Bowden v. State, 92-2773
| Decision Date | 22 August 1994 |
| Docket Number | No. 92-2773,92-2773 |
| Citation | 642 So.2d 769 |
| Parties | 19 Fla. L. Weekly D1810 Mark C. BOWDEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Marilyn McFadden, Asst. Atty. Gen., for appellee.
Appellant Mark Bowden appeals from a judgment and sentence for capital sexual battery. He contends, in part, that the amended information on which he was convicted was insufficient as a matter of law. We affirm.
The initial information charged Bowden with committing a sexual battery on a two-year-old child "by union with his penis and the child's vagina." The case proceeded to discovery and trial. Two days after jury selection and a day before the trial commenced, the state, over a defense objection, amended the information to charge sexual battery on the two-year-old child by "union with his penis and her sexual organ or by penetrating her vagina with his finger(s)" (count I) and with unlawfully handling, fondling or making an assault in a lewd, lascivious or indecent manner upon S.J. by rubbing her sexual organ (count II). 1
In defending his rationale for changing vagina to sexual organ in the amended information, the prosecutor stated, While the amended information is inartfully drawn, our review of Florida case law convinces us that this information does, in fact, charge sexual battery under the Florida statute.
Criminal statutes must be strictly construed, with any ambiguity resolved in favor of the defendant. Sec. 775.021(1), Fla.Stat. Where an offense is defined by statute, the offense must be charged in the very language of the statute, or in language of equivalent import and nothing can be taken by intendment. See Gibbs v. Mayo, 81 So.2d 739, 740 (Fla.1955); Catanese v. State, 251 So.2d 572, 574 (Fla. 4th DCA 1971). When a word is substituted for that used in the statute, the substituted word must necessarily be within the terms of the statute in order to charge an offense. Gibbs, 81 So.2d at 740. Where an information omits one or more of the essential elements of the crime, it fails to charge a crime under the laws of the state. State v. Gray, 435 So.2d 816 (Fla.1983).
Section 794.011, Florida Statutes, gives the following definition for "sexual battery":
(1)(h) "Sexual battery" means oral, 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 battery does not include an act done for a bona fide medical purpose.
Prior to 1974, the crime of rape in Florida was committed by "penetration of the female parts by the private male organ." Sec. 794.01, Fla.Stat. (1973). The rape statute did not mention the word vagina. Effective October 1, 1974, the rape statutes were repealed and the legislature created the statutory crime of sexual battery. Although vagina is not defined in the statutes, medical dictionaries define it as "a musculomembrane tube which forms the passageway between the cervix uteri and the vulvae." Taber's Cyclopedia Medical Dictionary 783 (14th Ed.1982); accord, Dorland's Illustrated Medical Dictionary 1433 (26th Ed.1985). Given the strict medical definition of vagina, the only way the vagina could be reached is through penetration. However, the statute defining sexual battery provides for "vaginal penetration by, or union with, the sexual organ of another." Sec. 794.011(1)(h), Fla.Stat. (e.s.). This court, in Dorch v. State, 458 So.2d 357, 358 (Fla. 1st DCA 1984), has observed:
[I]t is clear that the Legislature intended that "union" mean something other than penetration.... [C]ontact alone, between the sexual organ of the offender and the mouth, anus, or vagina of the victim, is sufficient to convict.
It has further been observed, that:
The legislature kept the "private parts" concept of rape by specifying that sexual battery occurs upon "vaginal penetration by, or a union with, the sexual organ of another." The phrase "union with" continues the concept that any penetration by a male's private organ of any part of a female's private parts also constitutes a crime." Firkey v. State, 557 So.2d 582, 585 (Fla. 4th DCA 1989).
The foregoing observations indicate that although the term "vagina," may have a very definite medical meaning, the word as used in the statute is a...
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Pittman v. State, No. 3D07-2524 (Fla. App. 9/2/2009)
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