        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            KENNETH McLEAN,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D13-4256

                               [May 20, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. 12003817CF10A.

  Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals from his convictions and sentences on three
counts of lewd and lascivious battery (counts one through three) and two
counts of interference with child custody (counts seven and eight). The
defendant raises several arguments, but we find merit in only his
argument that the trial court erred in denying his motion for judgment of
acquittal on count one for lewd and lascivious battery committed on or
between August 13, 2011, and December 31, 2011. We reverse his
conviction and sentence on that count, and affirm his convictions and
sentences on all other counts.

    Section 800.04(4)(a), Florida Statutes (2011), provides, in pertinent
part: “A person who . . . [e]ngages in sexual activity with a person 12 years
of age or older but less than 16 years of age . . . commits lewd or lascivious
battery . . . .” Section 800.04(1)(a), Florida Statutes (2011), defines “sexual
activity,” in pertinent part, as “the oral, anal, or vaginal penetration by, or
union with, the sexual organ of another . . . . ”
   The state’s information alleged the defendant committed lewd and
lascivious battery on the victim on the following dates:

   Count One: On or between August 13, 2011, and December 31, 2011;
   Count Two: On or between January 5, 2012, and January 6, 2012;
   Count Three: On or between January 9, 2012, and January 10, 2012.

   The victim testified she met the defendant sometime in the year before
her fourteenth birthday on August 13, 2011. She began talking to him on
the phone. She later went to his house several times.

   The victim testified that when she was at the defendant’s house, she
used her cell phone to take photos of him. The state introduced photos of
the defendant recovered from the victim’s cell phone. The photos taken in
2011 were not explicit. Some of the photos taken in 2012 were explicit.
The state showed the victim the photos taken in 2012. She testified she
had sex with the defendant on the occasions when she took those photos.

   The victim initially testified she did not remember the first time she had
sex with the defendant. She later testified she first had sex with him on
January 5, 2012, and had sex with him again on January 9, 2012.

   After the state rested, the defendant moved for a judgment of acquittal
on count one. He argued the state failed to present evidence he committed
lewd and lascivious battery on the victim on or between August 13, 2011,
and December 31, 2011, because the victim testified she first had sex with
the defendant on January 5, 2012.

   The state responded that the court should deny the motion because the
victim initially testified she did not remember the first time she had sex
with the defendant.

   The trial court denied the defendant’s motion for judgment of acquittal
on count one. This appeal followed.

    In Pagan v. State, 830 So. 2d 792 (Fla. 2002), our supreme court
articulated the standard of review for the denial of a motion for judgment
of acquittal:

      In reviewing a motion for judgment of acquittal, a de novo
      standard of review applies. Generally, an appellate court will
      not reverse a conviction which is supported by competent,
      substantial evidence. If, after viewing the evidence in the light
      most favorable to the State, a rational trier of fact could find

                                     2
      the existence of the elements of the crime beyond a reasonable
      doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (internal citations omitted).

   We conclude the defendant’s conviction on count one is not supported
by competent, substantial evidence. After viewing the evidence in the light
most favorable to the state, a rational trier of fact could not find beyond a
reasonable doubt that the defendant committed lewd and lascivious
battery on the victim on or between August 13, 2011, and December 31,
2011. At best, the state’s evidence showed the defendant and the victim
were involved in some kind of relationship during that time period, when
she went to his house several times and took non-explicit photos of him.
No evidence exists to show the defendant committed lewd and lascivious
battery on the victim during this time period. Thus, sufficient evidence
does not exist to sustain a conviction on count one. See Ramos v. State,
75 So. 3d 1277, 1282-83 (Fla. 4th DCA 2011) (trial court erred in denying
the defendant’s motion for judgment of acquittal where there was
insufficient evidence to show the defendant committed the crime during
the period charged) (citation omitted).

   Based on the foregoing, we reverse the defendant’s conviction and
sentence on count one, and remand for the trial court to enter an order of
acquittal on count one and amend the defendant’s judgment paperwork
accordingly. We affirm his convictions and sentences on all other counts.

   Affirmed in part, reversed in part.

STEVENSON and CONNER, JJ., concur.

                            *            *     *

   Not final until disposition of timely filed motion for rehearing.




                                         3
