JAMES ARNOLD NORMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the conviction for sexual battery of a physically helpless victim must be reversed because the victim was capable of communicating her unwillingness to the act. The court also found a jury instruction regarding inconsistent statements to be proper and remanded for resentencing on a lesser included offense.
James Arnold Norman was convicted of sexual battery of a physically helpless victim. The victim was able to communicate her unwillingness to the act b…
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GOSHORN, Judge.
James Arnold Norman was convicted of committing a sexual battery when the victim was physically helpless to resist.1 Because there is no evidence that the victim was physically helpless as that term is statutorily defined, we reverse.
Section 794.011(l)(e) provides:
The term “physically helpless” means that a person is unconscious, asleep, or for 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 effectively communicate her unwillingness to the act).
Norman further objects that the following jury instruction improperly led the jury to conclude that Norman’s inconsistent statements revealed HIS consciousness of guilt:
The court further instructs you that inconsistent exculpatory statements can be used to affirmatively show consciousness of guilty and unlawful intent.
This objection is without merit. See Johnson v. State, 465 So. 2d 499 (Fla.1985), cert. denied, 474 U.S. 865, 106 S.Ct. 186, 88 L.Ed.2d 155 (1985).
Finally, the parties agree that the trial court erred in assessing costs against Norman without notice or an opportunity to be heard. However, upon remand, the trial court may consider the assessment of costs following proper notice and hearing. Mays v. State, 519 So. 2d 618 (Fla.1988).
Accordingly, this case is reversed and remanded for resentencing for the lesser included offense of sexual battery in violation of section 794.011(5), Florida Statutes (1987).
REVERSED and REMANDED.
DAUKSCH and HARRIS, JJ„ concur. . § 794.011(4)(a), Fla.Stat. (1987).
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Coley v. State, 616 So. 2d 1017 (Fla. 3d DCA 1993)…offense; if the victim, although physically restrained, can communicate unwillingness, then this element is not satisfied. Gould v. State, 577 So. 2d at 1305, aff'g in part, quashing in part, 558 So. 2d 481, 483 (Fla. 2d DCA 1990); Norman v. State, 555 So. 2d 1316, 1317 (Fla. 5th DCA 1990); Davis v. State, 538 So. 2d 515, 516 (Fla. 2d DCA), review denied, 544 So. 2d 201 (Fla.1989). In light of those principles, we examine the facts of this case. The victim, S.E.M., had run away from home and was living with…1 / 2
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State v. Elkin, 595 So. 2d 119 (Fla. 3d DCA 1992)…nts, is thus relevant and can be used by the state affirmatively to show consciousness of guilt and unlawful intent. Johnson v. State, 465 So. 2d 499, 504 (Fla.), cert. denied, 474 U.S. 865, 106 S.Ct. 186, 88 L.Ed.2d 155 (1985). See Norman v. State, 555 So. 2d 1316 (Fla. 5th DCA 1990); P.N. v. State, 443 So. 2d 193, 194 (Fla. 3d DCA 1983). Whether defendant’s sworn statement was exculpatory and self-serving is not controlling because it is the state which seeks to use the statement in its case-in-chief. The s…
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State v. Sedia, 614 So. 2d 533 (Fla. 4th DCA 1993)…ly unable to communicate an unwillingness to an act.” Victims are not considered “physically helpless to resist” when they are able to communicate their unwillingness to participate in sexual intercourse, even if otherwise helpless. Norman v. State, 555 So. 2d 1316 (Fla. 5th DCA1990). In this case, even though the patient was not unconscious or asleep, it is [*535] reasonable to conclude that she was “otherwise physically unable to communicate an unwillingness to act” prior to penetration. Whether a victim is…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Del Monte Corp. v. Blau, 474 U.S. 865 (U.S. 1985)
- Johnson v. Texas, 474 U.S. 865 (U.S. 1985)
- Johnson v. State, 465 So. 2d 499 (Fla. 1985)
- Mannie Wilfredo Perez v. State, 479 So. 2d 266 (Fla. 5th DCA 1985)