HARRY CLYDE SELLERS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Harry Sellers was convicted of rape by jury and sentenced with a mercy recommendation. On appeal, he challenged the sufficiency of evidence regarding penetration and alleged prosecutorial misconduct. The court affirmed the conviction, finding competent evidence of penetration and no fundamental error in the prosecutor's questioning.
The court held that there was competent substantial evidence to establish penetration based on the victim's testimony and expert testimony regarding seminal fluid location. The court found no fundamental error in the prosecutor's questioning because the defendant failed to object at trial or move for mistrial.
“at this stage of the proceedings all conflicts in the evidence and reasonable inferences therefrom are resolved in support of the verdict”
Establishes the appellate standard of review for sufficiency of evidence challenges
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Join FLexlaw to unlock all legal intelligenceSellers was indicted and tried for rape. The victim testified on multiple occasions that the defendant placed his penis against her vaginal opening. A…
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The appellant was indicted for the crime of rape. He was tried by a jury and convicted, with a recommendation of mercy. He has perfected this appeal and urges error in the proceedings in the trial court in the following particulars: 1) That there is insufficient evidence to support the conviction because of a lack of evidence of “penetration” and, 2) That fundamental error was committed by the prosecutor in certain questions propounded to the defendant. We find no merit in either of the contentions, and affirm.
Some of the evidence was in conflict, but at this stage of the proceedings all conflicts in the evidence and reasonable inferences therefrom are resolved in support of the verdict. Boyd v. State, Fla.App. 1960, 122 So.2d 632; Crum v. State, Fla. App.1965, 172 So.2d 24; Walden v. State, Fla.App.1966, 191 So.2d 68. The victim, on more than one occasion, testified that the defendant placed his penis against her vaginal opening. There was direct testimony by an expert witness that male seminal fluid was found at least three and one-half inches within the vagina. Therefore, we find competent substantial evidence to establish the penetration. Williams v. State, 53 Fla. 84, 43 So. 431; Harris v. State, 72 Fla. 128, 72 So. 520; Craig v. State, 214 Md. 546, 136 A.2d 243; State v. Jones, 249 N.C. 134, 105 S.E.2d 513; 27 Fla.Jur., Rape, §§ 4 and 33; 75 C.J.S. Rape § 10(b); Accord, Nickels v. State, 90 Fla. 659, 106 So. 479.
As to the alleged improper questioning by the Assistant State Attorney, no objection was made, no motion was made to strike the answer, and no motion was made for mistrial. Counsel for the appellant relies upon the proposition of fundamental error. We fail to find any such upon the authority of State v. Jones, Fla.1967, 204 So.2d 515 [no fundamental error in prosecutor’s comment on failure of defendant to testify] ; Farrington v. State, Fla.App.1968, 207 So.2d 513 [no fundamental error in depriving defense counsel of right to closing argument, when no request was made for same in trial court].
*661Therefore, for the reasons above stated the verdict, adjudication of guilt, and sentence here under review be and the same is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Conyers v. State, 215 So. 2d 616 (Fla. 3d DCA 1968)…ose allegations. That rule may be summarized as: A mere allegation of the knowing use of perjured testimony without substantiating facts and documents, does not require full evidentiary hearing pursuant to CrRP 1.850. Simmons v. State, Fla.App.1968, 212 So. 2d 659; Gammage v. State, Fla.App.1964, 162 So. 2d 529; Austin v. State, Fla.App.1964, 160 So. 2d 730. We hold that this latter rule controls this case and therefore, the order appealed is affirmed. Affirmed.…
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Emmett James Paramore v. State, 238 So. 2d 604 (Fla. 1970)…In addition, appellant’s thumbprint was found on the prose-cutrix’s automobile window. Swab tests, as well as a garment found at the scene of the crime, revealed the existence of seminal fluid. This was further corroboration. See Sellers v. State, 212 So. 2d 659 (3d Dist.Ct.App.1968). We have carefully read the record, not only because the assignments are directed to the sufficiency of the proof but also for the reason that we are required to do so under the provisions of Fla.Stat. § 924.32 (2), F.S.A., an…
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Finney v. State, 220 So. 2d 673 (Fla. 3d DCA 1969)…dence in conflict is resolved in favor of the verdict as well as all inferences therefrom are taken in favor of the verdict. Crum v. State, Fla.App.1965, 172 So. 2d 24; Sylvia v. State, Fla.App. 1968, 210 So. 2d 286; Sellers v. State, Fla.App. 1968, 212 So. 2d 659. Therefore, for the reasons above stated, the verdict, judgment of conviction, and sentence here under review be and the same is hereby affirmed. Affirmed.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nickels v. State, 106 So. 479 (Fla. 1925)
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965)
- Sobol v. Sobol, 191 So. 2d 68 (Fla. 3d DCA 1966)
- Boyd v. State, 122 So. 2d 632 (Fla. 1st DCA 1960)
- Harris v. State, 72 Fla. 128 (Fla. 1916)
- Williams v. State, 53 Fla. 84 (Fla. 1907)
- Farrington v. State, 207 So. 2d 513 (Fla. 3d DCA 1968)