Watkins v. State, No. 1D09-2332.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | PER CURIAM |
| Citation | 48 So.3d 883 |
| Decision Date | 29 November 2010 |
| Docket Number | No. 1D09-2332. |
| Parties | Kevin WATKINS, Appellant, v. STATE of Florida, Appellee. |
Kevin WATKINS, Appellant,
v.
STATE of Florida, Appellee.
No. 1D09-2332.
District Court of Appeal of Florida,
First District.
Oct. 13, 2010.
Rehearing Denied Nov. 29, 2010.
William Mallory Kent of the Law Office of William Kent, Jacksonville, for Appellant.
Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Kevin Watkins appeals his convictions and sentences for two counts of sexual battery by a person with familial authority when the victim was between 12 and 18 years old, under section 794.011(8)(b), Florida Statutes. We reject appellant's first two arguments and affirm the conviction and sentence for Count I, but we reverse the conviction and sentence for Count II, because the state failed to prove anal penetration.1
The victim testified that she had to pull the back of defendant's pants down and "lick his butt cheeks, crack and anus." The prosecutor asked, "When you licked his anus was your tongue actually on his anus, in his anus?", and she replied, "On it, yes." She also said that defendant would position himself so that she had to lick his genitals as well as his anus. There was no evidence that the victim put her tongue in defendant's anus, even slightly. See, e.g., Furlow v. State, 529 So.2d 804 (Fla. 1st DCA 1988) (reversing conviction and sentence because the record failed to establish that the defendant's finger actually penetrated the victim's vagina, required under the definition of sexual battery).
Section 794.011(1)(h) provides: " '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 [.]" (Emphasis added.) The supreme court has cautioned that the legislature intended that the terms "union" and "penetration" be applied with precision when determining whether conduct constitutes sexual battery. "Union permits a conviction based on contact with the relevant portion of anatomy, whereas penetration requires some entry into the relevant part, however slight.' " Seagrave v. State, 802 So.2d 281, 287 n. 7 (Fla.2001) (quoting Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999)). The Second District in Richards "translated" the language of section 794.011(1)(h), finding four offenses encompassed therein. With regard to the language that applies in our case, the court translated it as providing: "It is illegal for a man or woman to place any object inside the anus or vagina of the victim." Richards, 738 So.2d at 418.
"The statute is not violated by proof of union with an object in the absence of penetration." Gill v. State, 586 So.2d 471, 472 (Fla. 4th DCA 1991). See Johnson v. State, 632 So.2d 1062 (Fla. 5th DCA 1994)...
To continue reading
Request your trial
-
People v. Paz, B265251
...refer to either penetration of the anal opening or contact with the anus, but not both. (See, e.g., Watkins v. State (Fla.Ct.App. 2010) 48 So.3d 883, 884 [evidence the victim placed her tongue "on" the defendant's anus was insufficient to establish slight penetration of the anus]; Richards ......
-
In re B.H., No. 2013–364–Appeal
...(“[P]enetration of the buttocks, but not the anus, does not meet the ordinary meaning of ‘sexual intercourse.’ ”); cf. Watkins v. State, 48 So.3d 883, 884 (Fla.Dist.Ct.App.2010) (holding that evidence that the complainant placed her tongue “on” the defendant's anus was insufficient to estab......
-
In re B.H., No. 2013-364-Appeal.
...("[P]enetration of the buttocks, but not the anus, does not meet the ordinary meaning of 'sexual intercourse.'"); cf. Watkins v. State, 48 So.3d 883, 884 (Fla. Dist. Ct. App. 2010) (holding that evidence that the complainant placed her tongue "on" the defendant's anus was insufficient to es......
-
Henry v. State, No. 4D16–1708
...penetration by a male's sexual organ; and anal or vaginal pen229 So.3d 394etration(mere "union" is insufficient, see Watkins v. State, 48 So.3d 883, 884 (Fla. 1st DCA 2010) ) by "any other object." Thus, the penetration of a victim's vagina by a pencil is covered; the union of another perso......
-
People v. Paz, B265251
...refer to either penetration of the anal opening or contact with the anus, but not both. (See, e.g., Watkins v. State (Fla.Ct.App. 2010) 48 So.3d 883, 884 [evidence the victim placed her tongue "on" the defendant's anus was insufficient to establish slight penetration of the anus]; Richards ......
-
In re B.H., No. 2013–364–Appeal
...(“[P]enetration of the buttocks, but not the anus, does not meet the ordinary meaning of ‘sexual intercourse.’ ”); cf. Watkins v. State, 48 So.3d 883, 884 (Fla.Dist.Ct.App.2010) (holding that evidence that the complainant placed her tongue “on” the defendant's anus was insufficient to estab......
-
In re B.H., No. 2013-364-Appeal.
...("[P]enetration of the buttocks, but not the anus, does not meet the ordinary meaning of 'sexual intercourse.'"); cf. Watkins v. State, 48 So.3d 883, 884 (Fla. Dist. Ct. App. 2010) (holding that evidence that the complainant placed her tongue "on" the defendant's anus was insufficient to es......
-
Henry v. State, No. 4D16–1708
...penetration by a male's sexual organ; and anal or vaginal pen229 So.3d 394etration(mere "union" is insufficient, see Watkins v. State, 48 So.3d 883, 884 (Fla. 1st DCA 2010) ) by "any other object." Thus, the penetration of a victim's vagina by a pencil is covered; the union of another perso......