CARL B. COILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Carl Coile appeals his conviction for lewd and lascivious behavior under Florida statute § 798.02 after the trial court reduced the initial charge from a child abuse statute. The appellate court affirmed the conviction, finding sufficient evidence of the defendant's conduct at a public beach and rejecting challenges to both the sufficiency of evidence and the admission of magazines found in his car.
The court held that the evidence was sufficient to support a conviction for lewd and lascivious behavior, as this was a question of fact for the trial court to determine. The court also held that the magazines were properly admitted as relevant evidence since they were possessed at the time and place of the alleged conduct, distinguishing such evidence from character evidence.
“We think that this was a question of fact for the trial court to determine.”
Establishes that the sufficiency of evidence regarding lewdness is a factual determination entitled to deference on appeal.
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Join FLexlaw to unlock all legal intelligenceAppellant, having consumed alcohol, conducted himself in a manner that alarmed adult supervisors of a girl scout troop on a county beach outing. He ap…
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The appellant was charged with a violation of § 800.04, Fla.Stat. (1967), F.S.A., entitled “Lewd, lascivious or indecent assault or act upon or in the presence of child.” On motion for directed verdict at the conclusion of the State’s case the court reduced the charge to a violation of § 798.-02, Fla.Stat. (1967), F.S.A.1 At the conclusion of the non-jury trial appellant was found guilty and placed on probation for two years; this appeal followed.
Appellant has presented two1 points on appeal. The first urges that the evidence is insufficient to establish a prima facie case of “open and gross lewdness and lascivious behavior,” as set forth in § 798.02.
*95The record contains testimony that the appellant, having consumed some alcohol, conducted himself in a manner which alarmed the adult supervisors of a troop of girl scouts. The girl scouts were having a holiday outing at one of the county beaches. In addition, there is evidence that the appellant approached and touched one of the children. The appellant on this appeal described this contact as a pat or push. The court found, from the testimony of the witnesses present that the touching of the child was insufficient to constitute an assault under § 800.04, which prohibits “handling], fondl[ing] or mak[ing] an assault upon any male or female child under the age of fourteen years * * *,” but sufficient to constitute a lewd and lascivious act under § 798.02, which prohibits “open and gross lewdness and lascivious behavior * * We think that this was a question of fact for the trial court to determine. Dickinson v. Geraci, Fla.App.1966, 190 So.2d 368, 388. We are unable to say as a matter of law that the appellant’s conduct was not open and gross lewd and lascivious behavior prohibited by § 798.02.
Appellant’s second point is directed to the admission in evidence of two magazines found on the front seat of appellant’s car when he was arrested. The trial judge termed them “pretty raw.” We think that error has not been demonstrated. In Williams v. State, Fla.1959, 110 So.2d 654, 662, the Supreme Court of Florida held: “Nonetheless, relevancy is the test. If found to be relevant for any purpose save that of proving bad character or propensity, then it should be admitted.” Possession of the magazines alone did not constitute lewd and lascivious behavior. But we think that possession of the magazines at the time and place the acts complained of occurred was a circumstance relevant to a determination of the guilt or innocence of the appellant.
Affirmed.
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Campbell v. State, 331 So. 2d 289 (Fla. 1976)…three reported appellate opinions construing the second clause of Section 798.02, Florida Statutes, (proscribing “open and gross lewdness and lascivious behavior”), which provides the basis for the charges against this appellant. In Coile v. State, 212 So. 2d 94 (Fla.App.3rd 1968), defendant was charged with the violation of Section 800.04, Florida Statutes, (lewd, lascivious, or indecent assault or act upon or in the presence of a child), and the trial court reduced the charge to a violation of the second…1 / 2
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Wilson v. State, 306 So. 2d 513 (Fla. 1975)…l intercourse with one of the victims prior to her death by shooting. There was sufficient relevancy between the pornographic evidence, its location, and the circumstances of the offenses to justify submit [*515] ting it to the jury. Coile v. State, 212 So. 2d 94 (Fla.App.3d 1968). The conviction of the appellant is hereby affirmed. ADKINS, C. J., and ROBERTS, ERVIN and McCAIN, JJ., concur.…
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State v. Coyle, 718 So. 2d 218 (Fla. 2d DCA 1998)…e information failed to set out the acts or conduct that were allegedly lewd and lascivious. Pitchford's conviction was reversed on the supreme court’s determination that the evidence failed to show a violation of the statute. But in Coile v. State, 212 So. 2d 94 (Fla. 3d DCA 1968), the Third District affirmed a conviction under this portion of the statute.…
Authorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Dickinson v. Geraci, 190 So. 2d 368 (Fla. 2d DCA 1966)