Burks v. State
| Decision Date | 18 September 2000 |
| Docket Number | No. 5D99-2980.,5D99-2980. |
| Citation | 766 So.2d 468 |
| Parties | Robert A. BURKS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
Robert Burks appeals his conviction for a lewd and lascivious act in the presence of a child. We reverse.
The year 1998 was not a good year for Burks. In that year, his house burned down, his mother died, and his girlfriend was murdered by her grandson. These most unfortunate events exacerbated Burks' already serious problem with alcohol. To add to these calamities, later in the same year Burks was charged with and convicted of a lewd and lascivious act in the presence of a child and sentenced to 35 months in prison. Our duty is to review the latest of Burks' misfortunes and decide whether the trial court erred when it denied Burks' motion for judgment of acquittal. We find, based on the unique facts and circumstances of this particular case, that the motion should have been granted. On August 29, 1998, Burks was living on a remote five acre tract of land in a mobile home situated on a dirt road in rural Geneva, Florida. According to the transcript of the sentencing hearing, Burks is hearing impaired and this, along with his alcoholism, led him to feel more secluded on his property than he actually was. This portion of the record also reveals that Burks was sitting in his Jacuzzi, apparently naked, drinking (the record does not reflect whether he was intoxicated), when he decided to get out and check on his garden hose. The evidence presented at trial reveals that fourteen-year-old Jennifer and her sixteen-year-old girlfriend, Lindsey, who had been riding their all terrain vehicles up and down little dirt roads all day, passed Burks' trailer which is down the road from the cabins owned by Jennifer's mother's fiancee, Butch. As they passed by, Jennifer noticed that Burks was completely naked. Lindsay did not see Burks, so the two made a U-turn and went by Burks again. In fact, the two girls made several trips past Burks. There is no evidence that Burks was aware of their comings and goings.
Jennifer and Lindsey decided to go back to Butch's cabin to report what they had seen. Incredibly, Butch directed Jennifer's mother, Carolyn, to take Jennifer— the younger of the two girls—back to see the sight. Carolyn and Jennifer got on an ATV and the two returned to the dirt road running along Burks' property. Driving "pretty slow," they spied Burks just as he stepped from behind his trailer. Burks stopped and put his hands on his hips. The prosecutor argued to the jury that Burks' act of standing in the open with his hands on his hips constituted the lewd and lascivious act which formed the basis of the charge. Carolyn and Jennifer returned to Butch and reported what they had seen. We find the next event to occur to be even more incredible: Butch instructed Jennifer and Lindsey—the two minors—to go back to Burks' area and ride up and down the road to keep the naked Burks outside until the police arrived. The girls complied. Carolyn apparently had decided, however, to confront Burks, so all three females arrived at Burks' property simultaneously. Burks was behind his trailer, but unfortunately came out when Carolyn started yelling. The girls left to get Butch.
Carolyn testified that she asked Burks what he was doing and he responded, "I'm sorry, ma'am, I didn't realize anybody was out here." Carolyn said, She testified that she stood there calling Burks names, hoping the police would get there. Unfortunately for Burks, the situation grew progressively worse when Butch arrived at the scene, entered onto Burks' property, and confronted the naked man at which time Burks said, "I'm sorry, I'm just airing out." At that point, Butch hit the hapless Burks, knocking him to the ground. Butch testified that he "pounded on him pretty seriously." Burks, bleeding, was able to get away and run into his house. The police arrived about five minutes later.
Burks was charged with one count of lewd and lascivious act in the presence of a child, a second degree felony, for exposing himself to Jennifer. Astonishingly (we use this word to avoid being repetitive but incredible and other similar superlatives may aptly fit here as well), Butch was not charged with anything.
At the conclusion of the State's case, defense counsel moved for a judgment of acquittal on the basis that there had been no evidence of a lewd or lascivious act. The State countered that the evidence of intent was sufficient to go to the jury to decide whether Burks had exposed himself in a wicked, lustful, unchaste, licentious manner. The trial judge, Judge Martin Budnick, noted that the State's case was "weak, and that's an understatement," but decided to let the case go to the jury. After the jury retired to deliberate, defense counsel renewed his objection and moved for a mistrial. The court denied the motion. The jury found Burks guilty as charged. Defense counsel again unsuccessfully moved for judgment of acquittal.
Sentencing occurred before Judge O.H. Eaton, who stated that he was not certain whether he would have sent the case to the jury if he had been the trial judge. Before sentencing, two psychological exams had been performed on Burks, neither of which revealed any sexual deviancy or perversions. Nevertheless, Judge Eaton noted that since the jury had found Burks guilty, the best he could do was to sentence Burks to the absolute minimum—35 months DOC. Sentence was imposed accordingly.
Based upon his act of stepping from behind his trailer and standing with his hands on his hips in the view of the fourteen-year-old, Burks was charged...
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...21-3508(a)(2). The distinction between an awareness by the offender and an awareness by the victim is illustrated in Burks v. State, 766 So.2d 468 (Fla.Dist.App.2000), and Holley v. Com., 38 Va.App. 158, 562 S.E.2d 351 (2002). In Burks, the defendant was convicted of committing a lewd and l......
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...We find no departure from the essential requirements of law sufficient to warrant certiorari relief. Ross cites to Burks v. State, 766 So.2d 468 (Fla. 5th DCA 2000). As the fifth district described it, Burks was a case with "unique facts and circumstances." Id. at 468. The defendant, hard o......
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