Coley v. State

• Citation: 616 So.2d 1017
• Decision Date: 16 March 1993
• Docket Number: No. 90-2182,90-2182
• Parties: 18 Fla. L. Week. D749 Sheila Diane COLEY, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1017

616 So.2d 1017

18 Fla. L. Week. D749

Sheila Diane COLEY, Appellant, v. The STATE of Florida, Appellee.

No. 90-2182.

District Court of Appeal of Florida,

Third District.

March 16, 1993.

Lubin and Gano, and Thomas C. Gano, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Mark S. Dunn, Asst. Atty. Gen., for appellee.

Before BASKIN, COPE and GERSTEN, JJ.

COPE, Judge.

Sheila Diane Coley appeals her convictions and sentences for sexual battery upon a person twelve years or older while physically helpless to resist, and two counts of conspiracy to commit sexual battery. We reverse.

I.

A.

Coley was charged with one count of sexual battery on a person twelve years or older while physically helpless to resist, and two counts of conspiracy to commit sexual battery. A codefendant, Harold Bullington, was charged with the same crimes. In addition Bullington was charged with delivery, and conspiracy to deliver, cocaine.

Coley was tried separately and convicted. The principal question presented is whether there was sufficient evidence to convict Coley of the crimes charged.

On appeal of a conviction in a criminal case, the test for sufficiency of the evidence is whether "a rational trier of fact could have found proof of guilt beyond a reasonable doubt." Melendez v. State, 498 So.2d 1258, 1261 (Fla.1986) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); accord Kaufman v. State, 429 So.2d 841 (Fla. 3d DCA1983) (citing Jackson ); D.M. v. State, 394 So.2d 520, 521 (Fla. 3d DCA 1981) (citing Jackson ). As stated in Jackson,

[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' ...

....

... [T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' ... Instead, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... The criterion thus impinges upon 'jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

Jackson v. Virginia, 443 U.S. at 315, 318-19, 99 S.Ct. at 2788-89, 61 L.Ed.2d at 571, 573-74 (footnotes and citations omitted; emphasis added). ¹ See also Lynch v If the evidence is insufficient under the foregoing standard, then the convictions must be reversed.

State, 293 So.2d 44, 45 (Fla.1974); Stewart v. State, 158 Fla. 753, 757-58, 30 So.2d 489, 490-91 (1947); Weinshenker v. State, 223 So.2d 561, 563 (Fla. 3d DCA), cert. denied, 225 So.2d 918 (Fla.), cert. denied, 396 U.S. 973, 90 S.Ct. 462, 24 L.Ed.2d 441 (1969).

B.

For purposes of determining the sufficiency of the evidence, our review is confined entirely to the record in Coley's case alone. The dissent filed in this case includes a lengthy discussion of the evidence in the separate trial of Bullington. As there are differences in the witnesses and testimony at the two trials--including differences in the testimony of the victim in the two trials--we confine our attention to the record from Coley's trial, not Bullington's, "to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 318, 99 S.Ct. at 2788-89. ²

II.

Coley was convicted of two counts of conspiracy to commit sexual battery. The panel is unanimous that there was no evidence to show the existence of a conspiracy under subsection 777.04(3), Florida Statutes (1989). See Ashenoff v. State, 391 So.2d 289, 291 (Fla. 3d DCA 1980). The convictions for conspiracy are reversed.

III.

The next question is whether there is sufficient evidence to sustain Coley's conviction on the sole remaining charge, sexual battery.

Count I of the Second Amended Information charged Coley and codefendant Bullington with committing "sexual battery upon S.E.M., a fifteen-year-old juvenile, without the victim's consent, while the victim was physically helpless to resist, contrary to Section 794.011(4)(a), (d), Florida Statutes...." ³

Coley argues that the State failed to prove essential elements of the crime--that the victim was "physically helpless to resist" within the meaning of the statute and that the sexual acts took place without S.E.M.'s consent. We agree.

The elements of a sexual battery under paragraph 794.011(4)(a), Florida Statutes (1989), are as follows:

(1) a sexual battery as defined by section 794.011(1)(h), Florida Statutes ..., is committed;

(2) The act was not consented to; and

(3) The victim was physically helpless to resist.

Gould v. State, 577 So.2d 1302, 1304 (Fla.1991).

We first consider whether there was sufficient evidence to establish the third element beyond a reasonable doubt, namely, that the victim was physically helpless to resist. The phrase, "physically helpless The statute gives "physically helpless to resist" an unusual and very limited definition. "The term 'physically helpless' means that a person is unconscious, asleep, or for any reason physically unable to communicate unwillingness to an act." Sec. 794.011(1)(e), Fla.Stat. (1989) (emphasis added). In order to prove this element, the State must show beyond a reasonable doubt that the victim was physically unable to communicate unwillingness, by reason of sleep, unconsciousness, or otherwise. It is the settled interpretation of the statute that being tied up does not meet this element of the offense; if the victim, although physically restrained, can communicate unwillingness, then this element is not satisfied. Gould v. State, 577 So.2d at 1305, aff'g in part, quashing in part, 558 So.2d 481, 483 (Fla. 2d DCA 1990); Norman v. State, 555 So.2d 1316, 1317 (Fla. 5th DCA 1990); Davis v. State, 538 So.2d 515, 516 (Fla. 2d DCA), review denied, 544 So.2d 201 (Fla.1989).

to resist," is a misnomer. The phrase suggests that it applies where, as here, the victim is tied up, but in fact the phrase has nothing at all to do with being physically restrained. ⁴

In light of those principles, we examine the facts of this case. The victim, S.E.M., had run away from home and was living with a female roommate in Tampa. S.E.M. met Stephen Lackey, with whom she developed a sexual relationship. Although fifteen years old, S.E.M. told everyone she was nineteen.

S.E.M. and Lackey went to the Florida Keys with Lackey's stepfather, Bullington, ⁵ Coley, S.E.M.'s roommate, and several other people. ⁶ During their stay in the Keys, the group consumed alcohol and cocaine. S.E.M. engaged in consensual sexual acts with Lackey, including S.E.M.'s being tied up at her request for sexual activity.

On the date in question, S.E.M. and several of the other persons voluntarily consumed cocaine which was on a plate in the motel room. At some point S.E.M. stated that she would like to try sex with a woman. Sexual activity followed, with defendant Coley engaging in two acts of oral sexual contact with S.E.M. while S.E.M. was tied to the bed. ⁷

The initial question is whether the evidence was sufficient to show that during this episode S.E.M. was physically helpless to resist as defined in the statute, i.e., physically unable to communicate unwillingness. We conclude that there was no such evidence.

Two witnesses testified at trial regarding this episode, S.E.M. and Lackey. ⁸ The testimony shows that S.E.M. was physically able to communicate at all relevant times. The entire episode began with a communication between S.E.M., Coley, and others, in which S.E.M. expressed a desire to have sex with a woman. (Tr. 117, 121). S.E.M. was neither asleep nor unconscious, for she described each of the sexual acts on which the State based its case. (Tr. 50-52). Obviously she would not be able to describe the sexual acts charged in the information if she had been unconscious or asleep during them.

S.E.M. also testified that she communicated during each of the acts in question.

She specifically asserted during parts of her testimony that she had communicated unwillingness, while conceding elsewhere in her testimony that she may have consented. (Tr. 51-53, 81, 88, see also Tr. 117, 121). The testimony shows ability to communicate at the relevant times; there is no evidence which would support a finding, beyond a reasonable doubt, of a physical inability to communicate unwillingness. ⁹

Coley's conviction of sexual battery on a person physically helpless to resist must be reversed. ¹⁰

IV.

Given that there is insufficient evidence to support the conviction under paragraph 794.011(4)(a), Florida Statutes, the next question is whether the offense may be reduced to a lesser included offense under authority of section 924.34, Florida Statutes (1989). That statute provides, in part,

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of ... a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for ... the lesser included offense.

Id.

In Gould v. State, the Florida Supreme Court held that the statute only allows an appellate court to reduce the offense to a necessarily included lesser offense, not to a permissive lesser included offense. 577 So.2d at 1304-05 & n. 6. ¹¹

Gould also holds that the necessarily lesser included offense for paragraph 794.011(4)(a) is...