Third District Court of Appeal
State of Florida
Opinion filed December 2, 2020.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0145
Lower Tribunal No. 12-220-A-M
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Benjamin Aquino,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Monroe County, Ruth L. Becker, Judge.
Benjamin Aquino, in proper person.
Ashley Moody, Attorney General, for appellee.
Before SCALES, GORDO and LOBREE, JJ.
LOBREE, J.
Benjamin Aquino (hereinafter the “defendant”), appeals from an order
denying his postconviction motion brought pursuant to Florida Rule of Criminal
Procedure 3.850. For the reasons discussed below, we affirm.
The defendant argues that his conviction and sentence should be vacated
based on the same two claims of alleged ineffective assistance of trial counsel that
he attempted to raise on his direct appeal. See Aquino v. State, 276 So. 3d 464, 466
(Fla. 3d DCA 2019). Specifically, he argues that his trial attorney was ineffective
for: 1) failing to make an adequate motion for judgment of acquittal based on the
sufficiency of the evidence, and 2) objecting to the State’s request to instruct the jury
on the lesser included offense of attempted lewd or lascivious conduct.
The facts of the case were summarized on direct appeal as follows:
The defendant was charged by information with one
count of lewd or lascivious conduct. Specifically, the
information states that the defendant, a person eighteen
years or older, between July 1, 2012 and September 2,
2012, “did unlawfully and intentionally touch C.E.M., a
person less than 16 years of age, in a lewd or lascivious
manner [or] did solicit C.E.M. to commit a lewd or
lascivious act, by grabbing victim and forcing her to sit on
his lap and forcibly kissing her neck, contrary to Florida
Statute 800.04(6)(a) and (b).”
At the jury trial, the State called C.E.M. (“the
victim”) and others to testify against the defendant. The
victim testified that the defendant and her father were
neighbors, and she was friends with the defendant’s son,
Jonathan. On September 2, 2012, when she was fourteen
years old, she walked over to the defendant’s home around
11:00 p.m. because her father told her earlier that evening
that Jonathan wanted to talk to her. When she arrived, the
defendant told her that Jonathan was sleeping, and she
entered to confirm that Jonathan was indeed sleeping. The
defendant, who was sitting on a couch, grabbed the
victim's arm, pulled her onto his lap, and began to kiss her
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neck while his hands were midway on her thigh. The
victim sat on the defendant's lap for about thirty seconds
before getting off. The victim thought about leaving, but
did not because she remembered a conversation she had
with the defendant about sharp knives that were on the
wall of his home. The defendant then moved from the
couch to a loveseat, and he called her over. Despite being
scared, the victim sat next to him on the loveseat. The
defendant then told the victim, “You’re a beautiful girl.
You’re not a baby anymore. You’re a grownup.” The
defendant then asked the victim if she knew that he liked
her, and in response, the victim said, “No.” The victim was
wearing a skirt and a tank top with a bathing suit
underneath, and the defendant then began to play with the
hem of the victim's skirt and asked her to allow him to see
her bathing suit. She “swatted his hand away because it
felt weird,” but she lifted the strap of her tank top and
exposed the strap of her bathing suit because she thought
if he could see the color of her bathing suit, he would then
leave her alone. He also asked the victim if he could have
a picture of her. The victim then got “really
uncomfortable” and began to exit. As she was exiting, the
defendant asked her if she was going to tell anybody, and
the victim said, “No.”
The victim also testified as to an incident that
occurred about two months prior to the September 2nd
incident. While at the defendant’s home, the defendant
wanted to teach his son, Jonathan (who was then about ten
years old), how to kiss a girl. The victim testified that the
defendant wanted to use her “like a little guinea pig,” and
the defendant tried to kiss the victim, but she covered her
mouth with her hand.
After the State rested, trial counsel moved for a
judgment of acquittal, but the motion was not based on the
sufficiency of the evidence. Following the denial of the
motion, the defendant testified on his own behalf. He
testified that the victim did not come over to his home on
September 2, 2012 at approximately 11:00 p.m., nothing
occurred between him and victim, and the victim was
lying.
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Id. at 466-67.
To prevail on an ineffective assistance of counsel claim pursuant to Strickland
v. Washington, 466 U.S. 668 (1984), a defendant must satisfy two requirements:
First, the claimant must identify particular acts or
omissions of the lawyer that are shown to be outside the
broad range of reasonably competent performance under
prevailing professional standards. Second, the clear,
substantial deficiency shown must further be
demonstrated to have so affected the fairness and
reliability of the proceeding that confidence in the
outcome is undermined.
Brown v. State, 45 Fla. L. Weekly S229 (Fla. Aug. 27, 2020) (quoting Bolin v. State,
41 So. 3d 151, 155 (Fla. 2010)).
Regarding Strickland’s deficiency prong, there is a “strong
presumption” that trial counsel's performance “falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Moreover,
“[a] fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Id. The defendant bears
the burden to “overcome the presumption that, under the
circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. (quoting Michel v. Louisiana,
350 U.S. 91, 101, 76 S.Ct. 158, 100 L. Ed. 83 (1955)).
Regarding the prejudice prong, “Strickland requires
defendants to show ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. ... [A] ‘reasonable
probability’ is a ‘probability sufficient to undermine
confidence in the outcome.’” Henry v. State, 948 So. 2d
609, 621 (Fla. 2006) (quoting Strickland, 466 U.S. at 694,
104 S.Ct. 2052).
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Id.
In his first claim, the defendant asserts that his trial counsel was ineffective in
failing to move for a judgment of acquittal. In order to prove the charge of lewd or
lascivious conduct, the State was required to prove three elements beyond a
reasonable doubt: 1) the victim was younger than 16 years of age; 2) the defendant
intentionally touched the victim in a lewd or lascivious manner; and 3) the defendant
was 18 years of age or older at the time of the offense. § 800.04(6)(a) and (b), Fla.
Stat. (2012). The age elements as to both the victim and the defendant were not in
dispute. 1 Thus, the defendant essentially argues that his counsel should have moved
for acquittal on the basis that the State did not prove that he intentionally touched
the victim in a lewd or lascivious manner. On direct appeal, we found that there was
sufficient evidence from which a jury could determine that the defendant committed
the offense of lewd or lascivious conduct based on the victim’s testimony, if believed
by the jury, and jury instructions on the meanings “lewd” and “lascivious.” Aquino,
276 So. 3d at 468.
The defendant contends that the victim’s testimony cannot be believed and
that she fabricated the allegations against him because she is a troubled teen, who
1
The victim testified that she was under the age of sixteen at the time, and the
defendant does not make any claims to the contrary. The arresting officer testified
that the defendant was 56 years old. The defendant admitted that he had lived in
Marathon, Florida for eighteen and a half years, and thus was clearly over eighteen
years old.
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just wanted attention. However, when considering a motion for judgment of
acquittal, all evidence is viewed in the light most favorable to the State. See Talley
v. State, 260 So. 3d 562, 576 (Fla. 3d DCA 2019). “The fact that the evidence is
contradictory does not warrant a judgment of acquittal because the weight of the
evidence and the witnesses’ credibility are questions solely for the jury.” Fitzpatrick
v. State, 900 So. 2d 495, 508 (Fla. 2005) (citing Morrison v. State, 818 So. 2d 432,
451 (Fla. 2002)). Accordingly, the trial court correctly concluded that the
defendant’s trial counsel was not deficient, and the defendant failed to prove any
prejudice from, the failure to move for a judgment of acquittal on this basis.
The defendant next claims that his attorney rendered ineffective assistance by
objecting to the State’s request to instruct the jury on the lesser offense of attempted
lewd or lascivious conduct. During the charge conference, the State initially
requested jury instructions on the lesser charges of battery and attempted lewd or
lascivious conduct. Defense counsel objected to the instruction on attempted lewd
or lascivious conduct. The trial court found that if the jury believed the victim’s
testimony, the crime was completed so no instruction on this category two lesser
included offense was warranted. The victim’s testimony was that the Defendant
grabbed her arm, put her on his lap, and kissed her neck, which would establish lewd
or lascivious conduct, not attempted lewd or lascivious conduct. The defendant’s
testimony was that nothing occurred between him and the victim, and that the victim
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was lying. As such, the jury could either have found that the defendant committed
a completed act, or that he did not, but there was no evidence to support an attempt
instruction. See Douglas v. State, 239 So. 3d 157, 162 (Fla. 3d DCA 2018) (citing
Clark v. State, 43 So. 3d 814, 817 n.5 (Fla. 1st DCA 2010) (“Instructions on attempt
are not to be given where ‘the only evidence proves a completed offense.’”). It is
axiomatic that trial counsel cannot be deemed ineffective for failing to raise a
meritless argument. See Moore v. State, 225 So. 3d 307, 308-09 (Fla. 3d DCA 2017)
(citing Teffeteller v. Dugger, 734 So. 2d 1009, 1023 (Fla. 1999)). Therefore, the
defense attorney’s objection to the inclusion of an attempt instruction was proper.
Accordingly, the trial court’s order denying the defendant’s motion for
postconviction relief is affirmed.
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