Gay v. State

607 So. 2d 454, 1992 WL 235286
CourtDistrict Court of Appeal of Florida
DecidedSeptember 25, 1992
Docket90-2751
StatusPublished
Cited by13 cases

This text of 607 So. 2d 454 (Gay v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gay v. State, 607 So. 2d 454, 1992 WL 235286 (Fla. Ct. App. 1992).

Opinion

607 So.2d 454 (1992)

John Davenport GAY, Appellant,
v.
STATE of Florida, Appellee.

No. 90-2751.

District Court of Appeal of Florida, First District.

September 25, 1992.
Rehearing Denied December 2, 1992.

*456 Nancy A. Daniels, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.

MINER, Judge.

Between October 10, 1989 and January 4, 1990, appellant, John Davenport Gay, was charged in 17 different informations containing a total of 88 counts alleging various sex offenses committed on at least 9 grammar school age boys. A jury trial on some of the offenses resulted in guilty verdicts of seven counts of lewd and lascivious acts upon a child, one count of sexual battery on a child under 12 and two counts of kidnapping. On another count charging capital sexual battery, the jury found Gay guilty of attempted sexual battery and on another count, guilty of an attempted lewd act in the presence of a child. Appellant was acquitted on three counts charging lewd and lascivious acts in the presence of children.

After his jury trial, appellant entered nocontest pleas to numerous of the charged offenses and others were nolle prossed. He was subsequently sentenced to two consecutive life sentences to be followed by three concurrent life sentences and an additional 245 years concurrent incarceration on the lesser charges.

Urging four points on appeal, appellant challenges all his convictions. On the record before us, we find no merit in any of the issues raised by appellant and affirm his convictions.

Appellant contends that the trial court reversibly erred in the following respects: (1) in denying appellant's motion to suppress the photos of J.Y. and B.B. found in appellant's camera case; (2) in denying appellant's motion for judgment for acquittal of the offense of capital sexual battery on the child, F.B.; (3) in denying appellant's motion for judgment for acquittal of the offenses of kidnapping of J.Y. and B.B.; and (4) in admitting pedophile profile testimony by an expert witness. To promote ease of understanding and so as not to burden the state's jurisprudence with lurid and superfluous factual details, we will deal with each issue raised by appellant in a separate sub-heading and recount only those facts of record necessary to place the issue discussed in proper context.

THE KIDNAPPING ISSUE

Appellant, apparently an accomplished photographer, was also employed at a business establishment that specialized in the rental of movie videos. Mr. and Mrs. Y, the parents of J.Y., a ten-year old boy, were frequent patrons of the business and, on occasion, would take J.Y. with them on these visits. It was during these times that appellant came to know J.Y. and his parents. In time, appellant began to visit the Y's at their home and beginning in January of 1989, he asked for and received permission from Mr. and Mrs. Y to take J.Y. out to get hamburgers, to go swimming or to participate in other like activities.

On October 1, 1989, appellant stopped by the Y's home to ask J.Y. if he wanted to go swimming at a pool on the campus of the University of West Florida (UWF). In appellant's presence, J.Y. asked his parents for permission to go swimming with appellant. The parents agreed and J.Y. left with appellant. After appellant and J.Y. got into appellant's car, appellant asked the boy if he wanted to invite one of his young friends to go swimming with them. J.Y. wanted to ask B.B. and the two drove to B.B.'s house. B.B.'s mother was not at home so J.Y. asked for and received permission from B.B.'s father for B.B. to go with them to the UWF pool. That evening, Mr. and Mrs. Y received a phone call from *457 B.B.'s mother alerting them to the possibility of improper conduct on appellant's part, based upon what she had been told by B.B. of the events of that afternoon. The following day, the two boys were taken by their parent(s) to the police station at the campus of the UWF. They were interviewed and told Officer Thomas Johnson that appellant had fondled their genital areas the previous day in a wooded area known as the "nature trail" located on the UWF campus.

The kidnapping charges of which the appellant was convicted stemmed from his taking the two children from the pool area where they had parental permission to go swimming to a spot on the nature trail where he allegedly subjected the boys to felonious sexual indignities, which offenses included taking nude photographs of them.

Acknowledging that the nature trail may have been the site of a lewd act, appellant maintains that he did not kidnap the boys but merely "deviated" from his plan to take them to the pool. He recounts that on a previous occasion when he had permission to take J.Y. swimming at the UWF pool, the two had to go swimming elsewhere because the UWF pool was closed. On another occasion when he had permission to take J.Y. to the UWF pool, he took the boy to a McDonald's for something to eat after their swim. He argues that on these occasions, J.Y.'s parents did not know precisely where the child was at all times during the excursion and did not specifically give their approval to what he characterizes as a "slight deviation" from the day's plans. Thus, he contends that on the day in question, the "slight deviation" from the public pool area to the wooded nature trail did not amount to kidnapping.

The state counters that J.Y.'s mother testified at trial that she only gave her permission for J.Y. to go swimming at the UWF pool. Further, J.Y. testified that when appellant asked him and B.B. to go from the pool to the nature trail, he (J.Y.) did not want to go because he did not know if he had permission to do so. The boy also testified that appellant told him if he did not come along with them he would have to sit in the car until appellant and B.B. returned. Only then did J.Y. relent and go with appellant and B.B.

At the end of the state's case and again at the conclusion of the trial, appellant unsuccessfully moved for a judgment of acquittal on the kidnapping counts. In so doing, he admitted the facts adduced in evidence and every conclusion favorable to the state which is fairly and reasonably inferable therefrom. Spinkellink v. State, 313 So.2d 666, 670 (Fla. 1975) (footnote ommitted). Where the state has produced competent evidence to support every element of the crime, a judgment of acquittal is not proper. Anderson v. State, 504 So.2d 1270 (Fla. 1st DCA 1986) (citing Newton v. State, 490 So.2d 179, 180 (Fla. 1st DCA 1986)).

Section 787.01, Florida Statutes (1989), provides, in pertinent part:

(1)(a) The term "kidnapping" means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
* * * * * *
(1)(a)2. Commit or facilitate commission of any felony.
* * * * * *
(1)(b) Confinement of a child under the age of 13 is against his will within the meaning of this subsection if such confinement is without the consent of his parent or legal guardian.

Thus, in order to withstand the motion for judgment of acquittal below, the state must have presented evidence to show appellant: (1) forcibly, secretly, or by threat (2) confined, abducted or imprisoned [the children] with (3) the intent to commit or facilitate commission of any felony. In the case at bar, the critical questions raised are: were J.Y. and B.B.

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Cite This Page — Counsel Stack

Bluebook (online)
607 So. 2d 454, 1992 WL 235286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gay-v-state-fladistctapp-1992.