Richards v. State, No. 97-01822.

CourtCourt of Appeal of Florida (US)
Writing for the CourtALTENBERND, Acting Chief.
Citation738 So.2d 415
Decision Date02 July 1999
Docket NumberNo. 97-01822.
PartiesGregg RICHARDS, Appellant, v. STATE of Florida, Appellee.

738 So.2d 415

Gregg RICHARDS, Appellant,
v.
STATE of Florida, Appellee

No. 97-01822.

District Court of Appeal of Florida, Second District.

July 2, 1999.

Rehearing Denied August 10, 1999.


738 So.2d 416
James Marion Moorman, Public Defender, Bartow, and Megan Olson, Assistant Public Defender, Clearwater, for Appellant

Robert A. Butterworth, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Acting Chief Judge.

Gregg Richards appeals his conviction for capital sexual battery based upon a charge that he digitally penetrated the vagina of a four-year-old girl. We reverse because under the particular circumstances of this case, Mr. Richards was entitled to an instruction clarifying the definition of vagina. Although this case is factually distinguishable, we disagree with the analysis in State v. Pate, 656 So.2d 1323 (Fla. 5th DCA 1995), and Bowden v. State, 642 So.2d 769 (Fla. 1st DCA 1994), which essentially equates the statutory term "vaginal" with "sexual organ." Under our current statute, sexual battery can occur when the defendant's mouth has "union" with the victim's "sexual organ," but the defendant's finger must actually "penetrate" the vagina. If the defendant's finger does not penetrate the vagina, but only touches the vulva, the crime would appear to be a lewd and lascivious act.1 Given that the crime of lewd and lascivious is a second-degree felony that can result in a sentence no longer than fifteen years' imprisonment, and capital sexual battery results in a sentence of lifetime incarceration, the jury should not be misled about the critical issue of anatomy.

I. THE FACTS

Mr. Richards was the boyfriend of the child's mother. In November 1991, he allegedly penetrated the girl's vagina with his finger on one occasion. This occurred while he was alone with the child watching television. Although the victim was interviewed at the time of the alleged offense, an information was not filed until February 1996. The State charged Mr. Richards with one count of capital sexual battery on a child less than twelve years of age in violation of section 794.011(2), Florida Statutes (1991). Oddly, the information contains language in addition to the statutory offense, alleging that he had committed the act "in a lewd, lascivious or indecent manner."2 The trial occurred in March 1997, and the jury returned a verdict of guilty as charged.

The evidence in this case, like that in many other sexual battery cases, involves little or no physical evidence of a crime and critical testimony from a small child who does not understand the nuances of anatomy. When interviewed in 1991, she claimed that Mr. Richards touched her "monkey." This was a term that her mother had taught her to describe her general "female area." A physician who examined her in 1991 found no evidence of damage to her hymen, but found redness and a swollen area on the inner aspect of the child's labia majora. His investigation neither established nor ruled out digital penetration of the vagina.

At the trial in 1997, the prosecutor and the State's examining physician used the phrase "vaginal area" during the State's case. The assistant state attorney asked

738 So.2d 417
whether the doctor had found evidence that the girl's "vaginal area" had been touched. The defense objected and attempted to require the doctor to testify using a distinction between the vagina and the vulva. By the end of the doctor's testimony, the distinction was quite muddled. Finally, the doctor testified
Okay. The medical definition usually refers to the opening of the canal itself and its extension back up to the cervix and the uterus. General terms, when the vagina or vaginal area is referred to, it's generally accepted, I believe, that it includes the labia majora, the labia minora, the clitoris, the urethra, the hymen, the tissues that surround and encompass the opening to the canal itself.

The defense objected to this testimony because it intermingled the relevant definition of vagina with other portions of the anatomy. The court overruled the objection and added that counsel could address the issue on re-cross.

At the conclusion of the case, the defense requested an instruction that provided an accurate definition of vagina and distinguished between the vulva and the vagina. This proposed written instruction was denied.

Exacerbating this problem, during closing arguments, the State belittled the defense's efforts to draw a distinction between the vagina and the vulva. When the defense attorney tried to explain to the jury that they must find that the defendant placed his finger inside the vagina and not merely the vaginal area, the prosecutor objected that this was a "misquote" of the law. The trial court did not rule on this objection but told the jury that it would instruct them on the law. In the State's rebuttal, the prosecutor argued:

The defense wants you to rely on this medical definition. All these charts and these graphs, what do you think? Why do you think he wants you to rely on that? What's his defense, folks? [objection made and overruled at this point] Folks, think about what the defense is. Their defense is not even consistent with logic. If you heard him, he says, first you've got to not believe the victim.... Then he says, well, if he did it, if he did it, I want you to rely on this medical definition. I want you, folks, to ignore common sense of what a vagina is. And I want you to rely on this medical definition. Because it's going to make it harder to prove penetration
. . . .

The jury returned a verdict as charged, and Mr. Richards appealed his conviction and life sentence to this court.

II. THE LAW

As defined by statute, "[t]he term `sexual battery' means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose." §...

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27 practice notes
  • In re Keeley, Interim Decision #3907
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • October 20, 2017
    ...District of Columbia, D.C. Code Ann. § 22-4101(8)(B) (1996); (6) Florida, Fla. Stat. Ann. § 794.011(1)(h) (West 1996); Richards v. State, 738 So. 2d 415, 418 (Fla. Dist. Ct. App. 1999); State v. Pate, 656 So. 2d 1323, 1325 (Fla. Dist. Ct. App. 1995); (7) Illinois, 720 Ill. Comp. Stat. 5/12-......
  • 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
    ...1170 (Fla. 1stPage 42DCA 1987)("any penetration, no matter how slight, constitutes a completed sexual battery."); Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999)("Union permits a conviction based on contact with the relevant portion of anatomy, whereas penetration requires some ent......
  • People v. Paz, B265251
    • United States
    • California Court of Appeals
    • April 14, 2017
    ...her tongue "on" the defendant's anus was insufficient to establish slight penetration of the anus]; Richards v. State (Fla.Ct.App. 1999) 738 So.2d 415, 418 [in statute phrased in the alternative, "union" requires "contact with the relevant portion of anatomy, whereas penetration requires so......
  • Martin v. Sec'y Dep't of Corr., 4:20cv507/TKW/EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • September 7, 2021
    ...that even the cases cited by the defense, the first one being-and I know we are not going all into it, but Richards v, State, which is at 738 So.2d 415, says at the we emphasize that we are not holding that an instruction defining vagina is required in every digital penetration case. It was......
  • Request a trial to view additional results
26 cases
  • In re Keeley, Interim Decision #3907
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • October 20, 2017
    ...District of Columbia, D.C. Code Ann. § 22-4101(8)(B) (1996); (6) Florida, Fla. Stat. Ann. § 794.011(1)(h) (West 1996); Richards v. State, 738 So. 2d 415, 418 (Fla. Dist. Ct. App. 1999); State v. Pate, 656 So. 2d 1323, 1325 (Fla. Dist. Ct. App. 1995); (7) Illinois, 720 Ill. Comp. Stat. 5/12-......
  • 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
    ...1170 (Fla. 1stPage 42DCA 1987)("any penetration, no matter how slight, constitutes a completed sexual battery."); Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999)("Union permits a conviction based on contact with the relevant portion of anatomy, whereas penetration requires some ent......
  • People v. Paz, B265251
    • United States
    • California Court of Appeals
    • April 14, 2017
    ...her tongue "on" the defendant's anus was insufficient to establish slight penetration of the anus]; Richards v. State (Fla.Ct.App. 1999) 738 So.2d 415, 418 [in statute phrased in the alternative, "union" requires "contact with the relevant portion of anatomy, whereas penetration requires so......
  • Martin v. Sec'y Dep't of Corr., 4:20cv507/TKW/EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • September 7, 2021
    ...that even the cases cited by the defense, the first one being-and I know we are not going all into it, but Richards v, State, which is at 738 So.2d 415, says at the we emphasize that we are not holding that an instruction defining vagina is required in every digital penetration case. It was......
  • Request a trial to view additional results

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