J.W.C. v. State, No. 89-2289

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation573 So.2d 1064,16 Fla. L. Weekly 416
Parties16 Fla. L. Weekly 416 J.W.C., a Child, Appellant, v. STATE of Florida, Appellee.
Decision Date07 February 1991
Docket NumberNo. 89-2289

Page 1064

573 So.2d 1064
16 Fla. L. Weekly 416
J.W.C., a Child, Appellant,
v.
STATE of Florida, Appellee.
No. 89-2289.
District Court of Appeal of Florida,
Fifth District.
Feb. 7, 1991.

James B. Gibson, Public Defender, and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Appellant contends the trial court erred in denying his motion for acquittal because there was insufficient evidence to support his conviction of sexual battery. Although appellant was charged in the alternative with the commission of a sexual battery upon a child less than twelve (12) years of age "by causing his finger to unite/penetrate her vagina," evidence of digital union is clearly insufficient to support a charge of sexual battery. See Wallis v. State, 548 So.2d 808 (Fla. 5th DCA 1989); Furlow v. State, 529 So.2d 804 (Fla. 1st DCA 1988). Where the battery involves the use of a defendant's finger, the state must show penetration, although even the slightest evidence of penetration is sufficient. The recent decision of the First District Court of Appeal, Davis v. State, 569 So.2d 1317 (Fla. 1st DCA 1990) includes a good discussion of certain kinds of evidence found sufficient to support an inference of penetration.

Here, the state relies on the child's statement that appellant "played with my privates" to prove the penetration essential to sexual battery. 1 According to the state,

Page 1065

this phrase indicates penetration in the vernacular of an eight year old child. There was no medical examination of the victim. The only other evidence submitted on this issue was the mother's testimony that she found a pair of the child's panties, bloodstained, a couple of days after the alleged battery occurred. This evidence was never directly connected to the alleged incident, except by the mother's testimony that they must have been worn by the child on the day of the incident because all the child's other clothes were clean. The child was not asked about the panties. We do not believe this evidence reaches even the "slight" standard. The motion for judgment of acquittal should have been granted; the conviction for sexual battery must be reversed. 2

REVERSED.

COBB, HARRIS and GRIFFIN, JJ., concur.

---------------

1 No more specific testimony was sought from the victim. There was corroborating evidence that something...

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8 practice notes
  • O'Leary v. Sec'y, Case No: 2:12-cv-599-FtM-2 9CM
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 27, 2015
    ...DCA 1994) ("[E]ven the slightest evidence of penetration is sufficient [to show that penetration occurred]"); J.W.C. v. State, 573 So. 2d 1064, 1964 (Fla. 5th DCA 1991)(" Where the battery involves the use of a defendant's finger, the state must show penetration, although eve......
  • Barton v. State, No. 96-535
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 1997
    ...elements that must be proven in a prosecution for capital sexual battery under section 794.011(2)(a), Florida Statutes. J.W.C. v. State, 573 So.2d 1064 (Fla. 5th DCA 1991), but evidence of the slightest penetration will suffice. Pride v. State, 511 So.2d 1068 (Fla. 1st DCA 1987). Moreover, ......
  • Graves v. State, No. 96-3856
    • United States
    • Court of Appeal of Florida (US)
    • November 26, 1997
    ...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 support a charge of sexual battery"); Fir......
  • Donton v. State, No. 1D07-3629.
    • United States
    • Court of Appeal of Florida (US)
    • January 8, 2009
    ...what he had observed first-hand was based on his own knowledge of the facts. Appellant misplaces his reliance on J.W.C. v. State, 573 So.2d 1064 (Fla. 5th DCA 1991), in which the child, an alleged victim of sexual battery involving the defendant's finger and the child's vagina, merely state......
  • Request a trial to view additional results
8 cases
  • O'Leary v. Sec'y, Case No: 2:12-cv-599-FtM-2 9CM
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 27, 2015
    ...DCA 1994) ("[E]ven the slightest evidence of penetration is sufficient [to show that penetration occurred]"); J.W.C. v. State, 573 So. 2d 1064, 1964 (Fla. 5th DCA 1991)(" Where the battery involves the use of a defendant's finger, the state must show penetration, although eve......
  • Barton v. State, No. 96-535
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 1997
    ...elements that must be proven in a prosecution for capital sexual battery under section 794.011(2)(a), Florida Statutes. J.W.C. v. State, 573 So.2d 1064 (Fla. 5th DCA 1991), but evidence of the slightest penetration will suffice. Pride v. State, 511 So.2d 1068 (Fla. 1st DCA 1987). Moreover, ......
  • Graves v. State, No. 96-3856
    • United States
    • Court of Appeal of Florida (US)
    • November 26, 1997
    ...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 support a charge of sexual battery"); Fir......
  • Donton v. State, No. 1D07-3629.
    • United States
    • Court of Appeal of Florida (US)
    • January 8, 2009
    ...what he had observed first-hand was based on his own knowledge of the facts. Appellant misplaces his reliance on J.W.C. v. State, 573 So.2d 1064 (Fla. 5th DCA 1991), in which the child, an alleged victim of sexual battery involving the defendant's finger and the child's vagina, merely state......
  • Request a trial to view additional results

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