Ngoc C. Thach v. State of Florida

– Summary by Lauren Reed

On June 30 2022, the Supreme Court of Florida considered whether midtrial amendments to a charging document that alter the elements of a criminal offense are per se prejudicial. The Supreme Court held that they are not and that any midtrial amendments should be assessed on a case-by-case basis, considering the totality of the circumstances.

This case arises out of the following set of facts. Ngac C. Thach was charged with multiple crimes, including four counts of sexual battery against his three stepdaughters. Each stepdaughter testified at trial but did not give any testimony establishing one of the required elements of a sexual battery claim. Thach argued that based on this missing element, he was entitled to a judgment of acquittal. The State moved to amend the four counts from sexual battery to lewd or lascivious molestation. Thach’s counsel objected, claiming it was prejudicial to allow this amendment. However, the court allowed the amendment and the jury found Thach guilty on all four of the amended counts.

The First District Court of Appeals agreed 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. They affirmed the judgment of the lower court, noting that based on the facts of this case, the amendment did not prejudice Thach because
here, the lewd or lascivious molestation charges would have been proven if the sexual battery charges were proven. Thach appealed again to the Supreme Court of Florida.

The Supreme Court affirmed that whether mid-trial amendments were permissible depends on whether it would be prejudicial to the accused. They found that case law has never recognized a per se prejudice rule, despite the Fourth District Court of Appeal’s decisions in other cases. The court affirmed that no single factor will always be dispositive of the prejudice analysis — trial courts should consider the totality of the circumstances at the time of the amendment. Specifically discussing this case, the court notes that the amended charges were focused on the same victims and the same alleged circumstances of the victims, so there was ample opportunity for cross-examination prior to the amendments to refute these allegations. Therefore, the court found that this amendment was not prejudicial and upheld the ruling of the lower courts.

Justice Labarga dissented. He noted that the amendments came after the evidentiary portion of the trial ended, meaning Thach did not have the opportunity to cross-examine the victims about the amended charges. He states that the that the lewd or lascivious molestation charge was not a necessary lesser included offense to sexual battery and therefore an “acquittal
down” to lewd and lascivious molestation could not have been granted. He also claims that there has been a long-established per se prejudicial rule (based on rulings from the Fourth District Court of Appeal) and that the new standard of analyzing the totality of the circumstances surrounding a midtrial amendment makes it incredibly difficult for a defendant to prove prejudice. He expressed that mid-trial amendments do not inform the accused of their charges before trial begins, violating the constitutional right of due process of law.