Simmons v. State, 98-1010.
| Decision Date | 20 November 1998 |
| Docket Number | No. 98-1010.,98-1010. |
| Citation | 722 So.2d 862 |
| Parties | William Eugene SIMMONS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Terrence E. Kehoe of Law Office of Terrence E. Kehoe, and James M. Russ, of Law Office of James M. Russ, Orlando, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for appellee.
Simmons was convicted of two counts of committing a lewd act by having sexual intercourse with a child under sixteen and, because each child witnessed the sexual act being committed on the other, two counts of committing a lewd act in the presence of a child. He appeals contending that the commission of a sexual act on one child (section 800.04(3), Florida Statutes) cannot constitute the separate crime of committing a lewd and lascivious act in the presence of another child (section 800.04(4), Florida Statutes). We disagree.
We find State v. Hernandez, 596 So.2d 671 (Fla.1992), and Petersen v. State, 650 So.2d 223 (Fla. 5th DCA 1995), both inapplicable to this case. In Hernandez, the defendant committed a single act of masturbation in the presence of two children. In Petersen, the defendant exposed himself in the presence of three children. In each case, the defendant was charged with committing a single act which violated a single section of the statute. It was held in each case that the fact that there were multiple witnesses to the offense did not create multiple offenses. In our case, however, defendant was charged with committing two separate sex acts on a child prohibited by subsection (3) of section 800.04, each of which gave rise to a separate offense of lewd acts committed in the presence of a child under subsection (4) of the same statute. Hence, the same sexual act committed on victim one also constitutes a lewd act committed in the presence of victim two. This conclusion is consistent with the legislative direction contained in section 775.021(4), Florida Statutes, that separate convictions be entered for even a single act if the act violates separate criminal provisions.
Simmons also urges that his impeachment on a collateral issue was improper and that he is entitled to a new trial. Again, we disagree. The fourteen year old victims in this case testified that Simmons had provided them with cocaine on several occasions leading up to the sexual encounter at issue. On his direct examination, Simmons testified that not only did he not give the girls cocaine, he never dealt in cocaine nor did he associate with anyone who had. On crossexamination, Simmons was asked whether he knew Jeffery Rogers. Simmons admitted that Rogers had been arrested in Simmons' apartment where 169 grams of cocaine were recovered and that Simmons had entered a plea in the case. Simmons now urges that under Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981), such questions were improper. In Gelabert, this court quoted from Stewart v. State, 42 Fla. 591, 28 So. 815, 816 (1900):
But the answer of a witness on crossexamination respecting any fact irrelevant to the issue will be conclusive, and no such...
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Morris v. State
...800.04(4) was to proscribe lewd or lascivious acts perpetrated on a third party in the presence of a child. See Simmons v. State, 722 So.2d 862, 862 (Fla. 5th DCA 1998); Buggs v. State, 693 So.2d 57, 59 (Fla. 5th DCA 1997); Brinson v. State, 574 So.2d 298, 299 (Fla. 5th DCA 1991). Nothing o......