Davis v. State, 87-2943
| Decision Date | 09 February 1989 |
| Docket Number | No. 87-2943,87-2943 |
| Citation | 14 Fla. L. Weekly 423,538 So.2d 515 |
| Parties | 14 Fla. L. Weekly 423 Lee Curtis DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ronald N. Toward, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
The appellant, Lee Curtis Davis, appeals his convictions and sentences for two counts of sexual battery on a physically helpless 13-year-old victim, violations of section 794.011, Florida Statutes (1985). He presents three issues. We are compelled to reverse on the first issue. Accordingly, we need not address the remaining points on appeal.
The facts can be simply summarized as follows. The appellant is the father of a physically handicapped daughter who has muscular dystrophy and is permanently confined to a wheelchair. She does not have the use of her legs but possesses strong arms from the use of her wheelchair and in all other ways is not handicapped. The charges against the appellant are based on an episode of vaginal and oral penetration of his daughter which occurred when they were alone together.
At trial, the victim testified that when her father took her into the bedroom and put her on the bed to begin the incident, she resisted by telling him that she did not want to do this and struck at him with her hands while calling out for help. Other witnesses for the state testified that, although the victim was physically handicapped in her lower body, she had no other problems regarding her thought processes or ability to communicate verbally. When the state rested its case, the appellant unsuccessfully moved for a judgment of acquittal based upon the legal argument which he again presents on appeal. When his motion for acquittal was denied, the appellant presented no other defense and rested his case. After closing argument, the jury convicted him as charged--two counts of sexual battery on a physically helpless victim.
The appellant contends that one of the elements of the crimes charged is that the victim be physically helpless to resist. § 794.011(4)(a), Fla.Stat. (1985), and Fla.Std. Jury Instr. (Crim.) (Sexual Offenses). The definition of "physically helpless" is "that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act." § 794.011(1)(e), Fla.Stat. (1985). The state's uncontroverted evidence showed that the victim was neither unconscious, asleep, nor physically unable to communicate in any other way her unwillingness to engage in the act. Therefore, the appellant's argument continues, the state failed to prove one of the necessary elements of the...
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