Gould v. State, 87-03068
| Decision Date | 14 March 1990 |
| Docket Number | No. 87-03068,87-03068 |
| Citation | 558 So.2d 481 |
| Parties | 15 Fla. L. Weekly D730 Gary GOULD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Andrea Steffen, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Stephen A. Baker, Asst. Atty. Gen., Tampa, for appellee.
Gary Gould appeals from his convictions and sentences for kidnapping, 1 sexual battery while threatening to use a deadly weapon, 2 two counts of sexual battery while threatening to use force or violence likely to cause serious personal injury to the victim, 3 two counts of sexual battery on a victim physically helpless to resist, 4 and three counts of battery. 5 Appellant contends: (1) the victim was not physically helpless, (2) it was error to allow
Williams 6 rule evidence, and (3) the court erred in failing to grant a judgment of acquittal on the kidnapping charge. We affirm in part, reverse in part and remand with directions.
Tracy was the victim of appellant's brutal attack, and she testified to the following at trial. Tracy and her son resided with appellant, and on the evening of October 26, 1986, appellant went out to get beer and returned with two six-packs. A short time later, appellant came into the bedroom yelling and proceeded to tape Tracy's hands and feet with duct tape. He slapped her five or six times and stated that he hated her and was going to cut her hair off, which he proceeded to do. He then made Tracy hop into the bathroom where he began shaving her head. Next, appellant removed the duct tape and tied Tracy with bedsheets to fixtures in the bathroom.
Appellant tore off her underwear and hit her again. With respect to the details of the first three sexual batteries, suffice it to say that appellant's vile actions and use of foreign objects for vaginal and anal penetration manifest appellant's severe sexual perversity and depravity. Tracy resisted these activities, told appellant to stop and tried to talk to him. At one point Tracy told appellant that her hands hurt, and he loosened the bindings. She screamed several times and asked appellant to "please stop." Tracy stated that she stopped screaming because she did not want to awaken her child. In addition to the sexual batteries, appellant blindfolded Tracy and beat her with a spatula until it broke, and he struck Tracy in the face with what she believed was a hammer. She told him that she did not want to die and asked him to stop.
After appellant untied Tracy, he held a knife to her throat and told her to perform oral sex on him. He then took her into the bedroom and again forced her to perform oral sex on him after he bound her hands behind her back. Appellant then fell asleep on the bed. Tracy testified that she was afraid of appellant and did not resist him more because she feared for her safety and that of her son.
After appellant fell asleep, Tracy got up, took her child to a neighbor's house and went to the police station. Officer Rickus interviewed Tracy. He then went to appellant's apartment and awakened appellant. He believed that appellant had been drinking, but that he was not intoxicated. After hearing his Miranda rights, appellant stated that he had gotten into a fight with Tracy, that he had pulled her into the bathroom and pushed her against the shower. Appellant stated that he understood that he had committed a serious crime. Tracy testified that the attack on her was unprovoked and that appellant had been drinking, but he was not intoxicated.
The following testimony was offered as Williams rule evidence over appellant's objections. Appellant's former girlfriend, Karen, testified that some eleven months previously, in November of 1985, she and her child were living with appellant. On November 21st she came home and could tell that he had been drinking, but that he was not intoxicated. She and appellant had been fighting during the day, and she had hung up on him earlier. Appellant wanted to talk, and she refused. Karen went into the bedroom, and appellant dragged her into the living room, pushed her into a chair and began yelling at her. He then returned her to the bedroom where he handcuffed her and tied her legs with strips of cloth. Appellant got a pocket knife, a sword and a hatchet, and at one point threatened to kill her if she made noise. Appellant cut off a piece of her hair with a knife and threatened to cut her legs off. Appellant then untied Karen, and they sat and talked. Appellant then ate and went to bed. Karen got her child and went to the police. Karen stated that she had allowed appellant to restrain her previously as part of their sexual relationship. On the evening of November 21st, she was not sexually assaulted.
Officer Rickus testified that he recognized appellant from the incident with Karen. Officer Rickus had interviewed Karen, and he testified as to her appearance. He went to appellant's apartment and arrested him. Officer Farrell interviewed appellant after his arrest on November 21, 1985. Appellant stated that he and Karen had argued and that he had tied her. He also slapped her and may have threatened her. Photographs, restraints and weapons relating to the November 21st incident were admitted into evidence over appellant's objection.
The trial court denied appellant's motions for judgment of acquittal on each count. The jury found appellant guilty as charged on all counts, and the trial court sentenced appellant within the guidelines to twenty-seven years' incarceration.
Appellant's first contention, which involves his convictions under counts two and three for sexual battery on a victim physically helpless, is meritorious. It is even more clear than it was in Davis v. State, 538 So.2d 515 (Fla. 2d DCA), rev. denied, 544 So.2d 201 (Fla.1989), that the victim in this case did not meet the statutory definition of "physically helpless." See § 794.011(1)(e), Fla.Stat. (1985). Tracy was bound, but the evidence shows that she repeatedly communicated her unwillingness to the sexual batteries. Therefore, the convictions under counts two and three must be reversed.
The defense requested a jury instruction on the category two lesser included offense of sexual battery under section 794.011(5), Florida Statutes (1985), to which the state objected. The trial judge denied appellant's request for that instruction. Appellant argues that the case must be remanded for the entry of a conviction for simple battery on counts two and three because the evidence supported a conviction for battery, and the jury was instructed on that charge.
Section 924.34, Florida Statutes (1987), provides:
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 statutory degree of the offense or 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 degree of the offense or for the lesser included offense.
(emphasis supplied). Section 794.011 is entitled "Sexual Battery." Subsection (1)(h) defines sexual battery as "oral, anal or vaginal penetration by, or union with, the sexual organ of another or the anal or the vaginal penetration of another by any other object." In subsections (2) through (5) the basic definition of sexual battery must be proved in each case. Then, depending upon the facts comprising the sexual battery, the crime can be a life felony, a first degree felony, or a second degree felony. Section 794.011(5) provides that "[a] person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury is guilty of a felony of the second degree."
Appellant agrees that the evidence supported a simple battery conviction. The same evidence is sufficient to show physical force and violence not likely to cause serious personal injury under section 794.011(5). Section 924.34 provides that when the appellate court determines that the evidence establishes a lesser statutory degree of the same offense, the appellate court shall reverse and direct the trial court to enter a judgment for that lesser degree of the offense. The sexual battery charged in count two consisted of appellant forcing the victim to perform oral sex on him in the bedroom while her hands were bound behind her back. The sexual battery charged in count three involved the appellant inserting foreign objects into the victim's vagina and rectum while her limbs were bound to bathroom fixtures. In both incidents it is clear that any physical force that appellant may have used in the commission of these acts was not likely to cause serious personal injury.
Thus, it would appear that subsection (5) sexual battery is a "lesser statutory degree of the offense" as set forth in section 924.34. We would be inclined to so hold were it not for the decision of our supreme court in Brown v. State, 206 So.2d 377 (Fla.1968). The question presented in Brown was whether the defendant was entitled to a jury instruction of larceny in a robbery case. The court addressed section 919.14, Florida Statutes (1965), which reads:
Determination of degree of offense. If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.
In its analysis the court stated that "[s]ection 919.14 applies only to those crimes which are divided into degrees,...
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