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Henry v. State

Florida Court of Appeals, Fourth District

November 1, 2017

FRANCISCO HENRY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen Miller, Judge; L.T. Case No. 502010CF002071A.

          Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

          Forst, J.

         Appellant 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.

         Background

          Four 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.

         The 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.[1] As noted above, Appellant was convicted of seventeen counts of sexual battery.

         Analysis

         I. Appellant's motion for judgment of acquittal

         Motions 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.

         A 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 ...

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