Swaim v. State , 677 So. 2d 913 ( 1996 )

COBB Judge,

concurring in part, dissenting in part.

I would affirm the conviction of sexual battery charged in Count II, which allegedly occurred at the defendant’s house. The victim’s testimony as to digital penetration at that location was her answer of “Sometimes” to the question as to the defendant putting his finger in her “the other time” — i.e., at the house as opposed to the apartment. This, together with her testimony that the pain was the same as the prior penetration, was sufficient to support the jury verdict. See J.W.C. v. State, 573 So.2d 1064 (Fla. 5th DCA 1991)(where sexual battery charge involves use of defendant’s finger on child’s vagina, state must show penetration; even the slightest evidence of penetration, however, is sufficient). I would affirm both convictions.