Lakey v. State
| Citation | 113 So.3d 90 |
| Decision Date | 29 May 2013 |
| Docket Number | No. 5D11–4231.,5D11–4231. |
| Parties | Chad Edward LAKEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Chad Edward LAKEY, Appellant,
v.
STATE of Florida, Appellee.
No. 5D11–4231.
District Court of Appeal of Florida,
Fifth District.
May 3, 2013.
Rehearing Denied May 29, 2013.
[113 So.3d 91]
William R. Ponall of Snure & Ponall, P.A., Winter Park, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Chad Edward Lakey appeals from the judgment and sentence entered after a jury convicted him of sexual battery on a child by a person in a position of familial or custodial authority, attempted sexual battery on a child by a person in a position of familial or custodial authority, and child abuse. On appeal, Lakey asserts the trial court committed fundamental error in failing to properly instruct the jury on attempted sexual battery. We agree and reverse.
As to the attempted sexual battery charge, the information alleged that Lakey “rubbed” the victim's genitals. In order to obtain a conviction for attempted sexual battery, the State must prove that the defendant attempted to commit an act whereby (1) either the defendant's or victim's sexual organ penetrated or had union with the anus, vagina or mouth of the other, or (2) the anus or vagina of the victim was penetrated by an object. § 794.011(1)(h), (8)(b), Fla. Stat. (2008); Fla. Std. Jury Instr. (Crim.) 11.6. A defendant's finger is considered an “object” within the meaning of the statute, and therefore “must penetrate and not merely have union with the relevant [body] part.” Holmes v. State, 842 So.2d 187, 188 (Fla. 2d DCA 2003) (quotation omitted).
In this case, the trial court instructed the jury as follows: “To prove the crime of Attempted Sexual [Battery on] a Child, the State must prove ... Chad Lakey attempted to penetrate or have union with the sexual organ of [the victim].” This instruction improperly permitted the jury to convict Lakey of attempted sexual battery based on a finding that he attempted a digital union with the sexual organ of the victim. See Holmes, 842 So.2d at 188;see also Gill v. State, 586 So.2d 471, 472 (Fla. 4th DCA 1991) (holding trial court committed fundamental error in instructing jury that union with an object was an alternative to penetration by an object on the charge of sexual battery). Finding the instruction was fundamentally erroneous, we reverse and remand for a new trial on the attempted sexual battery charge. We affirm as to the remaining two counts.
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In re Standard Jury Instructions in Criminal Cases—Instructions 7.8, 7.8(A), & 11.1—11.6(A), SC15–470.
...Fla. Stat.However, any act done for bona fide medical purposes is not a sexual battery.Definition. Give if applicable.Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).“An object” includes a finger.“Union” means contact.Give if requested. Khianthalat v. State, 974 So.2d 359 (Fla.2008) .Conse......
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In re Standard Jury Instructions in Criminal Cases—Report No. 2015–06, SC15–1872.
...by any other object; however, sexual battery 195 So.3d 369 does not include an act done for a bona fide medical purpose.Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).“An object” includes a finger.“Deviate sexual intercourse” means sexual conduct between persons not married to each other ......
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In re Standard Jury Instructions in Criminal Cases—Report 2019-09
... ... Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner PER CURIAM. The Supreme Court Committee on Standard Jury Instructions in Criminal Cases ... Give if applicable. "Bona fide" means genuine. Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013). The definition of "an object" includes a finger. § 847.001(13), Fla. Stat. "Sadomasochistic abuse" means ... ...
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Flowers v. Sec'y, Dep't of Corrs., 5:18-cv-315-TPB-PRL
... ... initiated this action by filing a pro se Petition Under 28 ... U.S.C. § 2254 for Writ of Habeas Corpus by a Person in ... State Custody (Doc. 1). Respondents filed a Response (Doc ... 13). [ 1 ] ... The Court provided Petitioner with an opportunity to reply ... as [a] principal to one crime if it found his accomplice ... guilty of another, uncharged act” ( id. at 15 ... (citing Lakey v. State , 113 So.3d 90 (Fla. 5th DCA ... 2013); Phillips v. State , 100 So.3d 249 (Fla. 4th ... DCA 2012); Sabree v. State , 978 So.2d ... ...