. As charged, these crimes were committed against his
three stepdaughters. Relevant to this case are two counts of capital
sexual battery and two counts of sexual battery. We refer to all four
as sexual battery counts.
At trial, the three stepdaughters testified for the State,
detailing Thach’s multiple sexual encounters with them. However,
they did not give any testimony establishing one element of sexual
battery (penetration or union with the victim’s body part) for the
four sexual battery counts. As a result, the evidence as to those
charges was insufficient to prove an essential element of the
offenses as charged. See § 794.011(1)(h), Fla. Stat. (2017).
1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
-2- Noting the lack of evidence of penetration or union, Thach
sought a judgment of acquittal as to those four sexual battery
charges. After expressing agreement with Thach’s insufficiency
argument, the State moved to amend the four counts so that each
alleged the crime of lewd or lascivious molestation. Defense counsel
objected, describing the prejudice to Thach as follows:
Well, Judge, I guess the only thing is that the lewd and lascivious molestation would require evidence of lewd or lascivious touching. And so the State is alleging that the union satisfies that and potentially I could have cross- examined the witness more in that sense, had I known the State might proceed on that charge. And I understand that, you know, I had the opportunity to cross-examine the witness, but to that extent that’s the only thing I can suggest to the court would create a prejudice.
Rejecting Thach’s argument on prejudice, the trial court
allowed the amendment. Ultimately, the jury found Thach guilty on
the four amended counts and others. The court entered judgment
in accordance with the verdicts and imposed lengthy prison
sentences.
Thach appealed, arguing that the trial court erred in allowing
the midtrial amendment. The First District disagreed. At the
outset, the court articulated the following legal standard governing
-3- amendments: “[T]he State ‘may substantively amend an information
during trial, even over the objection of the defendant, unless there
is a showing of prejudice to the substantial rights of the
defendant.’ ” Thach, 304 So. 3d at 388 (quoting State v. Anderson,
537 So. 2d 1373, 1375 (Fla. 1989)). Applying that standard, the
court held that the amendment did not prejudice Thach. This was
so, the First District reasoned, because the four sexual batteries
were charged in such a way “that the amended lewd or lascivious
molestation charges could not help but have been proven if the . . .
[sexual battery] allegations were proven.” Id. at 388. Judge Bilbrey
dissented. He would have reversed, reasoning that because the
amendment altered the elements of the charged offense it violated
due process and was per se prejudicial. Id. at 391 (Bilbrey, J.
dissenting).
Thach then sought discretionary review of the First District’s
decision on the basis that it expressly and directly conflicts with the
Fourth District’s case law on the application of a per se prejudice
-4- rule for substantive midtrial amendments. We granted
discretionary review to resolve the conflict.2
II. Legal Standard
Our well-established standard for amending an information
midtrial was first adopted in Lackos v. State, 339 So. 2d 217, 219
(Fla. 1976). In that case, we abandoned a strict formalistic
approach and adopted a more flexible standard which required the
trial court to consider the prejudice to the accused to determine if
the amendment was permissible. We noted that the emphasis on
prejudice, rather than technical irregularities, was consistent with
rule 3.140(o) of the Florida Rules of Criminal Procedure.3
2. Because the conflict issue here requires us to determine the proper rule of law governing substantive midtrial amendments, the standard of review is de novo. See Khianthalat v. State, 974 So. 2d 359, 360 (Fla. 2008).
3. Today’s version of the rule is nearly identical to the prior version we considered in Lackos and provides as follows:
No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the
-5- In the forty-five years since Lackos was decided, we have
reaffirmed our commitment to the prejudice standard as governing
the permissibility of midtrial amendments. See Anderson, 537 So.
2d at 1375 (“Lackos stands for the proposition that the state may
substantively amend an information during trial, even over the
objection of the defendant, unless there is a showing of prejudice to
the substantial rights of the defendant.”); State v. Clements, 903 So.
2d 919, 921 (Fla. 2005) (Holding that the state may substantively
amend an information midtrial unless it prejudices the defendant’s
substantial rights).
Our case law has never recognized a per se prejudice rule.
Rather, the origin of this rule appears to trace back to the Fourth
District’s decision in Green v. State, 728 So. 2d 779 (Fla. 4th DCA
1999). In applying the prejudice standard, the Fourth District
considered a midtrial amendment that changed the identity of the
battery victim. Consistent with our case law, the Fourth District
accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.
Fla. R. Crim. P. 3.140(o).
-6- held that this amendment prejudiced the substantial rights of the
defendant by significantly impairing the preparation of his defense.
However, one sentence in Green’s analysis appears to have laid the
groundwork for what would later be understood as the per se
prejudice rule. The Green court reasoned that an “amendment is
permissible when it merely clarifies some detail of the existing
charge.” Id. at 781.
The First District expanded upon this reasoning in Wright v.
State, 41 So. 3d 924, 926 (Fla. 1st DCA 2010). Holding that a
substantive midtrial change to the elements of the crime charged is
per se prejudicial, the district court reasoned:
While a trial court’s ruling on a motion to amend the information is reviewed for an abuse of discretion, it is well settled that the State may not amend an information during trial if the amendment prejudices the defendant. It is likewise clear the changing or adding of an offense in an information is a substantive change evoking prejudice and requiring a continuance. Further, an amendment that substantively alters the elements of the crime charged is per se prejudicial.
Id. at 926 (emphasis added) (citations omitted).
Since Wright, the per se prejudice rule has been applied in
only a handful of cases—namely, the two conflict cases.
-7- In Simbert, the Fourth District reversed the defendant’s
conviction for lewd or lascivious battery after the State’s midtrial
amendment changed an element of the charge from oral to digital
penetration. 226 So. 3d at 885. The court, relying on Green and
Wright, held that the amendment was per se prejudicial because it
did not merely clarify the charge but instead changed an essential
element of the crime. Id. at 885-86.
Similarly, in Viladoine, the Fourth District reversed a sexual
battery conviction where the mode of unlawful contact was
amended midtrial, reasoning that the amendment altered the
elements of the charged crime and was thus per se prejudicial. 268
So. 3d at 805-06.
Having reviewed our case law, we now conclude that this per
se prejudice rule is an unwarranted expansion of Lackos, Anderson,
and Clements—which do not hold or suggest that one factor will
always be dispositive of the prejudice analysis. And neither Thach
nor the dissent provide any persuasive reason to extend Lackos,
Anderson, and Clements in this regard. Accordingly, we reaffirm
that the proper standard is an individualized showing of prejudice
-8- to the substantial rights 4 of the defendant. Prejudice, in this
context, depends not on any one factor, but on the totality of the
circumstances at the time of the amendment. Contrary to the
dissent’s unfounded assertion, we are not creating a new standard
today. The standard we now adhere to has been our rule for forty-
five years. 5
Nor do we share Thach’s or the dissent’s concerns that this
standard is too difficult for Florida courts to apply uniformly. In
comparable circumstances, we have found this type of
individualized fact-specific analysis workable. For example, when
the State commits a discovery violation in a criminal case, it does
4. In this context, a defendant’s substantial rights encompass the right to a fair trial. 38 Fla. Jur. 2d New Trial § 12 (2022) (equating substantial rights with entitlement to a fair trial); cf. Carlson v. State, 166 So. 3d 957, 959 (Fla. 4th DCA 2015); Hutchinson v. State, 738 So. 2d 473 (Fla. 4th DCA 1999); Peevey v. State, 820 So. 2d 422 (Fla. 4th DCA 2002). 5. We acknowledge that today is the first time we have used the phrase “totality of the circumstances” in discussing the prejudice analysis. However, it is clear from our case law that the prejudice determination depends on the facts and circumstances of the case being reviewed. Thus, we break no new ground by saying that the prejudice analysis requires consideration of the totality of the circumstances.
-9- not result in an automatic mistrial. Instead, the trial court
conducts a Richardson 6 analysis to determine whether the discovery
violation warrants a mistrial or some other remedy. See Landry v.
State, 931 So. 2d 1063, 1065 (Fla. 4th DCA 2006). Carrying out
this analysis requires courts to look to the specific facts and
circumstances of each case and determine whether the defendant
was prejudiced by the discovery violation. See McDuffie v. State,
970 So. 2d 312, 321 (Fla. 2007). And like the individualized
prejudice analysis for midtrial amendments, it safeguards
defendants’ rights while ensuring the prompt and efficient
administration of justice.7
6. Richardson v. State, 246 So. 2d 771 (Fla. 1971).
7. To the extent the dissent expresses concern that a totality of the circumstances test is insufficient to protect the constitutional interest at stake, that concern is misplaced. Courts routinely analyze due process claims by assessing the totality of the circumstances. See Moore v. State, 289 So. 3d 943, 945 (Fla. 4th DCA 2020) (voluntariness of confession); State v. Laing, 182 So. 3d 812, 816 (Fla. 4th DCA 2016) (objective entrapment); Rolle v. State, 112 So. 3d 729, 730 (Fla. 3d DCA 2013) (suggestiveness of out-of- court eyewitness identification); Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003) (imposition of increased sentence “after unsuccessful plea discussions in which the trial judge participated”); Luckes v. Cnty. of Hennepin, 415 F.3d 936, 939 (8th Cir. 2005) (extended detention following arrest authorized by lawful warrant); Norris v. Engles, 494 F.3d 634, 638 (8th Cir. 2007)
- 10 - Finally, we categorically reject the dissent’s assertion that our
decision will lead to “trials by ambush.” In no way do we suggest
that the State has unfettered discretion to amend the information at
any time or for any reason. Where, under the facts and
circumstances of the individual case, an amendment prejudices a
defendant’s substantial rights, that amendment would be improper.
See, e.g., Davis v. State, 313 So. 3d 835 (Fla. 2d DCA 2021); Davis
v. State, 740 So. 2d 86 (Fla. 1st DCA 1999); Johnson v. State, 439
So. 2d 342 (Fla. 2d DCA 1983); Turner v. State, 376 So. 2d 429, 430
(Fla. 1st DCA 1979). However, we decline to adopt a blanket rule
that requires a finding of prejudice when a midtrial amendment
alters the elements of a charged offense.
D. Application
Having determined the applicable law, we return to the facts
before us. The First District applied the correct rule of law by using
the prejudice standard and engaging in a fact-specific individualized
inquiry. It considered the allegations in the information compared
(conscience-shocking conduct by government officer); Hale v. Boyle Cnty., 18 F.4th 845, 852 (6th Cir. 2021) (excessive force on detained individuals).
- 11 - to the amended charges and the defendant’s theory of the case. As
to the latter point, the court stressed:
The State charged and convicted Appellant on other counts of lewd or lascivious molestation against the same victims. And Appellant’s trial tactics on these counts never suggested that the stepdaughters misinterpreted Appellant’s touching, or that he did not conduct these acts in a sensual manner. Appellant cross-examined each victim, knowing that he was charged with multiple counts, including other lewd or lascivious acts, without questioning how he touched them. Instead, Appellant’s defensive posture was that his victims’ allegations were all fabricated.
Thach, 304 So. 3d at 389 (citing Holland, 210 So. 3d 238, 240
(Fla. 1st DCA 2017)).
We further note that the amended charges alleged sexually
motivated touching against the same victims and stemming from
the same incidents as the original charges.
The dissent seems to suggest that Thach was prejudiced
because he was unaware of the amended charges before trial and
thus relied on the original charges in his jury selection, opening
statements, and cross-examination of the witnesses. See dissenting
op. at 18. However, the dissent overlooks facts supporting a finding
of no prejudice. Besides the points noted above, had the amended
charges prejudiced Thach, we would have expected him to request
- 12 - that the court recall witnesses for additional cross-examination so
that he “could have cross-examined the witness[es] more in that
sense.” But Thach did not. Nor did he request a continuance.
Instead, he chose to proceed on the charges as amended and gave a
closing argument that repeated the same themes discussed in
opening statements.
Accordingly, based on our review of the record, we agree that
Thach was not prejudiced by the midtrial amendment. Thus, the
amendment was permissible.
E. Conclusion
Because the First District applied the correct prejudice
standard and its analysis is supported by the record, we approve
the decision below. We disapprove of Simbert, Viladoine, and Wright
to the extent they apply the per se prejudice rule and are
inconsistent with this opinion.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, and COURIEL, JJ., concur. LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
- 13 - LABARGA, J., dissenting.
At the time this case proceeded to trial by jury, Ngoc Thach
was charged with three counts of capital sexual battery, eight
counts of sexual battery, and three counts of lewd or lascivious
molestation. The charged offenses stemmed from incidents
involving Thach’s three stepdaughters. Because the victims failed
to give testimony establishing penetration or union with respect to
four of the sexual battery counts, Thach sought a judgment of
acquittal after the conclusion of the State’s case-in-chief. Over
Thach’s prejudice objections, the trial court permitted the State to
amend—or replace—these four counts so that each instead charged
the crime of lewd or lascivious molestation. Thach did not testify
nor present any witnesses; thus, the evidentiary phase of this jury
trial formally ended immediately after the State was permitted to
replace the four sexual battery counts with four counts of lewd or
lascivious molestation. 8
8. In fact, for all practical purposes, the presentation of evidence ended even before the charges were amended. After the State rested its case and the trial court excused the jury to address Thach’s motion for judgment of acquittal—which led to the State
- 14 - Consequently, defense counsel delivered his closing argument
without having an opportunity to cross-examine the victims
specifically about the amended charges. Because Thach was clearly
prejudiced by these amendments at the very end of the evidentiary
phase of his trial, his unequivocal right to due process of law was
violated.
The events leading up to the motion for judgment of acquittal
and the trial court’s ruling are well described in Judge Bilbrey’s
dissent:
After the State rested its case-in-chief, Appellant moved for a judgment of acquittal as to counts 2 and 3, each of which alleged sexual battery by a person age 18 or older upon a child under the age of 12 years, a crime known as capital sexual battery. The prosecutor initially agreed that a JOA was warranted as to counts 2 and 3. The prosecutor also agreed that a JOA was warranted as to count 8, which alleged sexual battery by a person in familial or custodial authority of a child between the age of 12 and 18 years. Further, the prosecutor conceded that the evidence did not establish capital sexual battery as alleged in count 1.
As for counts 12 and 13, the prosecutor argued that those counts of sexual battery by a person in familial or custodial authority of a child between the age of 12 and 18 years, should be “JOAed down to a lesser included
being allowed to amend the charges—the defense rested without presenting any witnesses.
- 15 - offense[s] of molestation.” Defense counsel reminded the trial court that lewd and lascivious molestation is not a lesser included offense of sexual battery by a person in familial or custodial authority. The trial court agreed to give the parties some time to consider the appropriate dispositions.
After a break, the prosecutor announced that she did not think, after all, the charges could be reduced by “JOA-ing . . . down,” and therefore, she orally moved to amend count 1 from capital sexual battery to lewd or lascivious molestation. The defense objected. When asked what prejudice the defense would suffer, defense counsel replied that his cross-examination would have been different, and he would have cross-examined the victim regarding the evidence to support lewd and lascivious touching. The objection was overruled. The State was also permitted to orally amend counts 2, 12, and 13 to allege lewd and lascivious molestation rather than sexual battery, over the objection of the defense. A judgment of acquittal was entered as to counts 3 (capital sexual battery) and 8 (sexual battery by a person in familial or custodial authority on a child between the age of 12 and 18 years).
Thach v. State, 304 So. 3d 387, 390 (Fla. 1st DCA 2020) (Bilbrey, J.,
dissenting) (citations omitted) (emphasis added).
The First District agreed with the trial court’s conclusion,
holding that amending the four counts did not prejudice Thach. Id.
at 388. The court noted, “While the two crimes are different, the
manner that these four sexual battery counts were charged in the
second amended information were such that the amended lewd or
- 16 - lascivious molestation charges could not help but have been proven
if the greater offense allegations were proven.” Id.
As emphasized by Judge Bilbrey’s dissent, “[a]lthough the
conduct constituting capital sexual battery will as a practical
matter ordinarily—if not always—also constitute lewd or lascivious
molestation, the formal elements of these two crimes are quite
different.” Id. at 391 (quoting Roughton v. State, 185 So. 3d 1207,
1210 (Fla. 2016)). Section 794.011(1)(h), Florida Statutes (2016),
defines “sexual battery” as the “oral, anal, or vaginal penetration by,
or union with, the sexual organ of another or the anal or vaginal
penetration of another by any other object,” while section
800.04(5)(a) defines lewd or lascivious molestation as when a
perpetrator “intentionally touches 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 forces or
entices a person under 16 years of age to so touch the perpetrator.”
Notably, the crime of “[l]ewd or lascivious battery is a
permissive lesser included offense of sexual battery, Williams v.
State, 957 So. 2d 595, 599 (Fla. 2007), and thus an ‘acquittal down’
could not have been granted reducing the charges to lewd or
- 17 - lascivious battery either.” Thach, 304 So. 3d at 391 n.2 (Bilbrey, J.,
dissenting) (citing State v. Green, 149 So. 3d 1146, 1148 (Fla. 2d
DCA 2014) (explaining that only a necessarily lesser included
offense of the charged offense may be the subject of an “acquittal
down”)). Thus, the State’s only option was to substantively amend
the four charges, leaving defense counsel with the prospect of
delivering his closing argument without having had the opportunity
to cross-examine the victims specifically about the amended
charges.
It is axiomatic that due process of law affords a person
charged with having committed a crime with the right to know what
the charge is before proceeding to trial. Here, after the defense
proceeded throughout the State’s entire case-in-chief in reliance on
the original charges, the State was permitted to substantively
amend four charges. Defense counsel participated in jury selection,
presented an opening statement, and conducted cross-examination
of state witnesses, all under the umbrella of the original charges.
Naturally then, once the State moved to amend the charges, defense
counsel objected to the amendments and addressed the issue of
prejudice. He stated: “I guess the only thing is that the lewd and
- 18 - lascivious molestation would require evidence of lewd or lascivious
touching. And so the State is alleging that the union satisfies that
and potentially I could have cross-examined the witness more in
that sense, had I known the State might proceed on that charge.
And I understand that, you know, I had the opportunity to cross-
examine the witness, but to that extent that’s the only thing I can
suggest to the court would create a prejudice.”
Contrary to the First District’s curious suggestion that it
“cannot imagine what other questions that Appellant would have
asked the witnesses about the manner of his touches,” as noted by
defense counsel at the time, he “could have cross-examined the
witness more in that sense” had he known that the original charges
would later be replaced with substantively different charges. Id.
Accordingly, I disagree with the majority’s conclusion that
Thach was not prejudiced by these late amendments.
I also disagree with the majority’s decision to disapprove of the
long-established per se prejudicial rule, which the majority notes,
see majority op. at 6, traces back to 1999. See majority op. at 1-2
(“We . . . disapprove the Fourth District Court of Appeal’s decisions
in Viladoine v. State, 268 So. 3d 804 (Fla. 4th DCA 2019), and
- 19 - Simbert v. State, 226 So. 3d 883 (Fla. 4th DCA 2017), to the extent
that they apply a per se prejudice rule to midtrial amendments.”).
In its place, the majority created a new standard for determining
whether charges may be changed at any time during a trial:
“Prejudice, in this context, depends not on one factor, but on the
totality of the circumstances at the time of the amendment.”
Majority op. at 9. Comparing this new standard to a Richardson
inquiry, the majority contends that the new standard will not be
difficult for Florida courts to apply uniformly. 9 See majority op. at
9. This standard, however, casts such a wide net of factors and
circumstances to consider that it is unlikely any defendant will ever
be able to prove prejudice, regardless of how obvious the prejudicial
effect of an amendment may be.
Moreover, the majority’s new standard ignores the import of
the notice of charges aspect of due process of law: the accused
must know the charges before trial. I agree with Judge Bilbrey that
“[w]hen the State is permitted to amend a charge in midtrial, not
merely to correct a scrivener’s error, but instead to change an
9. Richardson v. State, 246 So. 2d 771 (Fla. 1971).
- 20 - element of the offense, a defendant is thus subjected to be found
‘guilty of a charge for which he was not on trial’ and such is a
violation of due process.” Thach, 304 So. 3d at 391 (Bilbrey, J.,
dissenting). 10
For more than two decades, the per se prejudicial rule has
guarded the right to due process in cases where the State seeks,
during trial, to substantively change a charged offense. This sound
rule should have been applied here. It makes absolutely no sense,
after not only the conclusion of the State’s case, but what turned
out to be the presentation of all the evidence, to allow the State to
amend four charges to allege crimes that require proof of different
elements. For the majority to permit such a clear violation of due
process will, in no small measure, facilitate the very thing that
Florida laws, including Florida’s extensive rules of criminal
procedure, are intended to prevent—trials by ambush.
10. Judge Bilbrey and the majority have noted that the amendments in this case occurred in midtrial. However, because Thach exercised his right not to present a defense case, the amendments actually occurred at the end of the evidentiary phase of the trial, with only closing argument and the jury charge left.
- 21 - The implications of the majority’s decision to reject the per se
prejudicial rule cannot be understated. As a result of the majority’s
disapproval of this decades-long safeguard, citizens will be required
to proceed to trial without certainty of what the ultimate charges
against them will be.
Because I cannot agree to such a diminution of our valued
constitutional right to due process of law, I cannot agree with the
majority’s decision.
I respectfully dissent.
Application for Review of the Decision of the District Court of Appeal Direct Conflict of Decisions
First District – Case No. 1D19-3660
(Leon County)
Jessica J. Yeary, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida,
for Petitioner
Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, Florida
for Respondent
- 22 -