Collins v. State, 85-1710

• Decision Date: 06 November 1986
• Docket Number: No. 85-1710,85-1710
• Citation: 11 Fla. L. Weekly 2334,496 So.2d 997
• Parties: 11 Fla. L. Weekly 2334 Horace Daniel COLLINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 997

496 So.2d 997

11 Fla. L. Weekly 2334

Horace Daniel COLLINS, Appellant, v. STATE of Florida, Appellee.

No. 85-1710.

District Court of Appeal of Florida,

Fifth District.

Nov. 6, 1986.

Albert C. Simmons, Cedar Key, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

The appellant, Horace Daniel Collins, was convicted of sexual activity with a child over twelve years but less than eighteen years of age, in violation of section 794.041, Florida Statutes (Supp.1983). That section provides:

(2) Any person who stands in a position of familial or custodial authority to a child 12 years of age or older but less than 18 years of age and who:

(a) Solicits that child to engage in sexual activity is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Engages in sexual activity with that child is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.804.

In a subsequent statement of particulars, the state added: "The defendant's custodial authority was his giving the victim a ride from the bus stop to the location of the incident."

On appeal, the defendant contends the state failed to prove the element of custodial authority over the victim, and that the custody alleged and shown in this case is insufficient pursuant to the accepted definition of "custodial". The first attack in regard to this issue was made by the defendant in a motion for new trial. ¹ At a hearing on that motion, it was argued that the statute does not define "custody", and no custodial authority was shown. The argument as to the definition of the word "custodial" should have been raised either via a timely motion to dismiss or by timely objection to the court's jury instructions in regard to that definition. ² See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982), rev. denied, 426 So.2d 25 (Fla.1983).

Basically, we agree with the definition supplied by the First District in Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), and Stricklen v. State, 11 FLW 2092 (Fla. 1st DCA Oct. 2, 1986). In Coleman, section 794.011(4)(e), Florida Statutes (1983) was construed by Judge Ervin and the words "familial or custodial" were interpreted "to include within the statute's proscriptions any person maintaining a close relationship with children of the ages specified in the statute, and who lived in the same household with such children." Coleman at 1345. The latter portion of the definition--"living in the same household with such children"--was applicable to the facts in Coleman, but was held in Stricklen not to be an essential factor in the definition of "custodial" under the statute; rather, such custody can occur on a temporary basis, as in Stricklen and the instant case.

We believe the evidence presented below was sufficient to meet the common understanding of the word "custody", such as that offered by the trial judge from Webster's Dictionary. ³ The evidence presented showed that the victim had many contacts with the defendant, she had ridden in his truck many times, the defendant had daily contact with the victim's mother, and, in fact, the mother of the child knew, and approved, that the child was in the care of the defendant on the day the crime was committed.

AFFIRMED.

ORFINGER, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge, dissenting:

I respectfully dissent.

I do not agree with the majority opinion which gives such a broad definition of the word "custodial." I do not consider one who gives a child a ride in a car to...