                                           IN THE DISTRICT COURT OF APPEAL
                                           FIRST DISTRICT, STATE OF FLORIDA

VERNORD LAVON BRIGHT,                      NOT FINAL UNTIL TIME EXPIRES TO
                                           FILE MOTION FOR REHEARING AND
      Appellant,                           DISPOSITION THEREOF IF FILED

v.                                         CASE NO. 1D15-0150

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed April 12, 2016.

An appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.

Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender,
and Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant, Vernord Lavon Bright, challenges his convictions and sentences

for two counts of sexual battery with a deadly weapon. Appellant raises several

issues but we write only to address the trial court’s denial of his motion for
judgment of acquittal (JOA) on one of the two counts. Because we find that the

evidence that Appellant used or threatened to use a deadly weapon in the process

of committing the first sexual battery was legally insufficient, we reverse that

conviction and remand for entry of judgment of conviction for sexual battery

without a deadly weapon. We reject Appellant’s other arguments without

comment.

      Viewing the evidence in a light most favorable to the State, the victim, after

driving around with Appellant earlier that night, awoke in a shed to Appellant

having vaginal sex with her. This act led to the first count of sexual battery with a

deadly weapon. Appellant then went outside, retrieved a firearm, and returned to

commit anal sexual battery upon the victim. This act led to the second count of

sexual battery with a deadly weapon. The defense moved for JOA on Count I,

arguing that there was no evidence connecting the use or threatened use of a deadly

weapon in the process of the vaginal sexual battery. The trial court denied the

motion for JOA, and the jury found Appellant guilty as charged on both counts.

      A trial court’s denial of a motion for judgment of acquittal is reviewed de

novo. Jones v. State, 4 So. 3d 687, 688 (Fla. 1st DCA 2009). The question

presented by such a motion is whether, in a light most favorable to the State, the

evidence is legally sufficient to support the charge. Ridgeway v. State, 128 So. 3d

935, 936 (Fla. 1st DCA 2013). In reviewing a trial court’s denial, an appellate

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court must consider the evidence and all reasonable inferences from the evidence

in a light most favorable to the State. Lukaszewski v. State, 111 So. 3d 212, 213

(Fla. 1st DCA 2013).

      Section 794.011(3), Florida Statutes (2014), provides that “[a] person who

commits sexual battery upon a person 12 years or older, without that person’s

consent, and in the process thereof uses or threatens to use a deadly weapon”

commits a life felony. The record does not include competent and substantial

evidence from which a jury could find that Appellant, in the process of the vaginal

sexual battery, used or threatened to use a deadly weapon. The evidence was

sufficient, however, for the jury to have found each of the elements for sexual

battery upon a person 12 years of age or older, which is a lesser-included offense

of the charged offense. § 794.011(5)(a), Fla. Stat. (2014). Accordingly, we direct

the trial court to adjudicate Appellant guilty of sexual battery. See § 924.34, Fla.

Stat. (2014); see also State v. Sigler, 967 So. 2d 835, 844 (Fla. 2007) (“[W]hen all

of the elements of a lesser offense have been determined by the jury, section

924.34 is a valid exercise of the legislative prerogative allowing appellate courts to

direct a judgment for such an offense.”).

      Therefore, we REVERSE Appellant’s judgment on Count I and REMAND

with instructions for the trial court to enter judgment for sexual battery and

resentence accordingly. The judgment and sentence for Count II is AFFIRMED.

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WOLF, LEWIS, and WINOKUR, JJ., CONCUR.




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