State v. RobinsonState v. Robinson
Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellee.
Before GODERICH and SORONDO, JJ., and NESBITT, Senior Judge.
NESBITT, Senior Judge.
After the comрletion of defendant‘s trial for sexual battery on a victim under twelve years of age, see
The victim, eight-year-old S.S., testified that the dеfendant was babysitting her and her siblings. S.S. was wearing a T Shirt and underpants and lying on her mother‘s bed when the incident occurred. The defendant laid down on the bed bеhind her. At some point, as she began to fall asleep, the defendant moved her panties aside and stuck his finger inside her “private part“. S.S. said that she knew it was his finger because it was long, hard and it hurt. She also said that he did not touch her anywhere else. She said that she tried to close her feеt, but he opened them with his elbow.
Two days later, S.S. told her aunt, Daisy Anderson, about the incident. Anderson told S.S.‘s mother and police. According to Andersоn, S.S. told her: “Darrell [the defendant] put his finger inside of me.” Dr. Simmons, director of the Rape Treatment Center at Jackson Memorial hospital testifiеd that she conducted an interview and examination of the girl. During the pelvic examination, Dr. Simmons found that S.S. had redness peri-urethral (around the urethrа) as well as outside and under the labia. The doctor found a tear of the hymen and concluded that the tear was evidence of penеtration. S.S. relayed the same story to the doctor and the police. The jury then watched a videotape of an interview of the girl. Under questioning, the child also testified that while taking baths she would sometimes touch herself.
The defendant testified that on the day of the incident, he was watching tеlevision and the children came into his room and watched along with him. While he was on the phone, the children fell asleep on the bed. He thеn noticed that S.S.‘s hand was underneath her garment. As he got up, he snatched her hand from underneath her body. He then got up, went to the bathroom, and wаshed his hands. When he returned to the room, S.S. had gone to her own room. He testified that he never told S.S.‘s mother because she would be embarrassed and because he was preoccupied with personal matters. On cross examination, he testified that he assumed S.S. was touching herself because he witnessed her younger sister touching herself at another time. He maintained that although he yanked or grabbed her hand, he never touched her vagina. He also testified that he had not relayed his version of the events to anyone prior to his trial. After his arrest he told the poliсe only that he was playing with the children and it “got kind of rough.”
Florida Rule of Criminal Procedure 3.510, provides:
Determination of Attempts and Lesser Included Offenses
On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense; or
(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.
(Emphasis added.)
The court in Henry v. State, 445 So. 2d 707 (Fla. 4th DCA 1984), affirmed an armed
Thus it appears the rule [
Fla. R. Crim. P. 3.510(a) as amended] prohibits an attempt instruction on a criminal episode that has reached fruition.... We hоld, therefore, that Rule 3.510 controls the question at hand and precludes instructions on attempts where the only evidence proves a cоmpleted offense.
Clearly, an instruction on attempt should not be given where there is no evidence of an attempt. Defendant totally denied committing any offense. The victim‘s testimony and the physical evidence showed digital penetration. The evidence established either a completed crime or no crime at all. Thus, because there was no evidence of attempted sexual battery, a jury instruction for attempt was unwarranted. Second, as our Supreme Court held in State v. Hightower, 509 So. 2d 1078, 1079 (Fla. 1987), the crime of lewd and lascivious conduct is not a necessarily included offensе of the crime of sexual battery. Therefore the failure to instruct on this charge could not form the basis for the order granting new trial. We do however agree with the defendant that the order under review should be affirmed based on the trial court‘s additional conclusion that the jury‘s verdict was against the weight of the evidence. The unique power of the trial judge in making such a life altering determination is clearly established by
The Florida Supreme Court has said that this rule “enables the trial judge to weigh the evidence and to determine the credibility of witnesses so as to act, in effect, as an additional juror.” See Tibbs v. State, 397 So. 2d 1120, 1123 n. 9 (Fla. 1981). As we stated in Gonzalez v. State, 449 So. 2d 882 (Fla. 3d DCA 1984):
Florida Rule of Criminal Procedure 3.600(a)(2) authorizes a trial judge to grant a new trial if it is established that `the verdict is contrary to ... the weight of the evidence.\’ The process of determining whether the verdict is consistent with the weight of the evidence necessarily requires the trial judge to invade the fact-finding arena—to act, in effect, as an additional juror.
Id. at 888 (quoting Tibbs, 397 So. 2d at 1123 n. 9).
Accordingly, finding no error in the judgе‘s decision granting defendant a new trial based upon his conclusion that the verdict was contrary to the weight of the evidence, we affirm the order under review. At the same time, we point out that, on the evidence presented, the trial judge erred when he concluded that he had mistakenly failed to instruct on the other two charges sought.