STEPHEN A. DURANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence was insufficient to prove the defendant knowingly exposed himself in a lewd or lascivious manner, requiring reversal of the conviction.
The defendant was convicted of committing a lewd or lascivious act after urinating off his back steps while knowing neighbor girls were outside. The t…
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BLUE, Judge.
Stephen A. Durant appeals his conviction for committing a lewd or lascivious act in the presence of a child under the age of 16 years. He argues that the evidence did not prove he knowingly exposed himself in a lewd or lascivious manner. We agree and reverse.
Durant was charged with two counts of committing a lewd or lascivious act under section 800.04(4), Florida Statutes (1991). After a bench trial, the court acquitted Durant on the first count but convicted him on the second. This count was based on allegations that Durant urinated off his back steps one evening, knowing that neighbor girls were outside and would see him. The trial court also revoked Durant’s probation.
The act of urinating in public does not by itself constitute a lewd or lascivious act. Payne v. State, 463 So. 2d 271 (Fla. 2d DCA 1984). Likewise, exposure of one’s private parts does not qualify unless the circumstances show a lewd or lascivious intent. Egal v. State, 469 So. 2d 196 (Fla. 2d DCA) (Frank, J., dissenting), review denied, 476 So. 2d 673 (Fla.1985). To support a conviction under section 800.04(4), the evidence must prove some degree of “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.” Egal, 469 So. 2d at 197 (citations omitted). No evidence was introduced at trial to show such an intent.
Because the evidence failed to prove the required illicit intent on Durant’s part, we reverse his conviction. We remand for the trial court to reconsider the revocation of probation. It is unclear from the record whether the revocation was based solely on this conviction or whether the evidence presented at trial constituted alternate grounds for revocation. On remand, the trial court may revoke probation again if such an action is justified.
FRANK, C.J., and THREADGILL, J., concur.
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M.L.C. v. State, 875 So. 2d 810 (Fla. 2d DCA 2004)…e and four of the petition. See Williamson v. State, 839 So. 2d 921, 923-24 (Fla. 2d DCA 2003) (reversing a conviction for lewd and lascivious act “[bjecause there was no evidence from which the requisite intent could be inferred”); Durant v. State, 647 So. 2d 163, 164 (Fla. 2d DCA 1994) (reversing the defendant’s conviction for a lewd or lascivious act when the circumstances did not demonstrate a “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator” (quoting Egal, 469 So.…
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Burks v. State, 766 So. 2d 468 (Fla. 5th DCA 2000)…his hands on his hips was an act of “wicked, lustful, unchaste, licentious or sensual design.” There is no evidence that Burks knew the girls had earlier been ogling him or that he knew that the mother and daughter had returned. See Durant v. State, 647 So. 2d 163 (Fla. 2d DCA 1994) (holding that evidence failed to prove wicked, lustful, unchaste intent on part of defendant who urinated off his back steps one evening, allegedly knowing that teenage girls were outside and would see him; [*471] circumstances mu…
Authorities Cited
- Egal v. State, 469 So. 2d 196 (Fla. 2d DCA 1985)
- Payne v. State, 463 So. 2d 271 (Fla. 2d DCA 1984)