Firkey v. StateFirkey v. State
Found guilty of sexual battery on a child under the age of eleven and of engaging in a sexual performance (he videotaped the encounter), the defendant appeals claiming no penetration and no performance in front of an audience. We affirm.
The victim‘s testimony clearly established a sexual battery predicated on a union with the defendant‘s penis. However, the charge sub judice was sexual battery with a finger, under
A. Around my vagina and around my privates and then he would go in them but he wouldn‘t get his finger inside my vagina, he just went right in the crack and just rubbed on it.
Q. Do you know whether or not he put his finger in your vagina?
A. No.
We have read and reread this excerpt from the victim‘s testimony, which was never further enlarged upon in cross-examination or on redirect and we cannot conclude that it unequivocally establishes lack of penetration, such as would support a judgment of acquittal as a matter of law.
The jury heard the evidence and viewed the tape. It found the defendant guilty as charged, a result which we leave undisturbed, deeming it to involve questions of fact. See Tibbs v. State, 397 So.2d 1120 (Fla. 1981), aff‘d, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Stone v. State, 547 So.2d 657 (Fla. 2d DCA 1989).
The defendant also urges us to reverse his conviction for having a child engage in a sexual performance in contravention of
(b) “Performance” means any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.
Conceding that the quoted statutory language might be ambiguous, we choose to interpret it to mean that the making of such a motion picture is in and of itself sufficient when any of the participants is unaware of what is going on. Obviously, the recording is made with the intention of being replayed; otherwise, the taping has no purpose. Whoever witnesses the replay constitutes an audience. See State v. George, 717 S.W.2d 857 (Mo. App. 1986). The natural mother constituted an audience when she accidently played the tape and viewed the performance which led her to call the police. It is obvious that the child, albeit unwittingly, was induced to become a participant in a sexual performance and we are confident that the legislature did not intend that the creator of such a motion picture, complete with sound, should escape prosecution because he had not, as yet, had time to exhibit his vile handiwork.
Finally, the state concedes that the defendant is entitled to a guidelines scoresheet for his non-capital convictions. See Disinger v. State, 526 So.2d 213 (Fla. 5th DCA 1988). We, therefore, remand for resentencing.
We find no other reversible error.
AFFIRMED EXCEPT AS OTHERWISE DIRECTED.
ANSTEAD and GARRETT, JJ., concur.
ON REHEARING
GARRETT, Judge.
We grant appellant‘s motion for rehearing, and amend our previous opinion, as to the charge of sexual battery on a child under the age of eleven. We deny appellant‘s motion for rehearing as to the previously affirmed convictions for unnatural and lascivious acts and engaging in a sexual performance.
Appellant was convicted of Count II of the information which charged a capital sexual battery1 by “the penetration of the vaginal folds of the (victim) by the fingers of (appellant).”
We doubt whether the information as worded charged any recognized sexual battery crime. “Vaginal folds” is not the medical term. We assume the state meant the labia majora or the labia minora2 when wording the information. Neither the labia
As Judge Letts wrote in our original July 19, 1989 opinion:
The [nine year old] victim‘s testimony clearly established a sexual battery predicated on a union with the defendant‘s penis... . The defendant concedes finger contact with the vaginal folds. However, as proof that there was no actual penetration, the defense cites the testimony of the victim herself:
A. Around my vagina and around my privates and then he would go in them but he wouldn‘t get his finger inside my vagina, he just went right in the crack and just rubbed on it.
Q. Do you know whether or not he put his finger in your vagina?
A. No.
(emphasis added).
However, proof of mere “union with” the victim‘s vagina was insufficient because the state alleged penetration with fingers.
As distinguished from the “union” of the defendant‘s sex organ with the victim‘s vagina or the “penetration” of the victim‘s vagina “by” the defendant‘s hand, finger, or any other object the mere “union” of the defendant‘s hand or finger “with” the victim‘s vagina does not violate the statute, although that act may violate other statutes... .
Before October 1, 1974, the crime of rape occurred when a person ravished or carnally knew a child under the age of eleven. Although the statute required penetration, the word “vagina” was not mentioned.
Effective October 1, 1974, the crimes against nature4 and rape statutes were repealed to create the crime of sexual battery. The legislature kept the “private parts” concept of rape by specifying that sexual battery occurs upon “vaginal penetration by, or a union with, the sexual organ of another.” The phrase “union with” continues the concept that any penetration by a male‘s private organ of any part of a female‘s private parts also constitutes a crime.5 “Union with” is an alternative to vaginal penetration. Dorch v. State, 458 So.2d 357 (Fla. 1st DCA 1984). The legislature did not include “union with” as a way to commit sexual battery when “any other object” than a sexual organ causes penetration. The legislature also specified that the vagina must be penetrated when the sexual battery involves “any other object” than a sexual organ of another. We note that the repeal of the crime of lewd, lascivious, indecent assault or act upon a child,
The state has the burden to prove each and every essential element of a crime beyond a reasonable doubt. Penetration of the vagina is an essential element of the crime of sexual battery with an object other than a sexual organ. No expert testified as to a vaginal examination of the victim. We have reread the victim‘s testimony and viewed appellant‘s homemade video of the sexual episode a second time. We conclude the evidence is inconclusive as to whether appellant‘s fingers penetrated the victim‘s vagina. The evidence was insufficient as a matter of law to convict appellant of sexual battery. See Tibbs v. State, 397 So.2d 1120 (Fla. 1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The jury had to have guessed that vaginal penetration occurred. A jury cannot convict on evidence susceptible to speculation or conjecture.
However,
Accordingly, we reverse appellant‘s conviction and sentence for sexual battery on a child under the age of eleven and direct the trial court to enter judgment for attempted sexual battery upon a child under the age of eleven. We reaffirm our holding as to appellant‘s convictions for unnatural and lascivious acts7 and engaging in a sexual performance for the reasons stated in our original opinion and we remand for resentencing.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS FOR RESENTENCING.
ANSTEAD, J., concurs in part and dissents in part with opinion.
LETTS, J., dissents in part with opinion.
ANSTEAD, Judge, concurring in part and dissenting in part.
I concur in Judge Garrett‘s opinion with the limited exception that I believe the conviction for attempted sexual battery requires us to vacate the conviction for unnatural and lascivious act based upon the same underlying conduct.
LETTS, Judge, dissenting in part:
I would also affirm the defendant‘s conviction for sexual battery.