EDWIN GILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal reversed a sexual battery conviction where the trial court erroneously instructed the jury that "union" with an object could substitute for penetration as an element of the crime. The statute requires penetration, not merely contact, so the instruction misled the jury on a critical element.
Yes. The court held that the statute requires penetration, not merely union or contact, and the trial court's jury instruction was fundamental error because it misled the jury on a critical disputed element of the crime. The conviction must be reversed and a new trial ordered.
[1] Conviction for sexual battery under Florida Statute § 794.011(1)(h) requires proof of penetration by a sexual organ or an object, or union with a sexual organ; proof of u…
[2] A jury instruction that misstates a required element of a crime, particularly a disputed element, constitutes fundamental error.
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“Conviction under this statute requires either penetration by or union with a sexual organ or penetration by an object. The statute is not violated by proof of union with an object in the absence of penetration.”
Establishes that the statute requires actual penetration, not merely union/contact with an object
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Join FLexlaw to unlock all legal intelligenceEdwin Gill was convicted of sexual battery on a child under twelve. The victim testified regarding digital contact with her anus, but her testimony wa…
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STONE, Judge.
We reverse the appellant’s conviction and sentence to life in prison for sexual battery on a child. The defendant sought to establish, in cross-examination of the victim, that there had been no digital penetration of the anus as charged, and rather, that any digital contact was without penetration.
Section 794.011(l)(h), Florida Statutes, provides:
The term “sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object ...
Conviction under this statute requires either penetration by or union with a sexual organ or penetration by an object. The statute is not violated by proof of union with an object in the absence of penetration.
The young victim’s testimony indicated that penetration occurred. However, a portion of that testimony was sufficiently ambiguous to raise a question for the jury as to whether in fact there had been penetration. There was no independent evidence of penetration.
The trial court erred by instructing the jury:
Before you can find the Defendant guilty of sexual battery upon a person less than twelve years of age, the State must prove the following two elements beyond a reasonable doubt: (1) [named victim] was less than twelve years of age and (2) Edwin George Gill ... committed an act upon [named victim] in which the anus of [named victim] was penetrated by an object....
The term union is an alternative to penetration and means coming into contact. ...
The error was compounded by the assistant state attorney’s closing argument that:
[Defense counsel] also said that penetration has to be proven. One thing the Judge will tell you is when he instructs you on the law is union with is an alternative to penetration and means coming into contact.... In this particular case I think the Judge will tell you that it can be committing an act upon [named victim] in which the anus of [named victim] was penetrated by an object. By an object. In union. The finger. We reverse, notwithstanding the absence of a specific objection, because the court’s direction to the jury, highlighted by the prosecutor’s statement indicating that union was an alternative to penetration, is fundamental error. Such error misleads the jury as to a required specific element, which may have been the most significant disputed aspect of the state’s case. Cf. Doyle v. State, 483 So. 2d 89 (Fla. 4th DCA 1986), appeal after remand, 513 So. 2d 188 (Fla. 4th DCA 1987), rev. denied, 520 So. 2d 583 (Fla.1988); Christian v. State, 272 So. 2d 852 (Fla. 4th DCA), cert. denied, 275 So. 2d 544 (Fla.1973); Cole v. State, 573 So. 2d 175 (Fla. 2d DCA 1991); Stanley v. State, 560 So. 2d 1269 (Fla. 3d DCA 1990); Steele v. State, 561 So. 2d 638 (Fla. 1st DCA 1990).
REVERSE AND REMAND FOR NEW TRIAL.
ANSTEAD and WARNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Reed v. State, 783 So. 2d 1192 (Fla. 1st DCA 2001)…t of the offense.”); Ward v. State, 655 So. 2d 1290, 1292 (Fla. 5th DCA 1995) (“The giving of an incomplete and inaccurate instruction on the law is fundamental error where the error relates to the elements of the criminal offense.”); Gill v. State, 586 So. 2d 471 (Fla. 4th DCA 1991) (holding that giving an inaccurate misleading instruction regarding a required element of sexual battery constituted fundamental error); Cole v. State, 573 So. 2d 175 (Fla. 2d DCA 1991) (holding that giving an inaccurate faulty i…
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Palazzolo v. State, 754 So. 2d 731 (Fla. 2d DCA 2000)…s of procedure in this case. 2. Whether the trial court committed fundamental error by instructing the jury that digital capital sexual battery could be established by proof of “union.” The facts of this case are similar to those in Gill v. State, 586 So. 2d 471 (Fla. 4th DCA 1991). Gill involved allegations that the defendant digitally penetrated a young boy’s anus. After a jury trial, the court gave the correct standard instruction for a digital penetration case. See Fla. Std. Jury Instr. (Crim.) 167.3 Ho…
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Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013)…he victim].” This instruction improperly permitted the jury to convict Lakey of attempted sexual battery based on a finding that he attempted a digital union with the sexual organ of the victim. See Holmes, 842 So. 2d at 188; see also Gill v. State, 586 So. 2d 471, 472 (Fla. 4th DCA 1991) (holding trial court committed fundamental error in instructing jury that union with an object was an alternative to penetration by an object on the charge of sexual battery). Finding the instruction was fundamentally errone…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steele v. State, 561 So. 2d 638 (Fla. 1st DCA 1990)
- Christian v. State, 272 So. 2d 852 (Fla. 4th DCA 1973)
- Doyle v. State, 483 So. 2d 89 (Fla. 4th DCA 1986)
- Hernandez v. Metro. Dade Cnty. & Puritan Ins. Co., 483 So. 2d 89 (Fla. 3d DCA 1986)
- Doyle v. State, 513 So. 2d 188 (Fla. 4th DCA 1987)
- Stanley v. State, 560 So. 2d 1269 (Fla. 3d DCA 1990)
- Cole v. State, 573 So. 2d 175 (Fla. 2d DCA 1991)
- Mittel v. Kahn, 275 So. 2d 544 (Fla. 1973)
- State v. Christian, 275 So. 2d 544 (Fla. 1973)