State v. Pate, 94-1353
| Decision Date | 02 June 1995 |
| Docket Number | No. 94-1353,94-1353 |
| Citation | 656 So.2d 1323 |
| Parties | 20 Fla. L. Weekly D1324 STATE of Florida, Appellant, v. Joseph Thomas PATE, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca Roark Wall, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender, and Daisy G. Clements, Asst. Public Defender, Daytona Beach, for appellee.
The state appeals from an order granting the defendant's motion for arrest of judgment on Count IV of the information.
The defendant was charged by fourth amended information with four counts of capital sexual battery (Counts I-IV) and one count of lewd and lascivious assault (Count V). In particular, Count IV charged that the defendant committed sexual battery upon a person less than 12 years of age by "causing his mouth to unite with the [victim's] vagina in violation of Florida Statute 794.011(2)."
At trial, the child victim testified that the defendant, her father, had been touching and rubbing her private area and that this had been going on for "a long, long time." Several incidents related by the child involved the defendant rubbing his penis on the victim's vagina. Other incidents concerned oral sex, which the child described as the defendant "put his mouth on my private and would suck on it," "would lick it." The child stated that what she calls her "front private" is really her vagina, and that her mother explained the facts of life to her. She recounted numerous occasions in which the defendant placed his mouth or tongue on her outer vagina (not in her vagina), touching her "skin to skin."
Dr. Saha, a pediatrician who works as part of the Child Protection Team, testified for the state. When the prosecutor asked Dr. Saha for the commonly accepted definition of the term "vagina," he testified that vagina "includes not only the internal part but the outer part, which is also called the vulva, which consists of labia majora, labia minora, and clitoris."
On cross-examination, defense counsel asked Dr. Saha if he agreed with the medical dictionary definition of vagina which defined it as a "muscular membrane tube which forms the passageway between the cervix, uteri, and the vulva." Dr. Saha agreed with the technical, medical definition. However, he added "But I think for practical purposes this entire area is referred to as the vagina." On re-direct examination, Dr. Saha again reiterated that "[t]he common, ordinary meaning of the vagina is the vulva, which is the outer part of the genitalia and the inner part of the genitalia, the birth canal."
The theory of defense as to Count IV rested on the defendant's claim that the term "vagina" has a technical, medical meaning. After the state rested, defense counsel moved unsuccessfully for a judgment of acquittal and argued that the state failed to prove union with the victim's "vagina" according to the technical, medical definition.
The jury returned verdicts of guilty of attempted capital sexual battery for Counts I and III, 1 and guilty as charged to Count IV, capital sexual battery and Count V, lewd and lascivious assault. The trial court sentenced the defendant to 15 years imprisonment on each of Counts I and III, and 10 years imprisonment for Count V, all to run concurrent to the life sentence with no chance for parole for 25 years which was mandatory for Count IV.
The defendant filed a motion for arrest of judgment and a motion for a new trial. The trial court held a hearing on the motions and defense counsel argued that the state had failed to prove capital sexual battery because the technical, medical definition of "vagina" is strictly limited solely to that area between the cervix and the vulva--the area commonly known as the birth canal. After hearing argument, the trial judge granted the motion for arrest of judgment as to Count IV. The order states that
the testimony of the victim and of the state's medical expert witness failed to prove that the defendant's mouth united with the victim's vagina as vagina is medically defined. The victim's testimony established that the defendant's oral contact with her was limited to her vulva, consisting of the labia majora and labia minora. As defined in Taber's Cyclopedic Medical Dictionary, 783 (14th ed. 1982), "neither the labia majora nor the labia minora are part of the vagina." Firkey v. State, 557 So.2d 582 (Fla. 4th DCA 1989). Therefore, the State has failed to specifically prove the allegation in the information that the Defendant's mouth united with the victim's vagina.
The order continues that for this reason "the Court finds that the Defendant was convicted of an offense for which the Defendant could not be convicted under the indictment or information under which the Defendant was tried." The state appeals and we reverse.
The state argues that the trial court erred in: (1) adopting a technical, medical definition of the term "vagina" when the legislature intended the term be given its commonly understood meaning, and (2) granting the motion to arrest judgment when the defendant failed to raise the issue pretrial by challenging the information.
The defendant responds that the trial court correctly relied on the medical definition of vagina and correctly concluded that under this definition, the evidence did not establish the offense charged in Count IV.
Section 794.011, Florida Statutes provides the following definition of "sexual battery":
(1)(h) "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.
Pursuant to this definition, the state is not required to prove penetration in order to establish a sexual battery. Rather, "oral ... union with, the sexual organ of another ..." constitutes sexual battery. 2 The instant information charged union between the defendant's mouth and the victim's "vagina."
Vagina, as defined in medical dictionaries, is "a musculomembrane tube which forms the passageway between the cervix uteri and vulvae." Taber's Cyclopedia Medical Dictionary, 783 (14th Ed.1982); accord Dorland's Illustrated Medical Dictionary, 1433 (26th Ed.1985). Under this strict medical definition of vagina, the only way the vagina could be reached is by penetration. However, subsection 794.011(1)(h) speaks of "vaginal penetration by, or union with, the sexual organ of another." The First District has explained the term "vagina" in holding that contact alone between the defendant's penis and the child victim's vagina is sufficient to constitute capital sexual battery. Bowden v. State, 642 So.2d 769 (Fla. 1st DCA 1994), rev. denied, 651 So.2d 1192 (Fla.1995); Dorch v. State, 458 So.2d 357 (Fla. 1st DCA 1984). In Bowden, the court explained:
This court, in Dorch v. State, 458 So.2d 357, 358 (Fla. 1st DCA 1984), has observed:
[I]t is clear that the Legislature intended that "union" mean something other than penetration.... [C]ontact alone, between the sexual organ of the offender and the mouth, anus, or vagina of the victim, is sufficient to convict.
It has further been observed, that:
The legislature kept the "private parts" concept of rape by specifying that sexual battery occurs upon "vaginal penetration by, or a union with, the sexual organ of another." The phrase "union with" continues the concept that any penetration by a male's private organ of any part of a female's private parts also constitutes a crime." Firkey v. State, 557 So.2d 582, 585 (Fla. 4th DCA 1989).
The foregoing observations indicate that although the term "vagina," may have a very definite medical meaning, the word as used in the statute is a term of art, which connotes "a female's private parts." Thus, where the male offender is charged with committing sexual battery by penile union or penetration, the statute is broad enough to contain within its prohibition penetration or union with the female victim's sexual organ.
642 So.2d at 770-771. See also Heuss v. State, 20 Fla.L.Weekly D660, --- So.2d ---- (Fla. 4th DCA March 15, 1995).
This analysis of the term "vagina" is correct. To adopt the medical definition of vagina would mean there could never be "union" with the vagina without penetration. This would render the language of section 794.011(1)(h) illogical and absurd. Numerous capital sexual battery convictions have been upheld where the defendant is charged with placing his mouth and/or tongue in union with...
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