NEWELL v. STATE (2000)

District Court of Appeal of Florida,Fifth District.

Jason W. NEWELL, Appellant, v. STATE of Florida, Appellee.

No. 5D00-380.

Decided: December 01, 2000

James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Alfred Washington, Jr.,Assistant Attorney General, Daytona Beach, for Appellee.

Newell was convicted of lewd and lascivious assault upon a child and appeals. We affirm.

First, Newell contends the court erred in permitting the victim to testify that she saw him naked from the waist down on an occasion prior to the assault. This incident became relevant when Newell urged that the inmate who testified that Newell had confessed to the crime had discovered that the victim had walked in on Newell while he was masturbating only from the discovery material that the inmate had improperly found in Newell's cell in Newell's absence. Since there was evidence that the cells were locked when the inmates were out of their cells, this evidence became relevant to corroborate the purported confession challenged by Newell.

Newell also challenges the court's failure to give the lesser included instruction on unnatural and lascivious act. This objection was waived when the defense stated it had no objections to the instructions as given by the court.

AFFIRMED.

HARRIS, J.

THOMPSON, C.J., and PLEUS, J., concur.

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