Pineiro v. State, 91-3029
| Decision Date | 16 March 1993 |
| Docket Number | No. 91-3029,91-3029 |
| Parties | 18 Fla. L. Week. D745 Francisco PINEIRO, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and J. Rafael Rodriguez, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
Before BARKDULL, COPE and GODERICH, JJ.
The defendant, Francisco Pineiro, appeals from his conviction for fifty-seven counts of sexual battery on a person less than twelve years of age. We affirm.
The defendant was charged by information with fifty-seven counts of sexual battery on a person less than twelve years of age, in violation of Section 794.011(2), Florida Statutes (1989). All of the counts, except Count XXI, allege that the defendant committed sexual battery upon R.M. "by placing his mouth and/or tongue in union with the vagina of R.M. a minor, and/or by penetrating the vagina of R.M., a minor, with his finger." Count XXI alleges that the defendant committed sexual battery upon R.M. "by placing his penis in union with, and/or inside the mouth and/or lips of R.M."
R.M. testified at trial that the defendant started to touch her when she was in the first grade, at age six or seven. R.M. also testified that the defendant would touch and lick her breast, butt and vagina, stick his tongue in her vagina, and stick his finger in her vagina. She also testified that this happened every night from the time she was in the first grade until the defendant moved out of her home when she was in the fourth grade. After he moved out, the longest period of time that lapsed without her seeing the defendant was three weeks and that he still continued to sexually molest her until August, 1989. R.M. also testified that on the first day of third grade, the defendant stuck his penis in her mouth.
During closing argument, the State argued as follows:
We do not have to prove that his tongue or his mouth penetrated her vagina; just that it came in contact with. But when it comes to his finger, there has to be penetration, and you can find either/or for each count.
During the jury charge, the trial court stated that the following instruction is applicable to all of the counts, except for Count XXI:
Number two element is: Francisco Pineiro committed an act upon [R.M.] in which the sexual organ of the victim had union with the mouth of the defendant or
Francisco Pineiro committed an act upon [R.M.] in which the vagina of [R.M.] was penetrated by an object, to wit: the defendant's finger.
Thereafter, the trial court instructed the jury as follows: " 'Union' is an alternative to penetration and means coming into contact [hereinafter referred to as the "union" instruction]." There were no defense objections to any of these instructions.
The jury returned its verdict. The clerk read the jury's verdict of guilt as to Count I. Thereafter, the trial court stated: The clerk polled the jury. All jurors agreed that that was their verdict. The defendant appealed.
The defendant contends that the trial court fundamentally erred in giving the jury the "union" instruction. Under the circumstances of this case, we disagree.
The defendant relies on Gill v. State, 586 So.2d 471 (Fla. 4th DCA 1991), but that case is factually distinguishable. In Gill, the trial court instructed the jury as to the same "union" instruction. Moreover, the prosecutor in its closing statement highlighted the "union" instruction. The Gill court found that in light of the prosecutor's argument which highlighted the "union" instruction, fundamental error occurred since the jurors were misled.
In the instant case, the "union" instruction could not have misled the jury. First, the State in its closing argument clearly explained to the jury that except for Count XXI, the State had to prove that the defendant either put his tongue or his mouth on the victim's vagina or that he penetrated her vagina with his finger. Second, just seconds before giving the "union" instruction, the...
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Russ v. State
...(Fla.1998), is exactly on point and so holds. See Hipp v. State, 650 So.2d 91 (Fla. 4th DCA 1995)(distinguishing Gill); Pineiro v. State, 615 So.2d 801 (Fla. 3d DCA 1993)(same); see also Weaver, 957 So.2d at 589; Abbott v. State, 958 So.2d 1140 (Fla. 4th DCA 2007); James v. State, 901 So.2d......
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Richards v. State
...end of the canal in the absence of a hymen would be sufficient to establish union with the vagina. Moreover, Pate cites Pineiro v. State, 615 So.2d 801 (Fla. 3d DCA 1993), and Stone, 547 So.2d 657, for the proposition that a defendant placing his tongue or mouth on, as opposed to in, the vi......
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Graves v. State, 96-3856
...focused only on the evidence of penetration, as to the count of the information alleging penetration. Compare Pineiro v. State, 615 So.2d 801 (Fla. 3d DCA 1993)("union" instruction could not have misled the jury where the prosecutor explained to the jury that penetration had to occur, and t......
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State v. Pate, 94-1353
...established that the defendant either put his tongue or his mouth on, as opposed to in, the victim's vagina. See, e.g., Pineiro v. State, 615 So.2d 801 (Fla. 3d DCA 1993); Stone v. State, 547 So.2d 657 (Fla. 2d DCA 1989). In Hodak v. State, 555 So.2d 1326 (Fla. 5th DCA 1990), this court aff......