JIM WALKER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a conviction for lewd and lascivious assault is mutually exclusive with a sexual battery charge arising from the same incident.
[1] Evidence, primarily from an eight-year-old witness, can be sufficient to support jury findings of guilt for sexual battery and lewd assault.
[2] Failure to object to evidentiary errors or prosecutorial misconduct during trial generally waives the issue for appellate review.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of sexual battery and lewd and lascivious assault based on a single incident involving a child. The conviction for lewd an…
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SCHWARTZ, Chief Judge.
Walker was charged with the crimes of sexual battery by digital penetration of a two-year old child and lewd and lascivious assault upon that child. The alleged offenses arose from a single act which occurred on August 6, 1991. He was convicted of attempted sexual battery, as a lesser included offense, and lewd and lascivious assault as charged, sentenced to concurrent terms of twenty and fifteen years respectively, and now appeals.
First, we find that, although disputed, the evidence — primarily that of the then-eight-year-old brother of the victim who said he saw the defendant sitting beside the child with his finger in her “privates” — was more than sufficient to support the jury findings of guilt. See Wilson v. State, 622 So. 2d 31 (Fla. 1st DCA 1993); Stone v. State, 547 So. 2d 657 (Fla. 2d DCA 1989). We also reject Walker’s claim to a new trial because of a number of asserted errors in the admission of evidence and in the prosecutor’s final argument. In almost every such instance, however, the defendant did not object or otherwise preserve the pertinent issue for consideration either by the trial court or on appeal. Tillman v. State, 471 So. 2d 32 (Fla.1985); Castor v. State, 365 So. 2d 701 (Fla.1978).
We conclude that the incidents, treated either individually or collectively, did not involve a violation of the defendant’s right to a fundamentally fair trial so as to require a reversal even in the absence of appropriate objection below. Compare Gonzalez v. State, 588 So. 2d 314, 316 (Fla. 3d DCA 1991) (involving “highly inflammatory” prosecutorial misconduct).
The judgment and sentence for lewd and lascivious assault, however, are vacated on the ground that, as held in State v. Hightower, 509 So. 2d 1078 (Fla.1987), followed by State v. Colbert, 522 So. 2d 436 (Fla. 2d DCA 1988), approved, 569 So. 2d 433 (Fla.1990), “a sexual battery charge and a lewd assault charge involving the same incident and acts with a child under sixteen are mutually exclusive.” Colbert, 522 So. 2d at 437.
Affirmed in part, vacated in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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D.D.M. v. State, 662 So. 2d 384 (Fla. 5th DCA 1995)…when based upon the same conduct, are mutually exclusive. See State v. Hightower, 509 So. 2d 1078, 1079 n. 4 (Fla.1987); Chaplin v. State, 622 So. 2d 165 (Fla. 2d DCA 1993). Accord Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994); Walker v. State, 622 So. 2d 630 (Fla. 3d DCA 1993); Edwards v. State, 613 So. 2d 508 (Fla. 5th DCA 1993). Likewise, the crime of attempted sexual battery would be mutually exclusive of lewd act upon a child unless established by additional evidence. Thus, the adjudication and comm…
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ROE v. State, 654 So. 2d 1287 (Fla. 1st DCA 1995)…unt formed the basis for the attempted sexual battery conviction. See State v. Hightower, 509 So. 2d 1078,1079 n. 4 (Fla.1987); Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994); Lewis v. State, 626 So. 2d 1073 (Fla. 1st DCA 1993); Walker v. State, 622 So. 2d 630 (Fla. 3d DCA 1993); Edwards v. State, 613 So. 2d 508 (Fla. 5th DCA 1993). WEBSTER and LAWRENCE, JJ., concur.…
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State v. Stone, 677 So. 2d 982 (Fla. 5th DCA 1996)…that H.M. suffered blunt trauma to the vaginal area consistent with digital or penile penetration. This evidence was sufficient to establish the defendant’s guilt for sexual battery let alone attempted sexual battery. See generally Walker v. State, 622 So. 2d 630 (Fla. 3d DCA 1993). H.M. further testified that the defendant made her touch his front private part and did so on more than one occasion. H.M. also testified that the defendant touched her private part with his tongue. Either act, which is separate…
Authorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- State v. Hightower, 509 So. 2d 1078 (Fla. 1987)
- Stone v. State, 547 So. 2d 657 (Fla. 2d DCA 1989)
- Wilson v. State, 622 So. 2d 31 (Fla. 1st DCA 1993)
- Colbert v. State, 569 So. 2d 433 (Fla. 1990)
- Gonzalez v. State, 588 So. 2d 314 (Fla. 3d DCA 1991)
- State v. Colbert, 522 So. 2d 436 (Fla. 2d DCA 1988)