Brinson v. State, No. 90-797

CourtCourt of Appeal of Florida (US)
Writing for the CourtCOWART
Citation16 Fla. L. Weekly 497,574 So.2d 298
Docket NumberNo. 90-797
Decision Date14 February 1991
Parties16 Fla. L. Weekly 497 Timothy L. BRINSON, Appellant, v. STATE of Florida, Appellee.

Page 298

574 So.2d 298
16 Fla. L. Weekly 497
Timothy L. BRINSON, Appellant,
v.
STATE of Florida, Appellee.
No. 90-797.
District Court of Appeal of Florida,
Fifth District.
Feb. 14, 1991.

Page 299

James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and James N. Charles, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

The defendant abducted a 21 year old girl and her eight year old sister, forced them into a house and at knife point forced the 21 year old sister to take off her clothes in the presence of the eight year old sister. The defendant then forced the older sister into an adjacent room, separated from the room containing the eight year old sister by a sheet hanging over the doorway, where the defendant, by force, had sexual intercourse with the older sister. At one point the defendant forced the older sister, while naked, to pass through the room where the eight year old sister was located. The defendant was convicted of aggravated kidnapping (§ 787.01(3)(a)3., Fla.Stat.), and appeals.

Section 787.01(3)(a)3., Florida Statutes, provides:

A person who commits the offense of kidnapping upon a child under the age of 13 and who, in the course of committing the offense, commits one or more of the following:

* * * * * *

3. A lewd, lascivious, or indecent assault or act upon or in the presence of the child, in violation of s. 800.04.

* * * * * *

is guilty of a life felony....

Section 800.04(3), Florida Statutes, provides:

(3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree....

The defendant argues that because the two victims were both girls and sisters, the disrobing of the 21 year old in the presence of the eight year old sister did not constitute a lewd or lascivious act within the meaning of the statute. We disagree.

If a 21 year old sister and an eight year old sister were roommates and the older sister voluntarily disrobed in the privacy of the room but in the presence of the younger sister for the purpose of bathing, changing her clothes, etc., certainly the older sister would not be considered to have acted in a lewd or lascivious manner. Those were not the circumstances in this case. It was "lewd" and "lascivious" 1 for the defendant to force the older sister to...

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2 practice notes
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...See Simmons v. State, 722 So.2d 862, 862 (Fla. 5th DCA 1998); Buggs v. State, 693 So.2d 57, 59 (Fla. 5th DCA 1997); Brinson v. State, 574 So.2d 298, 299 (Fla. 5th DCA 1991). Nothing of the kind is alleged Courts should not stretch a penal statute, even to cover clear evils lying outside the......
  • Baker v. State, No. 97-3171.
    • United States
    • Court of Appeal of Florida (US)
    • December 11, 1998
    ...trauma. At a minimum, the non-victim family member must be able to see or sense that a crime is taking place. Brinson v. State, 574 So.2d 298 (Fla. 5th DCA The second ground for departure in this case rests on section 921.0016(3)(j). In this case it rests on the theory that Baker induced th......
2 cases
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...See Simmons v. State, 722 So.2d 862, 862 (Fla. 5th DCA 1998); Buggs v. State, 693 So.2d 57, 59 (Fla. 5th DCA 1997); Brinson v. State, 574 So.2d 298, 299 (Fla. 5th DCA 1991). Nothing of the kind is alleged Courts should not stretch a penal statute, even to cover clear evils lying outside the......
  • Baker v. State, No. 97-3171.
    • United States
    • Court of Appeal of Florida (US)
    • December 11, 1998
    ...trauma. At a minimum, the non-victim family member must be able to see or sense that a crime is taking place. Brinson v. State, 574 So.2d 298 (Fla. 5th DCA The second ground for departure in this case rests on section 921.0016(3)(j). In this case it rests on the theory that Baker induced th......

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