CHAD EDWARD LAKEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Chad Lakey appeals his conviction for sexual battery on a child, attempted sexual battery on a child, and child abuse. The Florida Fifth District Court of Appeal reversed the attempted sexual battery conviction due to a fundamental instructional error that improperly allowed the jury to convict based on attempted digital union rather than digital penetration.
The trial court committed fundamental error in its jury instruction on attempted sexual battery. The instruction improperly permitted conviction based on attempted union with the sexual organ, when the statute requires either penetration by the defendant's or victim's sexual organ or penetration by an object (such as a finger). The court reversed and remanded for a new trial on the attempted sexual battery charge while affirming the convictions on the other two counts.
[1] A conviction for attempted sexual battery requires proof that the defendant attempted to penetrate, not merely have union with, the victim's sexual organ with their own s…
[2] A defendant's finger is considered an "object" for the purposes of the sexual battery statute.
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“A defendant's finger is considered an "object" within the meaning of the statute, and therefore "must penetrate and not merely have union with the relevant [body] part."”
Establishes the critical distinction between penetration and union when an object is used in sexual battery cases.
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Join FLexlaw to unlock all legal intelligenceLakey was charged with sexual battery on a child by a person in a position of familial or custodial authority, attempted sexual battery by which he al…
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Chad Edward Lakey appeals from the judgment and sentence entered after a jury convicted him of sexual battery on a child by a person in a position of familial or custodial authority, attempted sexual battery on a child by a person in a position of familial or custodial authority, and child abuse. On appeal, Lakey asserts the trial court committed fundamental error in failing to properly instruct the jury on attempted sexual battery. We agree and reverse.
As to the attempted sexual battery charge, the information alleged that Lakey “rubbed” the victim’s genitals. In order to obtain a conviction for attempted sexual battery, the State must prove that the defendant attempted to commit an act whereby (1) either the defendant’s or victim’s sexual organ penetrated or had union with the anus, vagina or mouth of the other, or (2) the anus or vagina of the victim was penetrated by an object. § 794.011(l)(h), (8)(b), Fla. Stat. (2008); Fla. Std. Jury Instr. (Crim.) 11.6. A defendant’s finger is considered an “object” within the meaning of the statute, and therefore “must penetrate and not merely have union with the relevant [body] part.” Holmes v. State, 842 So.2d 187, 188 (Fla. 2d DCA 2003) (quotation omitted).
In this case, the trial court instructed the jury as follows: “To prove the crime of Attempted Sexual [Battery on] a Child, the State must prove ... Chad La-key attempted to penetrate or have union with the sexual organ of [the 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 erroneous, we reverse and remand for a new trial on the attempted sexual battery charge. We affirm as to the remaining two counts.
AFFIRMED in part; REVERSED in part; and REMANDED.
EVANDER1 and COHEN, JJ., and MENDOZA, C.E., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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In re Standard Jury Instructions IN Crim. Cases-Report NO. 2014-08, 176 So. 3d 938 (Fla. 2015)…l, 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; however, sexual activity does not include an act done for a bona fide medical purpose. Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013). The definition of “an object” includes a finger. § 847.001(13), Fla. Stat. “Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physicall…1 / 2
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In re STANDARD JURY INSTRUCTIONS IN CRIM. CASES-REPORT 2018-04., 257 So. 3d 370 (Fla. 2018)…n object. The definition of an object includes a finger. 2. At the time, (defendant) was 24 years of age or older. 3. At the time, (victim) was 16 or 17 years of age. Give if applicable. Union means contact. Give if applicable. Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013). The definition of "an object" includes a finger. Give if applicable. § 794.05(1), Fla. Stat. Sexual activity does not include an act done for a bona fide medical purpose. Give if requested. § 794.05(3), Fla. Stat. (Victim'…1 / 5
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In re Standard Jury Instructions IN Crim. Cases-Instructions 7.8, 190 So. 3d 1055 (Fla. 2016)…endant) was less than 18 years of ageat-the time of the-sexual battery. Give if applicable. § 79Jf.011(l)(h), Fla. Stat. However, any act done for bona fide medical purposes is not a sexual battery. BefmjMon? Give if applicable. Lakey v. State, 113 So. 3d 90 (Fla. 5th D.CA 2013). “An object” includes a finger. “Union” means contact. Give if requested. Khianthalat v. State, 97k SoM 359 (Fla.2008). Consent of (victim) is not a defense to the crime charged. Give if requested. § 79k. 022, Fla. Stat..…1 / 5
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ottes Rogers v. State, 586 So. 2d 471 (Fla. 3d DCA 1991)
- Gill v. State, 586 So. 2d 471 (Fla. 4th DCA 1991)
- Holmes v. State, 842 So. 2d 187 (Fla. 2d DCA 2003)