Ngoc C. Thach v. State of Florida

Supreme Court of Florida
____________

No. SC20-1656
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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.

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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

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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

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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

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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).

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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.

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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

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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.

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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)

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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).

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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

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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.

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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

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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.

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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

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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

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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

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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

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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).

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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.

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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

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