J.W.C., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fifth District Court of Appeal reversed a child's sexual battery conviction, holding that the evidence was insufficient to prove the penetration element required for sexual battery when digital contact is alleged. The court found that the victim's statement that the defendant "played with my privates" and bloodstained panties, without medical examination or direct connection to the incident, did not meet even the minimal "slight" standard of penetration evidence required by law.
The conviction for sexual battery must be reversed because the state failed to present sufficient evidence of penetration, the essential element of sexual battery when a finger is used. The child's statement "played with my privates" and the bloodstained panties, lacking direct connection to the alleged incident and without medical examination, do not meet even the minimal "slight" standard of penetration evidence required by law.
[1] Evidence of digital union alone is insufficient to support a charge of sexual battery.
[2] To prove sexual battery involving the use of a defendant's finger, the state must present evidence of penetration, even if slight.
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Join FLexlaw to unlock all legal intelligence“Where the battery involves the use of a defendant's finger, the state must show penetration, although even the slightest evidence of penetration is sufficient.”
Establishes the legal standard for sexual battery cases involving digital contact—penetration is essential but only slight evidence is needed.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with sexual battery on a child under twelve years of age by digital penetration of the victim's vagina. The primary evidence con…
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PER CURIAM.
Appellant contends the trial court erred in denying his motion for acquittal because there was insufficient evidence to support his conviction of sexual battery. Although appellant was charged in the alternative with the commission of a sexual battery upon a child less than twelve (12) years of age “by causing his finger to unite/penetrate her vagina,” evidence of digital union is clearly insufficient to support a charge of sexual battery. See Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989); Furlow v. State, 529 So. 2d 804 (Fla. 1st DCA 1988). Where the battery involves the use of a defendant’s finger, the state must show penetration, although even the slightest evidence of penetration is sufficient. The recent decision of the First District Court of Appeal, Davis v. State, 569 So. 2d 1317 (Fla. 1st DCA 1990) includes a good discussion of certain kinds of evidence found sufficient to support an inference of penetration.
Here, the state relies on the child’s statement that appellant “played with my privates” to prove the penetration essential to sexual battery.1 According to the state, this phrase indicates penetration in the vernacular of an eight year old child. There was no medical examination of the victim. The only other evidence submitted on this issue was the mother’s testimony that she found a pair of the child’s panties, bloodstained, a couple of days after the alleged battery occurred. This evidence was never directly connected to the alleged incident, except by the mother’s testimony that they must have been worn by the child on the day of the incident because all the child’s other clothes were clean. The child was not asked about the panties. We do not believe this evidence reaches even the “slight” standard. The motion for judgment of acquittal should have been granted; the conviction for sexual battery must be reversed.2
REVERSED.
COBB, HARRIS and GRIFFIN, JJ., concur. . No more specific testimony was sought from the victim. There was corroborating evidence that something occurred. A neighbor testified she heard the child hollering and went into the apartment, found the bedroom door locked, and knocked on the door. When the door opened she turned on the light and saw the victim with her panties to her knees.
. A complicating factor here was that the original trial transcript contained so many "inaudible” entries where the key testimony should have appeared that counsel and the trial judge were obliged to get together and attempt to reconstruct the record. Thus, we are working, in part, from the transcript of the meeting where counsel and the judge listened to the audiotape of the trial and attempted to supply the missing words. We have encountered this inaudibility problem in prior appeals .taken from this juvenile court. It appears from the record in this case that corrective efforts are being made. We hope this is the case; the defendant’s appeal should be based on a clear record of the actual testimony that convicted him.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Barton v. State, 704 So. 2d 569 (Fla. 1st DCA 1997)…support the verdict and judgment.” Tibbs v. State, 397 So. 2d 1120, 1123 (Fla.1981).. Penetration is one of the elements that must be proven in a prosecution for capital sexual battery under section 794.011(2)(a), Florida Statutes. J.W.C. v. State, 573 So. 2d 1064 (Fla. 5th DCA 1991), but evidence of the slightest penetration will suffice. Pride v. State, 511 So. 2d 1068. (Fla. 1st DCA 1987). Moreover, as we explained in Davis v. State, 569 So. 2d 1317 (Fla. 1st DCA 1990), “evidence of injury to external fema…
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Ready v. State, 636 So. 2d 67 (Fla. 2d DCA 1994)…s. Appellant filed a timely notice of appeal. In order to prove the crime of sexual battery by digital penetration, the prosecution is required to show penetration, although even the slightest evidence of penetration is sufficient. J.W.C. v. State, 573 So. 2d 1064 (Fla. 5th DCA 1991). However, uncorroborated hearsay statements cannot be used as the sole evidence to prove penetration. Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988); Bell v. State, 569 So. 2d 1322 (Fla. 1st DCA 1990). In the instant case,…
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Leavorn Graves v. State, 704 So. 2d 147 (Fla. 1st DCA 1997)…to prevail on count two, which alleged digital penetration, the “state was ... required, to prove that the defendant penetrated the victim’s vagina with his finger.” Furlow v. State, 529 So. 2d 804, 805 (Fla. 1st DCA 1988). See also J.W.C. v. State, 573 So. 2d 1064, 1064 (Fla. 5th DCA 1991)(holding “evidence of digital union is clearly insufficient to support a charge of sexual battery”); Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989); Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989). It was not enough…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989)
- Davis v. State, 569 So. 2d 1317 (Fla. 1st DCA 1990)
- Furlow v. State, 529 So. 2d 804 (Fla. 1st DCA 1988)