Lifka v. State, BS-210
| Decision Date | 08 August 1988 |
| Docket Number | No. BS-210,BS-210 |
| Citation | 530 So.2d 371,13 Fla. L. Weekly 1856 |
| Parties | 13 Fla. L. Weekly 1856 David John LIFKA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.
David John Lifka appeals his conviction upon a four count information after a jury trial. Each count charged that he "did handle, fondle or make an assault upon [the named victim], a child under the age of 16 years, in a lewd, lascivious or indecent manner by willfully exposing his sexual organ to her in a lewd manner, contrary to the provisions of Section 800.04, Florida Statutes." He contends that the trial court erred (1) in denying his motion for judgment of acquittal on the recited charge because the evidence was legally insufficient to prove a lewd assault, and (2) in excluding certain evidence. Because we reverse on appellant's first point, we do not reach the second point.
The facts giving rise to the charges against Lifka, drawing all inferences most favorably for the state, may be summarized as follows. On February 4, 1986, two fourteen year old girls were walking along a street in their residential neighborhood when a young man drove slowly by them in a sports car. The car turned around near the end of the block and came back by them at a slow speed, estimated variously between 10 and 15 miles per hour. As the car slowly passed within five or six feet of the girls, the male driver raised himself from the seat and exposed his erect penis to the girls. The car continued past the girls and left the area. After arriving at the home of one of the girls, they told the mother what had happened and the police were called. The investigating officer took statements from the girls and told them to get the license number of the vehicle should this ever happen again.
Nearly three weeks later, on February 22, 1986, one of the same girls and another 14 year old girl were walking down the street in the same neighborhood when the same car approached them and slowly passed by. The car turned around in the next block and returned toward the girls at approximately 10 to 15 miles per hour, and as it passed within five feet of the girls the male driver raised himself from the seat, removed a towel from across his abdomen, and exposed his erect penis. The car continued past the girls and left the area. This time, however, the girls noted the vehicle license number, ran to a neighbor who was standing in her yard nearby and used her phone to call the mother of one of the girls. The police were called by the mother, and the investigating officer came to her house, obtained the license number, and took statements from the girls. Inquiry revealed that a sports car bearing that license number was registered in the name of appellant Lifka.
Lifka was notified by the police to come to the station for questioning and did so voluntarily. Pictures were taken of him and later shown to the girls. They identified Lifka's picture as the man in the car, and again identified him at trial. The police officer arrested Lifka upon charges of committing a "lewd and lascivious act in the presence of a child" in violation of section 800.04, Florida Statutes (1985), which provides:
Any person who:
(1) Handles, fondles or makes an assault upon any child under the age of 16 in a lewd, lascivious, or indecent manner;
(2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or
(3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony in the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section.
Although the investigating officer had charged Lifka under subsection 800.04(3), relating to the commission of lewd acts, as the basis for arrest, the prosecuting attorney, for reasons not made apparent in the record or in the briefs, elected to charge Lifka under the wording of subsection 800.04(1) by alleging lewd and lascivious assaults, and to try the case solely on that legal theory. 1 There being no evidence of handling or fondling, the state argues the sufficiency of the evidence to support the conviction entirely upon the premise that it proved lewd assault in violation of section 800.04(1). The defendant, on the other hand, has argued to the court below and to this court that the evidence did not prove an essential element of assault--an overt threat to do violence--but proved only that defendant exposed his genitals in a vulgar manner in violation of section 800.03, Florida Statutes (1985), a first degree misdemeanor.
The three young girls involved testified at trial. In describing the defendant's conduct, each of them used words to the effect that "he drove by us and exposed himself" (Tr. 26); "he exposed his penis" (Tr. 37); "we saw him lift himself up and expose his penis" (Tr. 45); "a man passed us in a blue car and exposed himself" (Tr. 81); "he exposed his penis to us" (Tr. 86, 88); "that's when he exposed himself" (Tr. 113); or "he went by and exposed himself to us" (Tr. 118). The mother of one girl testified that her daughter told her "that the car had stopped and someone had flashed her" (Tr. 73). The investigating officer said he was told by the girls that a man had "exposed himself to them" (Tr. 127). Throughout the trial the prosecuting attorney referred to the defendant as the man who exposed himself to the girls.
The girls testified that the man in the car never said anything to them (Tr. 60), and never made any overt movements to come out of the car at them or to drive the car at them or anything like that (Tr. 61, 98, 123). The car "just drove off" and "he didn't do anything" (Tr. 90). The girls did say, however, that after the defendant exposed himself they were surprised and became scared that he might come back again and do something worse.
Appellant pled not guilty, denied that he was the individual involved, and presented substantial evidence through other witnesses to support his alibi defense as to the incident that occurred on February 4. He was unable to establish an alibi defense to the February 22 incident. At the conclusion of the state's case and again at the close of all evidence, defendant's counsel moved for a judgment of acquittal on the offense charged, arguing that the evidence construed most favorably for the state completely failed to prove the assaults alleged in the information and that the evidence was sufficient to prove only vulgar exposure of one's genitals in violation of section 800.03. The trial court initially took the motion under advisement, expressing considerable difficulty with the sufficiency of the state's case to prove the alleged assaults, but eventually decided to let the matter go to the jury. 2 The trial court, with the state's concurrence, instructed the jury on the lesser included offense of indecent exposure under section 800.03. The state did not request any instruction on the criminal offense defined in section 800.04(3), and throughout the trial (and this appeal) has steadfastly adhered to the position that this is an assault case. The jury returned a verdict of guilty as charged on all four counts. Judge Oliff, who presided over the trial of the case, thereafter recused himself before sentencing and hearing on defendant's post trial motions. Judge Parsons, who was then assigned to the case, denied all post-trial motions. 3
We hold that the state's evidence was legally insufficient to prove the offense of lewd and lascivious assault defined in section 800.04(1), as charged in the information. Regardless of whether the evidence could be held to prove the commission of a lewd or lascivious act in the presence of a child in violation of section 800.04(3), see, e.g., Egal v. State, 469 So.2d 196 (Fla. 2d DCA), pet. for rev. denied, 476 So.2d 673 (Fla.1985), the state has at all times insisted upon charging and trying this case as one involving a lewd assault proscribed by section 800.04(1). The state requested no instruction based on section 800.04(3). The trial judge, with the state's concurrence, charged the jury that before they could find the defendant guilty of the charges made, the state had to prove two elements: (1) that the girls were under the age of 16 years (which is not in dispute), and (2) that the defendant "handled or fondled" the named victim "in a lewd, lascivious or indecent manner, or that the defendant made an assault upon [the named victim] in a lewd, lascivious or indecent manner" (Tr. 472). The court's instructions then defined assault as follows:
An assault is defined as an intentional and unlawful threat either by word or act to do violence to the victim; and two, that at the time the defendant appeared to have the ability to carry out the threat; and three, that the act of the defendant created in the victim a well-founded fear that the violence was about to take place.
(Tr. 472). This definition is taken from the Florida Standard Jury Instructions in Criminal Cases. The court then instructed the jury on the definition of "lewd, lascivious and indecent" in accordance with these standard jury instructions. The court also instructed the jury on two lesser included offenses: (1) exposure of sexual organ in a vulgar or indecent manner, prohibited by section 800.03, and (2) simple assault.
The state approved the instructions as given and does not question on appeal this definition of assault. It insists, rather, that the evidence was legally sufficient to prove each of the three elements of assault outlined by the trial judge, arguing as...
To continue reading
Request your trial
- State, Dept. of Revenue, Office of Child Support Enforcement on Behalf of D.J.N. v. Redding
-
Santiago v. Towle, 5D05-151.
...support that part of the definition of an assault requiring a well-founded fear that violence was imminent. See, e.g., Lifka v. State, 530 So.2d 371 (Fla. 1st DCA 1988). Finally, the incident based on the neighbor's telling Ms. Towle that Mr. Santiago had a gun and was not afraid to use it ......
-
O.D. v. State, 91-03347
...The state's evidence failed to show that the appellant directed an overt act at Mr. Dawson to place him in fear. See Lifka v. State, 530 So.2d 371, 375 (Fla. 1st DCA 1988); Battles v. State, 288 So.2d 573 (Fla. 2d DCA), cert. denied, 295 So.2d 302 (Fla.1974). The state's evidence also faile......
-
Furlow v. State
...Internet or another online service, we are constrained to reverse Furlow's convictions under section 847.0135(5). See Lifka v. State, 530 So.2d 371, 376 (Fla. 1st DCA 1988) ; see also Hutchinson v. State, 315 So.2d 546, 547 (Fla. 2d DCA 1975) ("[I]t is ... axiomatic that statutes creating a......