State v. Werner, No. 78371

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; BARKETT
Citation609 So.2d 585
Decision Date05 November 1992
Docket NumberNo. 78371
Parties17 Fla. L. Weekly S678 STATE of Florida, Petitioner, v. Martin WERNER, Respondent.

Page 585

609 So.2d 585
17 Fla. L. Weekly S678
STATE of Florida, Petitioner,
v.
Martin WERNER, Respondent.
No. 78371.
Supreme Court of Florida.
Nov. 5, 1992.
Rehearing Denied Jan. 5, 1993.

Robert A. Butterworth, Atty. Gen., and Joan Fowler, Asst. Atty. Gen., West Palm Beach, for petitioner.

Bruce Rogow and Beverly A. Pohl, Fort Lauderdale, for respondent.

Sharon L. Wolfe, Cooper & Wolfe, P.A., Miami, amicus curiae, for The Guardian Ad Litem Program, Eleventh Judicial Circuit.

Nancy S. Palmer and Martha Michael Gates, Orlando, amicus curiae, for The Family Law Section of The Florida Bar, N. David Korones, Chairman and Wayne Boyer, Chairman, Amicus Curiae Committee.

PER CURIAM.

We have for review Werner v. State, 590 So.2d 431, 435 (Fla. 4th DCA 1991), in which the Fourth District Court of Appeal certified the following question to be of great public importance:

DOES THE STATE HAVE TO PROVE THAT THE VICTIM SAW OR SENSED THE LEWD OR LASCIVIOUS ACT IN THE PROSECUTION OF A DEFENDANT CHARGED UNDER SECTION 800.04(3), FLORIDA STATUTES (1987)?

Page 586

We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution, and we answer the question in the affirmative.

Martin Werner and his wife were sleeping when their thirteen-month-old daughter woke up. When the wife asked Werner to care for the child, he took his daughter into the bathroom. After half an hour, the wife knocked on the locked bathroom door. When Werner unlocked the door, the wife found the child sitting on the bathroom floor. Werner told his wife that he had been masturbating while caring for the child.

The State charged Werner with violating section 800.04(3), Florida Statutes (1987). This statute provides in pertinent part that any person who "[k]nowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree." Sec. 800.04(3), Fla.Stat. (1987) (emphasis added).

At trial, defense counsel moved for a judgment of acquittal based upon the argument that "as a matter of law ... when [the legislature] passed this statute about committing a lewd or lascivious act in the presence of, they're talking about a child seeing something." The prosecutor argued that "the State does not have to prove in any way, fashion or form that the child perceived the act of masturbation. All the State has to prove was [sic] the fact that the defendant masturbated in front of the child." The trial judge agreed with the State and denied Werner's motion. The jury convicted Werner of indecent assault for committing a lewd or lascivious act in the presence of his daughter, and the judge sentenced him to eleven years' probation, and one year to be served in the Broward County Jail. The trial court also ordered Werner to submit to counseling and have no contact with the child until completion of counseling, recommendation of the counselor, and a full hearing before the court.

The Fourth District Court of Appeal found that a violation of section 800.04(3) cannot occur unless a child sees or senses that a lewd or lascivious act is occurring, although the child's perception does not have to include comprehension of the nature of the act. Werner, 590 So.2d at 434. The district court determined that the State's evidence as to this element of the offense was circumstantial and susceptible to two reasonable hypotheses, one of which indicated Werner's innocence. Concluding that the jury had insufficient evidence to convict Werner, the district court reversed Werner's conviction and vacated the...

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24 practice notes
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...to the very language at issue in the present case, then codified as section 800.04(3), Florida Statutes (1987). See State v. Werner, 609 So.2d 585, 586 (Fla.1992) (construing "lewd or lascivious act in the presence of any child"). There "Werner told his wife that he had been masturbating wh......
  • Ward v. State, No. 93-920
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 1994
    ...denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972); Duvallon v. State, 404 So.2d 196 (Fla. 1st DCA 1981). Cf. State v. Werner, 609 So.2d 585 (Fla.1992); State v. Davis, 623 So.2d 622 (Fla. 4th DCA 1993); Joel E. Smith, J.D., Annotation, What Constitutes "Public Place" within Meaning......
  • In re Standard Jury Instructions in Criminal Cases—Report 2019-09, No. SC19-1696
    • United States
    • United States State Supreme Court of Florida
    • January 16, 2020
    ...acts described above was committed or attempted or a person who has reported these acts to a law enforcement officer.See State v. Werner, 609 So.2d 585 (Fla. 1992)."In the presence of" means that a victim saw, heard, or otherwise sensed that the act was taking place.§ 800.04(2), Fla. Stat.N......
  • In re Standard Jury Instructions in Criminal Cases-Report Number, No. SC14–2507.
    • United States
    • United States State Supreme Court of Florida
    • October 8, 2015
    ...acts described above was committed or attempted or a person who has reported these acts to a law enforcement officer.See State v. Werner, 609 So.2d 585 (Fla.1992).“In the presence of” means that a victim saw, heard, or otherwise sensed that the act was taking place.§ 800.04(2), Fla. Stat.Ne......
  • Request a trial to view additional results
24 cases
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...to the very language at issue in the present case, then codified as section 800.04(3), Florida Statutes (1987). See State v. Werner, 609 So.2d 585, 586 (Fla.1992) (construing "lewd or lascivious act in the presence of any child"). There "Werner told his wife that he had been masturbating wh......
  • Ward v. State, No. 93-920
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 1994
    ...denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972); Duvallon v. State, 404 So.2d 196 (Fla. 1st DCA 1981). Cf. State v. Werner, 609 So.2d 585 (Fla.1992); State v. Davis, 623 So.2d 622 (Fla. 4th DCA 1993); Joel E. Smith, J.D., Annotation, What Constitutes "Public Place" within Meaning......
  • In re Standard Jury Instructions in Criminal Cases—Report 2019-09, No. SC19-1696
    • United States
    • United States State Supreme Court of Florida
    • January 16, 2020
    ...acts described above was committed or attempted or a person who has reported these acts to a law enforcement officer.See State v. Werner, 609 So.2d 585 (Fla. 1992)."In the presence of" means that a victim saw, heard, or otherwise sensed that the act was taking place.§ 800.04(2), Fla. Stat.N......
  • In re Standard Jury Instructions in Criminal Cases-Report Number, No. SC14–2507.
    • United States
    • United States State Supreme Court of Florida
    • October 8, 2015
    ...acts described above was committed or attempted or a person who has reported these acts to a law enforcement officer.See State v. Werner, 609 So.2d 585 (Fla.1992).“In the presence of” means that a victim saw, heard, or otherwise sensed that the act was taking place.§ 800.04(2), Fla. Stat.Ne......
  • Request a trial to view additional results

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