GEORGE RALSTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in refusing to answer the jury's question about implied consent and in denying a motion for judgment of acquittal.
The appellant was convicted of involuntary sexual battery. During deliberations, the jury asked if implied consent was a defense. The trial court decl…
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PER CURIAM.
The appellant was convicted of involuntary sexual battery after a jury trial. By this appeal, he contends that the trial court committed error in failing to respond to a question from the jury:
“Could there be such a thing as implied consent? Is implied consent a defense?”
He further contends that the trial court erred in failing to grant his motion for judgment of acquittal at the conclusion of all the evidence. We affirm.
As to the first point, the trial court correctly declined to respond to the question by the jury in regard to implied consent. Consent by the prosecutrix is a complete defense to the crime charged. The consent may be actual or implied. Whether or not the facts, as determined by the jury, support such a defense is for determination by the jury, and the trial court was not required to give a specific instruction on “implied consent”. Danford v. State, 53 Fla. 4, 43 So. 593 (1907); Lindberg v. State, 134 Fla. 786, 184 So. 662 (1938); Wester v. State, 141 Fla. 374, 193 So. 303 (1940); State v. Bryan, 287 So. 2d 73 (Fla.1973).
As to the last point, the prosecutrix’ testimony alone (which was obviously believed by the jury) was sufficient to make out a prima facie case and, therefore, no error was made by the trial court in denying the motion for judgment of acquittal. State v. Smith, 249 So. 2d 16 (Fla.1971); State v. Riggins, 314 So. 2d 238 (Fla. 4th D.C.A. 1975); Berezovsky v. State, 335 So. 2d 592 (Fla. 3rd D.C.A. 1976).
The conviction under review be and the same is hereby affirmed.
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McILWAIN v. State, 402 So. 2d 1194 (Fla. 5th DCA 1981)…. 2d 1184 (Fla.1976); Johnson v. State, 118 So. 2d 806 (Fla. 2d DCA 1960). . § 794.01 l(l)(h), Fla.Stat. (1979). . Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA 1981); see State v. Melendez, 392 So. 2d 587 (Fla. 4th DCA 1981). . Ralston v. State, 350 So. 2d 791 (Fla. 3d DCA 1977), cert. denied, 364 So. 2d 890 (Fla.1978); Farabee v. State, 336 So. 2d 1281 (Fla. 2d DCA 1976), cert. denied, 345 So. 2d 422 (Fla.1977). . Cf. Hicks v. State, 362 So. 2d 730 (Fla. 3d DCA 1978), cert. denied, 370 So. 2d 461 (Fla.1…
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Scheel v. State, 350 So. 2d 1120 (Fla. 3d DCA 1977)…of attempted involuntary sexual battery. Ralston was found guilty of involuntary sexual battery. The Ralston appeal was heard first and the opinion of this court affirming the judgment and sentence was filed September 20, 1977. See Ralston v. State, 350 So. 2d 791 (Fla.3d DCA 1977), filed September 20, 1977. Scheel and Wettlaufer have presented five points as follows: (1) The trial court erred in answering a question posed to it by [*1121] the jury. (2) The trial court erred in denying defendants’ motion for…
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Bullington v. State, 616 So. 2d 1036 (Fla. 3d DCA 1993)…(a), Florida Statutes (1989). We agree with the appellant that the evidence presented was insufficient to support a conviction under that section because the State failed to prove lack of consent. Consent may be actual or implied. Ralston v. State, 350 So. 2d 791 (Fla. 3d DCA 1977), cert. denied, 364 So. 2d 890 (Fla.1978). The evidence in this case was generally uncontroverted that S.E.M. initially agreed to participate in a group sex act, and that if she ever withdrew her consent to participate in specific…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Bryan, 287 So. 2d 73 (Fla. 1973)
- Carmine Charles Robert Falco v. State, 407 So. 2d 203 (Fla. 1981)
- Lindberg v. State, 134 Fla. 786 (Fla. 1938)
- Danford v. State, 53 Fla. 4 (Fla. 1907)
- Woodward v. Edwards, 249 So. 2d 16 (Fla. 1971)
- State v. Smith, 249 So. 2d 16 (Fla. 1971)
- Jiri Berezovsky v. State, 335 So. 2d 592 (Fla. 3d DCA 1976)
- Wester v. State, 141 Fla. 374 (Fla. 1940)
- Unigard Mut. Ins. Co. v. Sugarman, 314 So. 2d 238 (Fla. 3d DCA 1975)
- State v. Riggins, 314 So. 2d 238 (Fla. 4th DCA 1975)