PATRICK KALINOSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The evidence was sufficient to prove the lewd act was committed in the presence of the child.
Appellant was convicted of a lewd act in the presence of a child under 14. The child was in a car with her parents, and appellant was standing nearby.…
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[*657] JOANOS, Judge.
Appellant was charged with and convicted of violating Section 800.04, Florida Statutes, by knowingly committing a lewd or lascivious act in the presence of a child under the age of 14 years, without the intent to commit involuntary sexual battery. Among the questions presented on appeal is whether the evidence was sufficient to prove that the particular act was committed in the presence of the child, who was four years and ten months old at the time of the incident. No issues are raised with regard to the nature of the act or the element of appellant’s knowledge.
When the incident allegedly occurred the child and her parents were inside their automobile. Appellant was standing several feet away. The child’s mother testified that as appellant was committing the act the child was standing partially in the front seat of the automobile and leaning over looking out the window, because she wanted to see what was going on and who was yelling. The child then grabbed her mother’s shoulder “as if she wanted protection.” There was sufficient evidence from which the jury could conclude that the act was committed in the presence of a child under 14 years of age.
Likewise, no error has been shown on the other issues raised on appeal. The judgment and sentence are AFFIRMED.
LARRY G. SMITH and THOMPSON, JJ., concur.
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State v. Werner, 609 So. 2d 585 (Fla. 1992)…ever, as the district court noted below, testimony of a third party as to the child’s emotional state or reaction to the incident can constitute sufficient evidence of sensory awareness. Werner, 590 So. 2d at 435. For example, in Kalinoski v. State, 414 So. 2d 656, 657 (Fla. 1st DCA 1982), the First District Court of Appeal concluded that there was sufficient evidence to prove that a lewd or lascivious act had been committed in the presence of a four-year-old child based upon the child’s effort to view the de…
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Lewis v. State, 570 So. 2d 412 (Fla. 1st DCA 1990)…e particulars of the victim’s testimony concerning the specific acts charged. Suffice it to say that this testimony, which the jury found credible, was sufficient to support appellant’s con.viction as to each offense charged. See Kalinoski v. State, 414 So. 2d 656 (Fla. 1st DCA 1982). In summary, cross-examination regarding a victim’s prior sexual activity with a third party may not be precluded if doing so would interfere with a defendant’s confrontation right, or otherwise operate to deny a full and fair d…
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Werner v. State, 590 So. 2d 431 (Fla. 4th DCA 1991)…his daughter did not see him masturbate. The state acknowledged that its proof as to the second element was “circumstantial.” Obviously, proof that a child “saw or sensed” a lewd or lascivious act will vary from case to case. In Kalinoski v. State, 414 So. 2d 656 (Fla. 1st DCA 1982), a child four years and ten months old sat in her parent’s car a few feet from where the defendant stood committing a lewd or lascivious act. The First District concluded that the evidence was sufficient to prove that the act had…