Summary
holding that defendant's rubbing of his erect penis on the victim's clothed back in violation of section 800.04 constituted sexual contact for purposes of assessing victim injury points
Summary of this case from Seagrave v. StateOpinion
No. 5D99-1512
Opinion Filed June 23, 2000 JANUARY TERM 2000
Appeal from the Circuit Court for Sumter County, Hale R. Stancil, Judge.
James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.
Robert Charles Blackburn appeals his conviction and sentence for one count of lewd and lascivious assault upon a child under 16 years of age. § 800.04(1), Fla. Stat. (1997). We affirm the conviction.
Blackburn stalked the victim in a department store before approaching him from the rear, grabbing him by the shoulders, and rubbing his erect penis on the victim's clothed back. The record does not indicate whether Blackburn was also fully clothed at the time of the event, but the location of the event would imply that he was. Blackburn contends that he should not have been assessed victim injury points for sexual contact and relies upon our decisions in Reyes v. State, 709 So.2d 181 (Fla. 5th DCA 1998) and Spioch v. State, 742 So.2d 817 (Fla. 5th DCA 1999). This court receded from these cases in Kitts v. State, 2000 WL 553926, (Fla. 5th DCA May 5, 2000). Kitts requires our affirmance.
AFFIRM CONVICTION.
SHARP, W., PETERSON and GRIFFIN, JJ., concur.