CHARLES J. PENNINGTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Pennington was convicted of lewd and lascivious assault on a seven-year-old girl based on a single touch to her vaginal area over her clothing. The Florida District Court of Appeal reversed, finding the evidence insufficient to prove the requisite lewd or lascivious intent beyond a reasonable doubt.
The evidence was insufficient to prove beyond a reasonable doubt that appellant was guilty of the crime charged. The single touch, combined with the absence of fondling, endearments, kissing, declarations of love, or any suggestive conduct, failed to establish the requisite lewd and lascivious intent.
“'Lewd', 'lascivious', and 'indecent' are synonyms and connote wicked, lustful, unchaste, licentious or sensual design on the part of the perpetrator.”
Establishes the legal standard from Boles v. State for what constitutes the crime charged, requiring proof of specific lustful or sensual intent.
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Join FLexlaw to unlock all legal intelligenceA seven-year-old girl testified that appellant invited her into his home and touched her once in the vaginal area while she was fully clothed, with th…
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The appellant was found guilty after a non-jury trial of lewd, lascivious or indecent assault upon a female minor under the age of 14 years in violation of § 800.04, Fla.Stat., F.S.A.1 Judgment of conviction and a sentence of four years imprisonment were entered, and this appeal followed.
The appellant urges that the evidence before the trier, of fact was insufficient to support the judgment. The evidence as to the acts found to be lewd and lascivious were presented only by the testimony of the minor child involved. In considering whether the evidence of the child was sufficient to constitute proof of lewd and lascivious intent, we think it should be pointed out that the child under examination by the court stated that she did not know the state in which she lived, did not know what telling a lie was, and did not know what a court was or what an oath was.
The child, age seven, testified that she and her friend George, age six, were returning from school when they stopped to play in the yard where the appellant’s home was located. She testified that the appellant invited her- into the house and touched her once in the vaginal area. The touching was outside the clothing she wore. She was fully clothed. The appellant made no attempt to fondle her nor utter endearments to her. In fact the appellant said nothing to her except to tell her to go home or else her mother would worry.
The appellant did not deny that he touched the child but declared that the touching occurred as he was removing her from the house after she failed to follow his instructions to leave. He specifically denied any lewd or lascivious intent.
The Supreme Court of Florida in Boles v. State, 158 Fla. 220, 27 So.2d 293 (1946), declared:
“ ‘Lewd’, ‘lascivious’, and ‘indecent’ are synonyms and connote wicked, lustful, unchaste, licentious or sensual design on the part of the perpetrator.” 27 So.2d at 294.
We think the evidence viewed as a whole is insufficient to prove beyond a reasonable doubt that the appellant was guilty of the crime described in § 800.04 Fla.Stat., F.S.A., as defined in Boles v. State. For example the following exchange between the court and the child clearly shows a lack of “wicked, lustful, unchaste, licentious, or sensual design” on the part of the appellant:
“Q Were you standing on the floor when the man rubbed you ?
A No.
*58Q Where was this?
A Sitting on his bed.
Q Where was he?
A He was sitting by me.
Q Did he put his arm around you?
A No.
Q Did he hug you?
A No.
Q Did he kiss you ?
A No.
Q Did he tell you that he loved you?
A No.
Q He did not tell you he loved you?
A No.
Q Did he a,sk you to kiss him?
A No.
Q Did he ask you if you loved him ?
A No.
Q Did the man tell George to stay outside ?
A No.
Q No?
A No.”
The following quotation from the Supreme Court of Florida best states our reason for reversing the appellant’s conviction:
“Human liberty should not be forfeited by conviction under evidence which is not sufficient to convince a fair and impartial mind of the guilt of the accused to a moral certainty and beyond a reasonable doubt.” Rivers v. State, 140 Fla. 487, 192 So. 190, 191 (1939).
Reversed with directions to release the appellant from custody.
HENDRY, J., dissents.
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Cited By
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Rosen v. State, 940 So. 2d 1155 (Fla. 5th DCA 2006)…omitted). The testimony viewed in the light most favorable to the State shows Rosen did not try to kiss or proposition the students and made no other sexually indicative statements or motions. Cf. Washington, 766 So. 2d at 326; Pennington v. State, 219 So. 2d 56, 57-58 (Fla. 3d DCA 1969). Nevertheless, the totality of the circumstances was such that the jury properly could have concluded that his conduct violated the statute. See Egal, 469 So. 2d at 198 (affirming where naked defendant answered the door, to…
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Knight v. State, 294 So. 2d 387 (Fla. 4th DCA 1974)…d 146 (2d D.C.A.Fla.1973); Boswer v. State, 265 So. 2d 55 (3d D.C.A.Fla.1972). The mentioned circumstances raised a suspicion, but it can not be said that the evidence established defendant’s guilt beyond a reasonable doubt. See Pennington v. State, 219 So. 2d 56 (3d D.C.A. Fla. 1969); Lombardo v. State, supra. The rule in these instances is well known to be: “[W]hen circumstantial evidence is relied upon, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the wh…
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State v. Donovan Mitchell, 624 So. 2d 859 (Fla. 5th DCA 1993)…sing the amended information. The trial court relied upon Boles v. State, 158 Fla. 220, 27 So. 2d 293 (1946); Chesebrough v. State, 255 So. 2d 675 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972); and Pennington v. State, 219 So. 2d 56 (Fla. 3d DCA 1969). The behavior of Mitchell is not disputed. The uncontroverted facts establish that Mitchell kissed the child on her mouth, played in her hair and rubbed her buttocks. Whether these acts constitute lewd and lascivious behavior is…
Authorities Cited
- Boles v. State, 158 Fla. 220 (Fla. 1946)
- Rivers v. State, 140 Fla. 487 (Fla. 1939)