FRANCISCO HENRY v. STATE OF FLORIDA
229 So. 3d 390
Fla. Dist. Ct. App.2017Background
- Four teenagers (three males, one female) were forced at gunpoint in an abandoned house to surrender belongings and perform multiple nonconsensual sexual "scenes."
- A co-defendant produced a gun, penetrated the female victim with a pencil, and the co-defendant and Henry (appellant) alternated holding the gun while compelling eight coerced sex scenes involving different pairings of the victims.
- Each sex scene involved two victims; the State charged one sexual-battery count for each victim per scene (16 counts) plus one count for the pencil penetration (total 17 counts). Henry was convicted of 17 counts of sexual battery, plus robbery and false imprisonment counts (other issues affirmed without discussion).
- Henry moved for judgment of acquittal, arguing insufficient evidence he ordered, threatened, or committed the sex acts or had the requisite intent to be guilty as a principal/aidor abettor.
- The trial court denied the motion; Henry appealed asserting (1) insufficiency of evidence as to aiding/abetting and intent and (2) that charging two sexual-battery counts per scene (one per victim) was improper and the evidence only supported nine counts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Henry) | Held |
|---|---|---|---|
| Sufficiency of evidence to deny judgment of acquittal (aiding/abetting) | Victims identified Henry as active participant; he laughed, took turns holding gun, helped clean up; acted in furtherance of common design | Henry claimed no evidence he ordered or performed sex acts or threatened with gun; likened to Lovette where defendant was not present for sexual battery | Affirmed: viewed in State's favor Henry was more than present — participated and encouraged; liable as principal under §777.011 and case law |
| Number of sexual-battery counts per scene | Statute and precedent allow distinct offenses for each nonconsenting victim in a forced "union" or penetration; each victim's involuntary sexual intrusion is a separate sexual battery | Henry argued charging two counts per scene was improper and excessive; sought reversal to reduce counts to nine | Affirmed: statute covers oral/anal/vaginal penetration or union against each nonconsenting person; each victim in each scene can support a separate life-felony count |
Key Cases Cited
- Pagan v. State, 830 So.2d 792 (standard for judging motions for judgment of acquittal)
- Charles v. State, 945 So.2d 579 (principal liability when defendant had conscious intent and encouraged or assisted others)
- Lovette v. State, 636 So.2d 1304 (distinguished — defendant not present for sexual battery in that case)
- Graham v. State, 207 So.3d 135 (charging multiple counts for distinct penetrations does not necessarily violate double jeopardy)
- Aiken v. State, 390 So.2d 1186 (Chapter 794 construed to protect sexual privacy; interpret statutory scope)