Furlow v. State, 87-927
| Citation | 13 Fla. L. Weekly 1885,529 So.2d 804 |
| Decision Date | 10 August 1988 |
| Docket Number | No. 87-927,87-927 |
| Parties | 13 Fla. L. Weekly 1885 Lamar Leon FURLOW, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Alan Rosner of Harris, Guidi & Rosner, Jacksonville, for appellant.
Robert A. Butterworth, Atty. Gen., Elizabeth C. Masters, Asst. Atty. Gen., for appellee.
Furlow was convicted of a violation of Section 800.04(2), Florida Statutes, as charged in count I and two counts of simple assault (lesser included offenses of the offenses charged in counts II and III). We affirm the assault judgments and sentences under counts II and III, but reverse the 800.04(2) conviction.
Section 800.04(2) provides:
800.04 Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery.--Any person who:
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(2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or
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without committing the crime of sexual battery is guilty of a felony of the second degree....
The act defined as sexual battery under Section 794.011(1)(h), Florida Statutes, is therefore an essential element of a violation of Section 800.04(2). The phrase "sexual battery" is defined as follows:
The term "sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.
Section 794.011(1)(h).
The crime in count I was alleged to have been committed by use of the defendant's finger as opposed to his sexual organ. Under the above definition, mere "union with" the victim's vagina is insufficient because an object other than the defendant's organ was used. See State v. Allen, 519 So.2d 1076 (Fla. 1st DCA 1988). The state was therefore required to prove that the defendant penetrated the victim's vagina with his finger.
The record in this case obviously fails to establish the key element of penetration. The trial court, therefore, erred in denying the defendant's motion for judgment of acquittal as to count I. The trial court was apparently under the erroneous impression that penetration was not necessary. At the conclusion of the attorneys' arguments on the motion for judgment of acquittal, the trial judge, in announcing his ruling, observed:
Union with is such [sic] it doesn't have to be any penetration, or otherwise there would be no point in having the words, "penetration by or union with the sexual organ of another." So penetration is not necessary.
Appellant is therefore entitled...
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Maynard v. Sec'y
...2d 582, 583-86 (Fla. 4th DCA 1989), disapproved on other grounds, Wilson v. State, 635 So. 2d 16, 17 (Fla. 1994); Furlow v. State, 529 So. 2d 804, 805 (Fla. 1st DCA 1988); State v. Pate, 656 So. 2d 1323, 1326 (Fla. 5th DCA 1995). Actual penetration of the vagina must occur in order to susta......
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Wallis v. State, 88-847
...thirdly, ... oral, anal or vaginal union with the sexual organ of another. (emphasis in original). Id. at 358. In Furlow v. State, 529 So.2d 804 (Fla. 1st DCA 1988), the court, citing the definition of "sexual battery" under section 744.011(1)(h), Florida Statutes, Under the above definitio......
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Davis v. State
...a sexual battery does not include an act done for a bona fide medical purpose. § 794.011(1)(h), Fla.Stat. (1989). In Furlow v. State, 529 So.2d 804 (Fla. 1st DCA 1988), the appellant had been convicted of a violation of section 794.011, Florida Statutes. The question on appeal to this court......
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Graves v. State, 96-3856
...the "state was ... required to prove that the defendant penetrated the victim's vagina with his finger." Furlow v. State, 529 So.2d 804, 805 (Fla. 1st DCA 1988). See also J.W.C. v. State, 573 So.2d 1064, 1064 (Fla. 5th DCA 1991)(holding "evidence of digital union is clearly insufficient to ......