final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Karen Miller, Judge; L.T. Case No.
Haughwout, Public Defender, and Siobhan Helene Shea, Special
Assistant Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for
Francisco Henry was charged, along with a co-defendant, of
forcing four teenagers at gunpoint to surrender their
personal items and involuntarily engage in multiple sexual
acts with each other. He was found guilty of four counts of
false imprisonment, three counts of robbery with a firearm,
and seventeen counts of sexual battery with a firearm. He
raises ten issues on appeal. We affirm the trial court on
eight of these challenges without discussion. This opinion is
limited to discussing Appellant's contentions that: (1)
assuming he was at the crime scene, the trial court erred by
denying his motion for judgment of acquittal because there
was insufficient evidence that he performed or ordered any of
the sex acts or threatened or pointed a gun at anyone, and
(2) the trial court's decision is flawed in finding
seventeen counts of sexual battery with a firearm, as the
evidence at best only supports nine counts. As set forth
below, we affirm the trial court on all issues.
high school students (three males, one female) were playing
cards and smoking marijuana in an abandoned house. A man
("the co-defendant") joined them in playing cards
and texting until Appellant arrived. The co-defendant
produced a gun and ordered the victims to put their
possessions on a table. He ordered the female student to
remove her pants, and he penetrated her vagina with a pencil.
The co-defendant and Appellant took turns holding the gun
while they forced the students to perform eight nonconsensual
sex "scenes" with each other in various pairings
(the term scene is used rather than act, as
there were two acts/actions and two victims involved within
each of the eight scenes). Eventually, a third man entered
the house, confronted Appellant and the co-defendant, and
told the victims to leave.
first count of sexual battery was for the co-defendant's
act of penetrating the female victim's vagina with a
pencil. The other sixteen counts of sexual battery were based
on the eight sex scenes. Each sex scene involved two victims;
thus generating one count for each victim. For example,
counts two and three involve one of the boys being forced to
perform oral sex on the girl. Count two named the girl as the
victim, and count three named the boy. As noted above,
Appellant was convicted of seventeen counts of sexual
Appellant's motion for judgment of acquittal
for judgment of acquittal are reviewed de novo. Pagan v.
State, 830 So.2d 792, 803 (Fla. 2002). The evidence is
viewed in a light most favorable to the State. Id.
defendant is considered "a principal in first
degree" as follows:
Whoever commits any criminal offense against the state,
whether felony or misdemeanor, or aids, abets, counsels,
hires, or otherwise procures such offense to be committed,
and such offense is committed or is attempted to be
committed, is a principal in the first degree and may be
charged, convicted, and punished as such, whether he or she