MANNIE WILFREDO PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Perez appeals his conviction for sexual battery under Florida law, challenging whether the victim was "physically helpless" as required by the statute. The court affirms, holding that the jury properly found the victim was physically helpless to resist after being struck in the face, breaking her nose.
The conviction is affirmed. There was substantial competent evidence to support the jury's finding that the victim was physically helpless to resist. Whether a victim was physically unable to communicate unwillingness is a factual question for the jury to decide.
[1] Whether a victim was physically helpless to resist sexual battery is a question of fact for the jury.
[2] Evidence that a victim was rendered unable to effectively communicate unwillingness due to a severe physical blow can support a finding of physical helplessness.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the victim testified that Perez hit her in the face breaking her nose and causing much bleeding to occur before committing sexual battery upon her person. Therefore, there was evidence from which the jury could find that the severe blow to her face rendered the victim physically unable to effectively communicate her unwillingness to the act.”
Establishes the factual basis for finding the victim was physically helpless
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Join FLexlaw to unlock all legal intelligencePerez was convicted of sexual battery under section 794.011(4)(a). The victim testified that Perez hit her in the face, breaking her nose and causing …
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COWART, Judge.
This is an appeal from a final judgment adjudicating Perez guilty of a sexual battery under section 794.011(4)(a), Florida Statutes. One essential constituent element of this particular statutory offense is that the victim was “physically helpless” 1 when the sexual battery occurred. Perez moved for a judgment of acquittal on the ground that the State failed to prove that the victim was physically helpless. The trial court’s denial of this motion is the point on this appeal.
Some evidence was presented to the jury that the victim did communicate her unwillingness to participate in any act. However, the victim testified that Perez hit her in the face breaking her nose and causing much bleeding to occur before committing sexual battery upon her person. Therefore, there was evidence from which the jury could find that the severe blow to her face rendered the victim physically unable to effectively communicate her unwillingness to the act.
Whether a victim was “physically unable to communicate his unwillingness”2 and thus was “physically helpless to resist”3 are factual questions for the jury. McIlwain v. State, 402 So. 2d 1194 (Fla. 5th DCA 1981), rev. denied, 412 So. 2d 467 (Fla.1982).
The jury found beyond a reasonable doubt that, at the time of her sexual battery, the victim was “physically helpless to resist.” There was substantial competent evidence to support that conclusion. We do not have the authority to re-weigh or re-evaluate the evidence. Tibbs v. State, 397 So. 2d 1120 (Fla.1981), aff'd, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
The judgment of conviction is affirmed.
DAUKSCH and ORFINGER, JJ., concur. .Section 794.011(4)(a) makes it a first degree felony to commit sexual battery upon a person over eleven years of age, without that person's consent “when the victim is physically helpless to resist." Section 794.011(1)(d) defines "physically helpless” to mean "that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act."
. § 794.011(1)(d), Fla.Stat. . § 794.011(4)(a), Fla.Stat.
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Coley v. State, 616 So. 2d 1017 (Fla. 3d DCA 1993)…this court must find that after viewing any conflicting evidence in the light most favorable to the jury’s verdict, there is no substantial, competent evidence to support the verdict in this case. Heiney v. State, 447 So. 2d at 212; Perez v. State, 479 So. 2d 266 (Fla. 5th DCA 1985). This, in turn, requires a conclusion that both the jury and judge behaved unreasonably when Coley was convicted. The majority states that for purposes of the sufficiency of the evidence, their review is confined entirely to the…1 / 3
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State v. Sedia, 614 So. 2d 533 (Fla. 4th DCA 1993)…ly unable to communicate an unwillingness to act” prior to penetration. Whether a victim is physically unable to communicate such unwillingness, and is therefore “physically helpless” to resist, should be resolved by the fact finder. Perez v. State, 479 So. 2d 266, 267 (Fla. 5th DCA1985). In Perez, the court upheld a verdict under this charge where there was evidence that the defendant broke the victim’s nose causing severe bleeding prior to the sexual assault. Therefore, a jury could find that the blow “rend…
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Norman v. State, 555 So. 2d 1316 (Fla. 5th DCA 1990)…or any other reason physically unable to communicate unwillingness to an act. In the instant case, the victim was able to communicate her unwillingness, and did so both before and during the commission of the sexual battery. Compare Perez v. State, 479 So. 2d 266 (Fla. 5th DCA 1985) (although there was some evidence the victim communicated her unwillingness to participate in the act, there was also evidence from which a jury could conclude a severe blow to victim’s face rendered her physically unable to effe…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tibbs v. Florida, 457 U.S. 31 (U.S. 1982)
- Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)
- McILWAIN v. State, 402 So. 2d 1194 (Fla. 5th DCA 1981)