Jasper Obryan Oliver v. State of Florida

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D2024-0814
LT Case No. 2022-CF-001526-A
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JASPER OBRYAN OLIVER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for St. Johns County.
R. Lee Smith, Judge.
Matthew J. Metz, Public Defender, and Ryan M. Belanger,
Assistant Public Defender, Daytona Beach, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Deborah
Chance, Assistant Attorney General, Daytona Beach, for
Appellee.
April 2, 2026
HARRIS, J.
Appellant, Jasper Obryan Oliver, timely appeals his
judgment and sentence entered against him after a jury trial. He
argues his convictions for sexual battery on a minor by a person in
familial or custodial authority and unlawful sexual activity with a
minor (counts one through four) violate double jeopardy. Finding

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that Oliver’s convictions do not violate the prohibition against
double jeopardy, we affirm.
In December 2023, the State charged Jasper Obryan Oliver
with two counts of sexual battery on a minor by a person in familial
or custodial authority (counts one and two) and two counts of
unlawful sexual activity with a minor (counts three and four).1
Counts one and three were based on Oliver’s penis penetrating
and/or having union with the victim’s anus, and counts two and
four were based on Oliver’s penis having union with the victim’s
vagina.
At trial, the victim, K.K., who was Oliver’s stepdaughter,
testified that she was in her room one night in March 2022,
pretending to sleep, and that Oliver climbed into her bed with her,
under the covers, and pulled her close to him. While both were
clothed, Oliver began rubbing his testicles against K.K.’s bottom.
K.K. tried moving, but Oliver held her so she could not move.
Oliver then pulled down K.K.’s shorts and underwear and rubbed
his penis against her vagina. He then pushed his penis into K.K.’s
anus while breathing heavily. K.K. then pretended to wake up and
Oliver pulled his penis out of her. K.K. asked Oliver why her pants
were down, and Oliver responded he did not know. K.K. went to
the bathroom until Oliver left her room.
At the conclusion of the trial, the jury found Oliver guilty as
charged on all counts. As to counts one and three, the jury found
that the State had proven there was sexual contact but not
penetration. The court adjudicated Oliver guilty and imposed
concurrent sentences of thirty years on counts one and two,
followed by lifetime sex offender probation, and fifteen years on
counts three and four. This appeal followed.
Oliver argues that counts one through four violate double
jeopardy because they require identical elements of proof. He
argues that the “sexual activity” that has to be proved for counts
1 Four additional related charges were also filed against
Oliver. Three were subsequently disposed of by the trial court and
the fourth is not relevant to this appeal.

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three and four is the same as “sexual battery” in counts one and
two, and therefore, counts three and four are completely subsumed
in the elements of counts one and two. To rephrase the argument,
he asserts that someone in a position of familial authority that is
guilty of counts one and two will always be guilty of counts three
and four, unlawful sexual activity with a minor. We disagree with
Oliver’s argument that double jeopardy precludes separate
sentences on each of these counts.
The Constitution prohibits subjecting a person to multiple
convictions and punishments for the same criminal offense. See
Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). However, “there is
no constitutional prohibition against multiple punishments for
different offenses arising out of the same criminal transaction as
long as the Legislature intends to authorize separate
punishments.” Id. Absent a clear statement of legislative intent to
authorize separate punishments for two crimes, courts employ the
Blockburger2 test to determine whether separate offenses exist.
See id. at 1070. The Blockburger test is codified in section 775.021,
Florida Statutes, which provides:
(4)(a) Whoever, in the course of one criminal
transaction or episode, commits an act or acts
which constitute one or more separate criminal
offenses, upon conviction and adjudication of
guilt, shall be sentenced separately for each
criminal offense; and the sentencing judge may
order the sentences to be served concurrently or
consecutively. For the purposes of this
subsection, offenses are separate if each offense
requires proof of an element that the other does
not, without regard to the accusatory pleading
or the proof adduced at trial.
(b) The intent of the Legislature is to convict and
sentence for each criminal offense committed in
the course of one criminal episode or transaction
and not to allow the principle of lenity as set
2 Blockburger v. United States, 284 U.S. 299 (1932).

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forth in subsection (1) to determine legislative
intent. Exceptions to this rule of construction
are:
1. Offenses which require identical elements of
proof.
2. Offenses which are degrees of the same
offense as provided by statute.
3. Offenses which are lesser offenses the
statutory elements of which are subsumed by
the greater offense.
§ 775.021(4), Fla. Stat. (2024). Thus, even if the offenses are
separate, dual convictions are barred if the offenses meet the
criteria in one of the three exceptions in subsection (4)(b). See State
v. Maisonet-Maldonado, 308 So. 3d 63, 67 (Fla. 2020); Roughton v.
State, 185 So. 3d 1207, 1210 (Fla. 2016).
In Jackson v. State, cited by the parties in the trial court, the
Fourth District rejected the double jeopardy claim as to convictions
for sexual battery and unlawful sexual activity with a minor
because they involve different elements: sexual battery requires
lack of consent and the use or threat of use of a weapon, and
unlawful sexual activity with a minor does not involve any issue of
consent or threats or force. 868 So. 2d 1290, 1291 (Fla. 4th DCA
2004). The First District in Smith v. State, however, reversed the
conviction and sentence where the State agreed and conceded that
dual convictions for sexual battery and unlawful sexual activity
with certain minors violated double jeopardy. 281 So. 3d 602, 603
(Fla. 1st DCA 2019). The court did not provide further analysis on
the matter.
Here, the charges at issue arose from the same criminal
episode and involve the same victim. In counts one and two, Oliver
was charged with sexual battery on a minor between twelve to
eighteen years of age by a person in a familial authority under
section 794.011(8)(b), Florida Statutes, which provides:
(8) Without regard to the willingness or consent
of the victim, which is not a defense to

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prosecution under this subsection, a person who
is in a position of familial or custodial authority
to a person less than 18 years of age and who:
. . . .
(b) Engages in any act with that person while
the person is 12 years of age or older but younger
than 18 years of age which constitutes sexual
battery commits a felony of the first degree,
punishable by a term of years not exceeding life
or as provided in s. 775.082, s. 775.083, or s.
775.084.
§ 794.011(8)(b), Fla. Stat. (2024). “‘Sexual battery’ means oral,
anal, or female genital penetration by, or union with, the sexual
organ of another or the anal or female genital penetration of
another by any other object[.]” Id. § 794.011(1)(j). The statute
specifies that consent by the victim is not a defense. Id. §
794.011(8).
In counts three and four, Oliver was charged with unlawful
sexual activity with a minor under section 794.05, which provides:
(1) A person 24 years of age or older who engages
in sexual activity with a person 16 or 17 years of
age commits a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
§ 794.05(1), Fla. Stat. (2024). “‘Sexual activity’ means oral, anal, or
female genital penetration by, or union with, the sexual organ of
another or the anal or female genital penetration of another by any
other object[.]” Id. § 794.05(2)(b). The statute specifies that the
victim’s prior sexual conduct is not relevant. Id. § 794.05(4).
There is no specific statement of legislative intent authorizing
separate punishments for the two crimes, and thus the appropriate
inquiry is whether separate punishments for the crimes violate the
Blockburger test. The elements of counts one and two are
summarized as:

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1. The defendant engaged in any act that
constituted sexual battery upon the victim (the
sexual organ of defendant penetrated or had
union with the anus or female genitals of
victim).
2. At the time, the victim was 12 years of age or
older but younger than 18 years of age.
3. At the time, the defendant was in a position of
familial or custodial authority to the victim (a
recognizable bond of trust or someone who is in
custody or control of another).
The elements of counts three and four are summarized as:
1. The defendant engaged in sexual activity with
the victim (the sexual organ of defendant
penetrated or had union with the anus or female
genitals of victim).
2. At the time, the defendant was 24 years of age
or older.
3. At the time, the victim was sixteen or
seventeen years of age.
Unlike in Jackson, sexual battery as defined in the statute
pertaining to counts one and two does not require threat of force
or lack of consent. Rather, the definitions for “sexual battery” and
“sexual activity” are the same for the particular offenses at issue.
Oliver argues that the elements of the offenses charged in
counts three and four are subsumed by the elements in counts one
and two, as one who qualifies for the offense of sexual battery on a
minor between twelve to eighteen years of age by a person in a
familial authority always qualifies for unlawful sexual activity
with a minor. However, although conduct constituting the charges
in counts one and two may also constitute the conduct charged in
counts three and four, this is not necessarily the case, and the
elements of these crimes are distinct. See Roughton, 185 So. 3d at
1210 (“Although the conduct constituting capital sexual battery

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will as a practical matter ordinarily—if not always—also
constitute lewd or lascivious molestation, the formal elements of
these two crimes are quite distinct.”). Each offense contains an
element that the other does not. Counts one and two require the
offender to be in a position of familial or custodial authority while
counts three and four have no such requirement. Counts three and
four require the offender to be twenty-four or older, while the
charges in counts one and two do not contain an age requirement
of the offender. Counts three and four also require the victim to be
sixteen or seventeen, while counts one and two require the victim
to be between ages twelve and eighteen.
Accordingly, although a person convicted of sexual battery on
a minor by a person of familial authority could also be guilty of
unlawful sexual activity with a minor, it is not necessarily the case,
as a person of familial authority aged twenty-three or younger
would not qualify for the crimes charged in counts three and four.
The offender also would not qualify for the crimes in counts three
and four if the victim was between twelve and fifteen. See Byun v.
State, 294 So. 3d 418, 422 (Fla. 2d DCA 2019) (explaining
attempted lewd battery is not subsumed within unlawful travel to
meet minor where unlawful travel required victim to be under
eighteen while attempted lewd battery required victim to be
between twelve and sixteen, thus they are separate offenses).
Therefore, the elements of the offenses charged in counts three and
four are not subsumed within the elements of the offenses charged
in counts one and two. Because each offense requires proof of an
element that the other does not, and because they do not qualify
for an exception provided in section 775.021(4)(b), Oliver’s
separate sentences for counts one through four do not violate the
prohibition against double jeopardy.
AFFIRMED.
LAMBERT and BOATWRIGHT, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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