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479 So. 2d 266

479 So.2d 266

10 Fla.L.Weekly 2675

Docket No. 85-464.

Perez v. State

Mannie Wilfredo PEREZ, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided December 5, 1985.

District Court of Appeal of Florida · decided 1985-12-05

Key passage — most relied on by later courts

“The term "physically helpless" means that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act.”

quoted by 2 later decisions, including Norman v. State, 616 So. 2d 1017 - Coley v. State

“The jury heard some evidence that the victim communicated her unwillingness to act. However, the victim also testified that Perez hit her in the face breaking her nose and causing much bleeding to occur before she was sexually battered. Thus, the jury heard some evidence which established that the victim was physically unable to effectively communicate her unwillingness to the act. On appeal, the Perez court concluded that there was substantial, competent evidence from which a jury could find the victim was”

quoted by 1 later decision, including 616 So. 2d 1017 - Coley v. State

Relies on Tibbs v. Florida · 412 So. 2d 461 - Swartz v. Swartz · 397 So. 2d 1120 - Tibbs v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1985-12-05

How this case has been cited

Cited by 6 later decisions — most recently August 2018

6 state decisions

301985199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*267 James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3COWART, Judge.

¶4This is an appeal from a final judgment adjudicating Perez guilty of a sexual battery under section 794.011(4)(a), Florida Statutes. One essential constituent element of this particular statutory offense is that the victim was "physically helpless"[1] when the sexual battery occurred. Perez moved for a judgment of acquittal on the ground that the State failed to prove that the victim was physically helpless. The trial court's denial of this motion is the point on this appeal.

¶5Some evidence was presented to the jury that the victim did communicate her unwillingness to participate in any act. However, the victim testified that Perez hit her in the face breaking her nose and causing much bleeding to occur before committing sexual battery upon her person. Therefore, there was evidence from which the jury could find that the severe blow to her face rendered the victim physically unable to effectively communicate her unwillingness to the act.

¶6Whether a victim was "physically unable to communicate his unwillingness"[2] and thus was "physically helpless to resist"[3] are factual questions for the jury. McIlwain v. State,402 So.2d 1194 (Fla. 5th DCA 1981), rev. denied,412 So.2d 467 (Fla. 1982).

¶7The jury found beyond a reasonable doubt that, at the time of her sexual battery, the victim was "physically helpless to resist." There was substantial competent evidence to support that conclusion. We do not have the authority to re-weigh or re-evaluate the evidence. Tibbs v. State,397 So.2d 1120 (Fla. 1981), aff'd, Tibbs v. Florida,457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

¶8The judgment of conviction is affirmed.

¶9DAUKSCH and ORFINGER, JJ., concur.

NOTES

¶10[1] Section 794.011(4)(a) makes it a first degree felony to commit sexual battery upon a person over eleven years of age, without that person's consent "when the victim is physically helpless to resist." Section 794.011(1)(d) defines "physically helpless" to mean "that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act."

¶11[2] § 794.011(1)(d), Fla. Stat.

¶12[3] § 794.011(4)(a), Fla. Stat.

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