Gill v. State, 90-1861
| Decision Date | 25 September 1991 |
| Docket Number | No. 90-1861,90-1861 |
| Citation | 586 So.2d 471 |
| Parties | Edwin GILL, Appellant, v. STATE of Florida, Appellee. 586 So.2d 471, 16 Fla. L. Week. D2507 |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Sylvia H. Alonso, Asst. Atty. Gen., West Palm Beach, for appellee.
We reverse the appellant's conviction and sentence to life in prison for sexual battery on a child. The defendant sought to establish, in cross-examination of the victim, that there had been no digital penetration of the anus as charged, and rather, that any digital contact was without penetration.
Section 794.011(1)(h), Florida Statutes, provides:
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 ...
Conviction under this statute requires either penetration by or union with a sexual organ or penetration by an object. The statute is not violated by proof of union with an object in the absence of penetration.
The young victim's testimony indicated that penetration occurred. However, a portion of that testimony was sufficiently ambiguous to raise a question for the jury as to whether in fact there had been penetration. There was no independent evidence of penetration.
The trial court erred by instructing the jury:
Before you can find the Defendant guilty of sexual battery upon a person less than twelve years of age, the State must prove the following two elements beyond a reasonable doubt: (1) [named victim] was less than twelve years of age and (2) Edwin George Gill ... committed an act upon [named victim] in which the anus of [named victim] was penetrated by an object....
The term union is an alternative to penetration and means coming into contact....
The error was compounded by the assistant state attorney's closing argument that:
[Defense counsel] also said that penetration has to be proven. One thing the Judge will tell you is when he instructs you on the law is union with is an alternative to penetration and means coming into contact.... In this particular case I think the Judge will tell you that it can be committing an act upon [named victim] in which the anus of [named victim] was penetrated by an object. By an object. In union. The finger.
We reverse, notwithstanding the absence of a specific objection, because the court's direction...
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Baker v. Sec'y, Case No. 3:16-cv-1243-J-39JRK
...victim's testimony is sufficient to support the conviction. Graves v. State, 704 So.2d 147, 148 (Fla. 1st DCA 1997). Cf. Gill v. State, 586 So.2d 471, 472 (Fla. 4th DCA 1991) (noting the victim's testimony indicated penetration, but was too ambiguous to raise a question for the jury as to w......
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O'Leary v. Sec'y, Case No: 2:12-cv-599-FtM-2 9CM
...or penetration by an object. The statute is not violated by proof of union with an object in the absence of penetration." Gill v. State, 586 So. 2d 471, 472 (Fla. 4th DCAPage 451991). To the extent that Petitioner now complains that the only evidence at trial was that his fingers had "union......
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Russ v. State
...could be committed either by penetration "and/or" mere union with the vagina or anus of the victim, as held in Gill v. State, 586 So.2d 471, 472 (Fla. 4th DCA 1991), told the jury that a guilty verdict could be based on simple digital contact alone, which it statutorily could not.2 We deny ......
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Palazzolo v. State, 2D98-416.
...digital capital sexual battery could be established by proof of "union." The facts of this case are similar to those in Gill v. State, 586 So.2d 471 (Fla. 4th DCA 1991). Gill involved allegations that the defendant digitally penetrated a young boy's anus. After a jury trial, the court gave ......