HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/COOPER.ASC

Text File | 1993-01-14 | 15KB | 289 lines

/*  This case is reported in 539 So.2d 508 (Fla. 1 DCA 1989).
Cooper was convicted of sexual battery. The sentencing court
imposed a sentence above that called for in the sentencing
guideline, stating as one reason for the higher than guidelines
sentence was that the defendant was HIV positive. The appeals
court, over dissent, finds that this is a valid reason for a
longer sentence. */

Wilford Cooper, Appellant,

v.

State of Florida, Appellee.

District Court of Appeal of Florida, First District.

February 22, 1989.



THOMPSON, Judge.

Cooper appeals his sentences for sexual battery, solicitation and
aggravated battery which exceed the sentencing guideline
recommendation.  He contends the trial court's reasons for
departing from the recommended guideline sentence are not valid,
clear and convincing reasons. We disagree and affirm.

Cooper was charged by information with two counts of sexual
battery of a child between the ages of 12 and 18 while in a
position of familial or custodial authority, one count of
soliciting a child 12 years of age or older but less than 18
years of age while in a position of familial or custodial
authority to engage in sexual activity, and one count of
aggravated battery.

All counts involved the same victim and were alleged to have
occurred in December 1986.  According to the record, the 17-year-
old victim was bonded out of the Leon County Jail on December 12,
1986 and was released into the custody of Cooper, a family friend
who was dating the victim's cousin at the time.  Cooper began to
make sexual advances toward the victim several days after the
victim moved into his home. On December 12, 1986 the victim awoke
at approximately 2:00 a.m. to discover Cooper sexually molesting
him.  When the victim protested, Cooper told the victim he could
either have sex with him or that he would return the victim to
jail. The victim went to stay with his grandmother that evening
and returned late that night. For the next few days he was not
bothered by Cooper. However, on December 26, 1986 the victim was
again sexually molested by Cooper as he was sleeping, and was
again told that he could either cooperate or return to jail. The
victim attempted to flee from Cooper by running out of the house
and scrambling across a chain link fence.  In the process, Cooper
held on to him, causing him to cut himself on the fence.  Cooper
then hit the victim in the back with a piece of metal.  The
victim eventually escaped and ran to a neighbor's house. The
neighbor drove the victim to his aunt's house, who in turn took
him to the hospital. Cooper was arrested several days later.

On July 28, 1987, Cooper was tried by a jury and found guilty of
all four counts of the information.  Four days prior to trial,
the results of a test revealed that Cooper tested positive for
the AIDS virus.  The jury was not informed of this fact.

On August 8, 1987, the trial court sentenced Cooper to concurrent
terms of 30 years on each of the two sexual battery counts, and 5
years on the solicitation count, followed by a consecutive 10
year term of probation on the aggravated battery count.  In
departing from the recommended guideline sentence of 12 to 17
years, the trial court gave the following three reasons for
departure:

1.   The offenses of Sexual Battery and Solicitation of Sexual
Activity for which the defendant was sentenced were committed in
a calculated manner without pretense of moral or legal
justification. Casteel v. State, 498 So.2d 1249 (Fla. 1986).

2.   The offenses of Sexual Battery and Solicitation of Sexual
Activity for which the Defendant was sentenced were committed
pursuant to a premeditated design, perpetuating a fraud on this
Court in obtaining custody of the victim, and violating this
court's confidence reposed in the defendant.  These offenses were
committed pursuant to a plan whereby the defendant gained
physical custody of the victim through legal processes of bail,
which required the victim to reside with the defendant.  The
defendant utilized the threat of bond revocation and detention in
the county jail as leverage to coerce his captive prey to engage
in homosexual acts. When, and if, the victim refused to engage in
such acts the defendant could, and did, sexually attack his prey
while asleep in the defendant's home.  Such premeditated design,
carried out by sexual and aggravated battery, utilizing the force
of law to accomplish his perverted goals, clearly justifies
departure from a guideline sentence.

3.   The offenses of sexual battery were committed by the
defendant with total disregard of the high likelihood that the
defendant had been exposed to the aids virus and that by sexual
contact with his victim there was a strong likelihood that the
victim would be subjected to this dreaded disease.   Such
reckless disregard for the physical illness and emotional trauma
which would likely result to the victim, confirmed by the fact
that the defendant has now been tested positive for aids, is a
clear and convincing reason for departures from a guideline
sentence.

[1, 2]   The first reason given by the court is a clear and
convincing valid reason for departure.  Casteel v. State, 498
So.2d 1249 (Fla.1986).  The first reason given is the same
identical reason given and approved by the supreme court in
Casteel It is amply supported in the record and there is no basis
for saying it is invalid in part or in any respect.  Cooper
admits that the first reason is a valid reason for departure on
the two sexual battery counts but contends that under Casteel
premeditation or calculation is inherent in the offense of
solicitation of sexual activity and, therefore, the fact that the
offense was committed in a calculated manner is not a valid
reason to depart as to the sentence on the third offense of
solicitation.  Cooper further contends that Casteel also holds
that it is improper to utilize, as a reason to depart, a factor
that is inherent in any of the offenses for which sentences are
imposed even though the same factor is not inherent in all the
offenses for which sentence is imposed.  We disagree with this
interpretation of Casteel.  In Casteel both the sexual battery
with use of a deadly weapon and the first degree burglary charges
grew out of the same acts occurring in a single episode.  The
same knife was used in the sexual battery offense and it was the
"dangerous weapon" in the first degree burglary offense. Casteel
held that to allow the use of an essential element (dangerous
weapon) of the primary crime (sexual battery) as an aggravating
factor in a subordinate or other offense (the first degree
burglary) amounts to allowing the trial judge to depart from the
guidelines based upon a factor which has already been weighed in
arriving at a presumptive sentence and would be counting such
factor twice, contrary to the intent and spirit of the
guidelines.  In the instant case each sexual battery offense and
the solicitation offense was separate and distinct offenses
committed in separate episodes at separate times.  The first
sexual battery offense was committed on December 22, the second
sexual battery offense was committed on December 26, and the
solicitation offense was another separate episode. The sexual
battery offenses were not subordinate or other offenses growing
out of the same episode as the solicitation offense, and com
mission of the offense in a calculated or premeditated manner is
not an element of the primary offenses of sexual battery.
Therefore the commission of the sexual battery offenses in a
calculated and premeditated manner is a valid clear and con
vincing reason for departure.  The 5 year concurrent solicitation
sentence, if error, is harmless error because it would expire
long before the valid 30 year concurrent sexual battery
sentences.

[3] Cooper contends the second reason for departure is invalid in
that its grounds are also inherent in the two sexual battery
counts and the solicitation count as a necessary element because
of all three of those offenses require that the defendant be in a
"position of familial or custodial authority" to a victim. The
second reason for departure is not merely that Cooper was in a
position of familial or custodial authority. If it was, we would
agree with Cooper's contention that it was an invalid reason for
departure.

The second reason relates to the manner in which Cooper procured
custody of the victim pursuant to a premeditated design,
perpetrating a fraud on the court in obtaining custody, and
violating the court's confidence. The offenses were committed
pursuant to a plan whereby Cooper gained physical custody of the
victim through the legal process of bail which required the
victim to reside with him. He also utilized the threat of bond
revocation and detention in the county jail in an attempt to
coerce his victim to engage in homosexual acts. When the victim
refused to engage in such acts Cooper sexually attacked the
victim while he was asleep in Cooper's home. We agree with the
trial judge that such premeditated design carried out by sexual
and aggravated battery, utilizing the force of law to accomplish
his perverted goals, is a clear and convincing valid reason
justifying departure from  a guidelines  sentence. This reason is
not inherent in the sexual battery offenses or the solicitation
offense.

[4] We also agree with the trial court that the third reason for
departure is a valid, clear and convincing reason.  Be cause of
his life-style, Cooper knew or should have known that he had been
exposed to the AIDS virus and that by sexual battery upon his
victim there was a strong likelihood that the victim would be
exposed to AIDS. Prior to sentencing Cooper tested positive for
AIDS and the sexual assaults may result in the victim contracting
the deadly disease.

Even if any of the reasons given for departure are not valid, we
think the state has shown beyond a reasonable doubt that absent
the invalid reason or reasons, the departure sentence imposed by
the trial court would have been the same.  Albritton v. State,
476 So.2d 158 (Fla.1985).

AFFIRMED.



BOOTH, J., concurs.

SHIVERS, J., dissents with written opinion.



SHIVERS, Judge, dissenting.



I respectfully dissent and would remand for resentencing.  As the
majority writes, the trial court gave three reasons for
departure.  It appears to me that two of these reasons are
invalid and a substantial portion of the third reason is invalid.
The State has not shown beyond a reasonable doubt that the
absence of the invalid reasons would not have affected the
departure sentence.

The trial court's first reason for departure is the calculated
manner in which the sexual batteries and solicitation were com
mitted.  I agree that premeditation or calculation is not an
inherent component of sexual battery and may support a departure
sentence.  See Lerma v. State, 497 So.2d 736, 739 (Fla.1986).
However, the remaining portion of the first reason for departure,
the calculated manner in which the solicitation was committed,
is, in my opinion, invalid. In my judgment, premeditation or
calculation is an inherent component of solicitation and may not
support a departure sentence.  Black's Law Dictionary, Fifth
Edition, in defining solicitation, states:

For the crime of solicitation to be completed, it is only
necessary that the actor, with intent that another person commit
a crime, has enticed, advised, incited, ordered or otherwise
encouraged that person to commit a crime.

The second reason for departure, the pre meditated manner in
which the defendant used the force of law to coerce the 17-year-
old victim, is an invalid reason. The trial court states that the
appellant committed the offenses of sexual battery and
solicitation pursuant to a plan whereby he gained physical
custody of the victim through the legal process of bail, then uti
lized the threat of bond revocation and jail to coerce the victim
into engaging in homosexual acts; that in so doing, the appellant
perpetrated a fraud on the court and violated the confidence the
court placed in him. It appears that the sexual battery and solic
itation counts were all brought pursuant to section 794.041,
Florida Statutes, which contains as a specific element, the
requirement that the offense be committed by "a person who stands
in a position of familial or custodial authority of a child"
between the ages of 12 and 18. Since the custodial authority
obtained through the bond was an  inherent  component  of  the
crime charged, the trial court erred in using it as a basis for
departure.  See Casteel v. State, 498 So.2d 1249 (Fla.1986).

The trial court's third reason for departure is invalid. It reads
in full, as follows:

The offenses of sexual battery were committed by the defendant
with total disregard of the high likelihood that the defendant
had been exposed to the aids virus and that by sexual contact
with his victim there was a strong likelihood that the victim
would be subjected to this dreaded disease.  Such reckless dis
regard for the physical illness and emotional trauma which would
likely result to his victim, confirmed by the fact that the
defendant has now been tested positive for aids, is a clear and
convincing reason for departure from a guideline sentence.

At the sentencing hearing, the trial court commented that "this
defendant, having been an admitted homosexual for years, knew or
should have known the likelihood of his having AIDS as a result
of these homosexual contacts . . ."  The only evidence in the
record regarding appellant's knowledge of his physical condition
is his statement to the court, made prior to jury selection on
7/28/87, that he was told "on Friday" that he had tested positive
for AIDS.  There is no evidence in the record to support the
trial court's comment at sentencing that appellant "knew or
should have known" that he had AIDS based on his having been a
homosexual for years.

The defendant's crimes were committed prior to the effective date
of section 921.-001(5), Fla.Stat. (1987).  Since over two of the
three reasons given for departing from the recommended guidelines
are invalid, I would reverse and remand for resentencing in
accordance with Albritton v. State, 476 So.2d 158 (Fla.1985). See
State v. McGriff 537 So.2d 107 (Fla.1989).