Graves v. State, No. 96-3856

CourtCourt of Appeal of Florida (US)
Writing for the CourtKAHN; BARFIELD; BENTON; BENTON
Citation704 So.2d 147
Docket NumberNo. 96-3856
Decision Date26 November 1997
Parties22 Fla. L. Weekly D2685 Leavorn GRAVES, Appellant, v. STATE of Florida, Appellee.

Page 147

704 So.2d 147
22 Fla. L. Weekly D2685
Leavorn GRAVES, Appellant,
v.
STATE of Florida, Appellee.
No. 96-3856.
District Court of Appeal of Florida,
First District.
Nov. 26, 1997.

Page 148

Nancy A. Daniels, Public Defender, and Carol Ann Turner, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, for Appellee.

KAHN, Judge.

Leavorn Graves has been convicted of two counts of sexual battery pursuant to section 794.011(2)(a), Florida Statutes (1993). The first count alleges digital penetration by the defendant of the child victim, and the other alleges injury to the child victim's sexual organs. These crimes are capital felonies for which appellant has been sentenced to two concurrent life sentences. We affirm.

The evidence of digital penetration, including the victim's testimony and a demonstration performed by the victim before the jury at the prosecutor's request, is sufficient to support the conviction in this case. See Davis v. State, 569 So.2d 1317 (Fla. 1st DCA 1990). Similarly, the evidence is sufficient to support the second count of sexual battery, which charges injury to the sexual organs of the six-year-old victim during an attempt to commit sexual battery. See § 794.011(2)(a), Fla. Stat. (1993).

Appellant's argument that he was charged with and convicted of a non-existent crime arises from a misunderstanding of the sexual battery statute. Sexual battery by injury to the sexual organs occurs, by the express wording in the statute, when the perpetrator injures the sexual organs of a child victim during "an attempt to commit sexual battery." Id. Thus appellant's argument that he was charged with "attempting to attempt to commit sexual battery" is completely without merit. The argument was undoubtedly engendered by the less than artful wording of the information:

that Leavorn Graves on or about January 3, 1995, ... did unlawfully injure the sexual organs of a person less than twelve (12) years of age, ... by attempting to digitally penetrate [A.W.]'s vagina in an attempt to commit sexual battery upon the said [A.W.]....

The prosecution sufficiently charged the capital offense of injury to the sexual organs during an attempt to commit sexual battery, although the information would have perhaps been easier for defense counsel to understand had the prosecution not included the last clause: "in an attempt to commit sexual battery...." This last clause merely restated the substantive allegations of the prior clause, which, in the words of the statute, adequately alleged an attempt to commit sexual battery.

Appellant also challenges the trial court's admission of certain testimony by the victim's mother and the victim's sister concerning prior actions of the defendant. The mother's testimony concerned consensual acts of sex between herself and the appellant. This testimony was relevant to show that appellant uses his fingers during sex and leaves scratches when...

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13 practice notes
  • Baker v. Sec'y, Case No. 3:16-cv-1243-J-39JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • June 15, 2018
    ...30-31. The state presented no medical evidence; however, the 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, b......
  • Russ v. State, No. 3D06-2949.
    • United States
    • Court of Appeal of Florida (US)
    • October 31, 2007
    ...not have been deemed fundamental error. See State v. Weaver, 957 So.2d 586 (Fla.2007). As the petitioner acknowledges, Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997), review denied, 718 So.2d 168 (Fla.1998), is exactly on point and so holds. See Hipp v. State, 650 So.2d 91 (Fla. 4th DCA......
  • Talley v. State, No. 2D13–5842.
    • United States
    • Court of Appeal of Florida (US)
    • May 21, 2014
    ...5th DCA 2002) ; Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001) ; Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998) ; Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997).SILBERMAN, VILLANTI, and LaROSE, JJ.,...
  • Williams v. State, No. 2D13–1189.
    • United States
    • Court of Appeal of Florida (US)
    • November 6, 2013
    ...Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Wilcox v.. State, 783 So.2d 1150 (Fla. 1st DCA 2001) (en banc); Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997).CRENSHAW, MORRIS, and SLEET, JJ.,...
  • Request a trial to view additional results
13 cases
  • Baker v. Sec'y, Case No. 3:16-cv-1243-J-39JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • June 15, 2018
    ...30-31. The state presented no medical evidence; however, the 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, b......
  • Russ v. State, No. 3D06-2949.
    • United States
    • Court of Appeal of Florida (US)
    • October 31, 2007
    ...not have been deemed fundamental error. See State v. Weaver, 957 So.2d 586 (Fla.2007). As the petitioner acknowledges, Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997), review denied, 718 So.2d 168 (Fla.1998), is exactly on point and so holds. See Hipp v. State, 650 So.2d 91 (Fla. 4th DCA......
  • Talley v. State, No. 2D13–5842.
    • United States
    • Court of Appeal of Florida (US)
    • May 21, 2014
    ...5th DCA 2002) ; Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001) ; Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998) ; Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997).SILBERMAN, VILLANTI, and LaROSE, JJ.,...
  • Williams v. State, No. 2D13–1189.
    • United States
    • Court of Appeal of Florida (US)
    • November 6, 2013
    ...Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Wilcox v.. State, 783 So.2d 1150 (Fla. 1st DCA 2001) (en banc); Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997).CRENSHAW, MORRIS, and SLEET, JJ.,...
  • Request a trial to view additional results

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