http://www.clickorlando.com/news/24169596/detail.html
DAYTONA BEACH, Fla. -- A Florida appellate court has ruled it is perfectly legal for a man to sit in his pickup truck outside a convenience store in the presence of a child and wave and insert into his mouth a long, cylindrical plastic sex toy commonly referred to as a dildo.
That’s what David Lowe was doing in December 2008 outside the Shop N Save on Ponce De Leon Boulevard in Brooksville, according to police records.
And it’s what got Lowe, 47, arrested on charges of lewd or lascivious exhibition.
That makes it a felony to, in the presence of someone under 16, commit a “sexual act ... involving the simulation of any act involving sexual activity.”
The 5th District Court of Appeal in Daytona Beach ruled last week, however, that what Lowe was doing did not involve simulated "sexual activity." But Brooksville police sure thought it did.
They were called after witnesses said Lowe was sitting in his truck around 5:40 p.m. on Dec. 28, 2008, waving the plastic, skin-colored device at women emerging from the convenience store and then placing it in his mouth.
The mother of a 7-year-old girl who watched from an adjacent parking space called police after she and her daughter witnessed the behavior and the child asked her what the man was doing.
According to the reports, police stopped Lowe in his truck as he tried to leave the convenience store, and he denied having the sex toy. The officer noted Lowe smelled of alcohol and was wearing sweatpants that were wet and evincing an erection. A search of the truck turned up an open Busch beer can and a lubricated dildo within reach.
After posting a $5,000 bond, Lowe retained attorney Kirk Campbell, who apparently read very closely the statute Lowe was accused of violating and found the behavior is not a crime in Florida.
Hernando County Circuit Judge Jack Springstead disagreed, though, and denied Lowe’s motion to dismiss in July 2009.
So Lowe pleaded no contest to the charge, reserving his rights to appeal the denial of his motion to dismiss. The judge sentenced him to the one day he already served in jail before posting bond, withheld adjudication of guilt and ordered two years of probation, which included alcohol abuse treatment.
But last week, the 5th District Court of Appeal in Daytona Beach found Lowe’s motion to dismiss should have been granted and it remanded the case to Hernando County with orders the case be discharged.
The reason: What Lowe was simulating was not “sexual activity,” as defined by Florida law.
That law says sexual activity is “the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.”
The court found Lowe “did not simulate the act of oral sex with the sexual organ of 'another.' The dildo was not near 'another' person’s genitalia … it was apparent he was simulating oral sex with an object. His actions, though clearly rude and offensive, do not violate the express terms of the statute.”
DAYTONA BEACH, Fla. -- A Florida appellate court has ruled it is perfectly legal for a man to sit in his pickup truck outside a convenience store in the presence of a child and wave and insert into his mouth a long, cylindrical plastic sex toy commonly referred to as a dildo.
That’s what David Lowe was doing in December 2008 outside the Shop N Save on Ponce De Leon Boulevard in Brooksville, according to police records.
And it’s what got Lowe, 47, arrested on charges of lewd or lascivious exhibition.
That makes it a felony to, in the presence of someone under 16, commit a “sexual act ... involving the simulation of any act involving sexual activity.”
The 5th District Court of Appeal in Daytona Beach ruled last week, however, that what Lowe was doing did not involve simulated "sexual activity." But Brooksville police sure thought it did.
They were called after witnesses said Lowe was sitting in his truck around 5:40 p.m. on Dec. 28, 2008, waving the plastic, skin-colored device at women emerging from the convenience store and then placing it in his mouth.
The mother of a 7-year-old girl who watched from an adjacent parking space called police after she and her daughter witnessed the behavior and the child asked her what the man was doing.
According to the reports, police stopped Lowe in his truck as he tried to leave the convenience store, and he denied having the sex toy. The officer noted Lowe smelled of alcohol and was wearing sweatpants that were wet and evincing an erection. A search of the truck turned up an open Busch beer can and a lubricated dildo within reach.
After posting a $5,000 bond, Lowe retained attorney Kirk Campbell, who apparently read very closely the statute Lowe was accused of violating and found the behavior is not a crime in Florida.
Hernando County Circuit Judge Jack Springstead disagreed, though, and denied Lowe’s motion to dismiss in July 2009.
So Lowe pleaded no contest to the charge, reserving his rights to appeal the denial of his motion to dismiss. The judge sentenced him to the one day he already served in jail before posting bond, withheld adjudication of guilt and ordered two years of probation, which included alcohol abuse treatment.
But last week, the 5th District Court of Appeal in Daytona Beach found Lowe’s motion to dismiss should have been granted and it remanded the case to Hernando County with orders the case be discharged.
The reason: What Lowe was simulating was not “sexual activity,” as defined by Florida law.
That law says sexual activity is “the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.”
The court found Lowe “did not simulate the act of oral sex with the sexual organ of 'another.' The dildo was not near 'another' person’s genitalia … it was apparent he was simulating oral sex with an object. His actions, though clearly rude and offensive, do not violate the express terms of the statute.”
