212 So. 2d 94 | Fla. Dist. Ct. App. | 1968
The appellant was charged with a violation of § 800.04, Fla.Stat. (1967), F.S.A., entitled “Lewd, lascivious or indecent assault or act upon or in the presence of child.” On motion for directed verdict at the conclusion of the State’s case the court reduced the charge to a violation of § 798.-02, Fla.Stat. (1967), F.S.A.
Appellant has presented two1 points on appeal. The first urges that the evidence is insufficient to establish a prima facie case of “open and gross lewdness and lascivious behavior,” as set forth in § 798.02.
Appellant’s second point is directed to the admission in evidence of two magazines found on the front seat of appellant’s car when he was arrested. The trial judge termed them “pretty raw.” We think that error has not been demonstrated. In Williams v. State, Fla.1959, 110 So.2d 654, 662, the Supreme Court of Florida held: “Nonetheless, relevancy is the test. If found to be relevant for any purpose save that of proving bad character or propensity, then it should be admitted.” Possession of the magazines alone did not constitute lewd and lascivious behavior. But we think that possession of the magazines at the time and place the acts complained of occurred was a circumstance relevant to a determination of the guilt or innocence of the appellant.
Affirmed.
. “Lewd and lascivious behavior * * * or if any man or woman, married or unmarried, is guilty of open and gross lewdness and lascivious behavior, they shall be punished by imprisonment in the state prison not exceeding two years, or in the county jail not exceeding one year, or by fine not exceeding three hundred dollars.”