Russell v. State, 88-2846
| Decision Date | 13 March 1991 |
| Docket Number | No. 88-2846,88-2846 |
| Citation | 16 Fla. L. Weekly 706,576 So.2d 389 |
| Parties | 16 Fla. L. Weekly 706 Sean Charles RUSSELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Benedict P. Kuehne of Sonnett, Sale & Kuehne, P.A., Miami, for appellant.
Robert A. Butterworth, Atty. Gen., Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Sean Charles Russell appeals his judgment of conviction and sentence for sexual battery with force not likely to cause serious injury. We affirm the conviction, but we reverse and remand for correction of the sentence.
The appellant was charged by information with committing on or about January 8, 1988, sexual battery on a person twelve years of age or older with the use of physical force not likely to cause serious personal injury, contrary to section 794.011(5), Florida Statutes. Appellant admitted at trial that he engaged in sexual intercourse with the victim, but maintained that the intercourse was consensual. Appellant argues on appeal that the evidence adduced at trial was insufficient to prove the intercourse was accomplished by use of force and violence, and therefore, the evidence was insufficient to support the conviction.
The encounter between the victim and the appellant began, as appellant states, in an amicable way. The facts, which we recite only as necessary here, disclose that the alleged assault took place in the bedroom of appellant's town-house apartment off the campus of Florida State University. Earlier in the evening, the victim met appellant while visiting with mutual friends at a fraternity party, where she and appellant socialized and consumed alcoholic beverages. When the victim and her friends decided to leave the party, appellant, who had stated that his ride had already departed, was offered a ride home in the victim's car. The victim dropped off her girl friends first, then drove to appellant's apartment. Upon his invitation, the victim accompanied appellant into his apartment. There, they listened to music, talked, and, according to the victim, kissed once. At some point the victim asked to use the bathroom, whereupon appellant directed her to the upstairs bathroom. As the victim came out of the bathroom, appellant began kissing her, ignoring her repeated requests to stop, and then moved her into his bedroom, where the sexual battery took place. After the attack, the victim, crying hysterically, told the appellant he had raped her, and that she was going to tell everybody. She got dressed, drove away, and after becoming lost en route, eventually arrived at her sister's apartment where she fell to the floor crying. She was taken to the hospital, interviewed by the police, and examined by a medical doctor, who testified that his examination revealed a laceration of the posterior of the vagina consistent with forced intercourse.
In her testimony, the victim unequivocally stated that she repeatedly told the appellant to stop his advances, and tried to get away from him. She testified that he placed his body on top of her on the bed, that he was heavy, and that she was not able to get out from under him. While she continued to protest and told him to stop, he kept kissing her and placed his hand inside her pants, penetrating her digitally. At one point, the victim bit appellant's tongue, they then fell to the floor, and appellant moved back on top of her. Appellant then removed the victim's pants which were elastic and easily removable, and then penetrated her vaginally with his penis.
Appellant urges that there was insufficient evidence of lack of consent for the case to go to the jury. However, we determine that it was for the jury to evaluate the conflicting evidence as to whether or not the intercourse was consensual. To obtain a conviction of sexual battery under section 794.011(5), the state is obliged to prove that appellant committed an act upon or with the victim whereby the appellant's sexual organ or other object penetrated or had union with the vagina of the victim without her consent, by use of force not likely to cause serious injury. Under section 794.011(1)(a), consent must be "intelligent, knowing and voluntary" and cannot be "construed to include coerced submission."
Appellant argues that this is a case of sexual intercourse resulting from a "failure of communication" between the parties, and that lack of consent was not sufficiently established so as to become a jury issue since the victim did not clearly indicate her lack of consent in a manner which could be reasonably understood by the appellant. We do not agree. The victim's version of the events of the evening differs substantially from the account given by the appellant, and her version, if believed by the jury, as it obviously was, belies any notion that what occurred resulted from a mere failure of communication.
Appellant also asserts that "non-consensual sex, without using force and violence, is not enough to prove the crime charged." While we accept the proposition that implicit in the act of non-consensual sex is the use of force to some degree, under the definition of sexual battery contained in the statute, "force" means only that degree of power necessary to overcome any resistance. See Surace v. State, 378 So.2d 895, 899 (Fla. 3d DCA 1980) (Schwartz, Judge, specially concurring), cert. denied, 389 So.2d 1115 (Fla.1980) (), quoted with approval in Grunzel v. State, 484 So.2d 97, 98 (Fla. 1st DCA 1986), and Stone v. State, 547 So.2d 657, 658 (Fla. 2d DCA 1989); Hufham v. State, 400 So.2d 133, 134 (Fla. 5th DCA 1981) (). We find it indisputable that evidence of victim protestation and physical resistance appears in this record. This evidence presents a jury question on the issue of consent.
We find the fallacy in much of appellant's argument on appeal, so far as the...
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