TIMOTHY L. BRINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Brinson abducted two sisters, forced the 21-year-old to disrobe and submit to rape while the 8-year-old was present. He was convicted of aggravated kidnapping under a statute requiring a lewd or lascivious act upon or in the presence of a child under 13. The court affirmed the conviction, holding that forced disrobing and rape in the presence of a child constitute the required predicate offense.
Forced disrobing and rape committed in the sensory presence of a child under 13 constitute lewd or lascivious acts within the meaning of the statute. The court rejected defendant's argument that such acts between sisters lack the requisite lascivious character, distinguishing between voluntary disrobing for innocent purposes and forced disrobing committed to facilitate sexual battery.
[1] A lewd, lascivious, or indecent assault or act upon or in the presence of a child under 13, committed during the course of a kidnapping, constitutes aggravated kidnapping…
[2] A lewd or lascivious act committed in the presence of a child under 16, even if not sexual battery, is a felony.
Previewing 2 of 4 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“It was "lewd" and "lascivious" for the defendant to force the older sister to disrobe before him, especially when done to facilitate his commission of a sexual battery on her, and that act was committed in the presence of the younger sister.”
Establishes that forced disrobing in the presence of a child, when done to facilitate sexual assault, constitutes a lewd or lascivious act.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant abducted a 21-year-old woman and her 8-year-old sister at knifepoint. He forced the older sister to remove her clothes in front of the young…
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COWART, Judge.
The defendant abducted a 21 year old girl and her eight year old sister, forced them into a house and at knife point forced the 21 year old sister to take off her clothes in the presence of the eight year old sister. The defendant then forced the older sister into an adjacent room, separated from the room containing the eight year old sister by a sheet hanging over the doorway, where the defendant, by force, had sexual intercourse with the older sister. At one point the defendant forced the older sister, while naked, to pass through the room where the eight year old sister was located. The defendant was convicted of aggravated kidnapping (§ 787.01(3)(a)3., Fla.Stat.), and appeals.
Section 787.01(3)(a)3., Florida Statutes, provides:
A person who commits the offense of kidnapping upon a child under the age of 13 and who, in the course of committing the offense, commits one or more of the following:
* * * * * *
3. A lewd, lascivious, or indecent assault or act upon or in the presence of the child, in violation of s. 800.04.
**
is guilty of a life felony....
Section 800.04(3), Florida Statutes, provides:
(3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree. ...
The defendant argues that because the two victims were both girls and sisters, the disrobing of the 21 year old in the presence of the eight year old sister did not constitute a lewd or lascivious act within the meaning of the statute. We disagree.
If a 21 year old sister and an eight year old sister were roommates and the older sister voluntarily disrobed in the privacy of the room but in the presence of the younger sister for the purpose of bathing, changing her clothes, etc., certainly the older sister would not be considered to have acted in a lewd or lascivious manner. Those were not the circumstances in this case. It was “lewd” and “lascivious” 1 for the defendant to force the older sister to disrobe before him, especially when done to facilitate his commission of a sexual battery on her, and that act was committed in the presence of the younger sister. Even the rape of the older sister in the adjoining room occurred within the sensory presence of the child and was alone sufficient to violate section 800.04(3), Florida Statutes, and to constitute the predicate crime for a violation of section 787.01(3)(a)3., Florida Statutes.
The defendant’s conviction of aggravated kidnapping is
AFFIRMED.
GOSHORN and HARRIS, JJ., concur. . See Chesebrough v. State, 255 So. 2d 675, 677 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972) and Egal v. State, 469 So. 2d 196 (Fla. 2d DCA 1985), rev. denied, 476 So. 2d 673 (Fla.1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Baker v. State, 723 So. 2d 338 (Fla. 5th DCA 1998)…e perpetrated against another family member, it is difficult to explain how the non-victim member suffered any additional trauma. At a minimum, the non-victim family member must be able to see or sense that a crime is taking place. Brinson v. State, 574 So. 2d 298 (Fla. 5th DCA 1991). The second ground for departure in this case rests on section 921.0016(3)(j). In this case it rests on the theory that Baker induced the victim to have sex with him and to participate in their sexual activities. However, that i…
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Morris v. State, 789 So. 2d 1032 (Fla. 1st DCA 2001)…ction 800.04(4) was to proscribe lewd or lascivious acts perpetrated on a third party in the presence of a child. See Simmons v. State, 722 So. 2d 862, 862 (Fla. 5th DCA 1998); Buggs v. State, 693 So. 2d 57, 59 (Fla. 5th DCA 1997); Brinson v. State, 574 So. 2d 298, 299 (Fla. 5th DCA 1991). Nothing of the kind is alleged here. Courts should not stretch a penal statute, even to cover clear evils lying outside the statute’s scope, particularly if, as Judge Browning ably argues, other statutes are aimed at the s…
Authorities Cited
- Chesebrough v. State, 255 So. 2d 675 (Fla. 1971)
- Chesebrough v. Florida, 406 U.S. 976 (U.S. 1972)
- Bailey v. North Carolina, 406 U.S. 976 (U.S. 1972)
- Egal v. State, 469 So. 2d 196 (Fla. 2d DCA 1985)