v.
STATE of Florida
Lead Opinion
AFFIRMED.
Concurrence
concurring specially.
Because the record in this case contains no motion for judgment of acquittal, directed verdict, or motion for new trial, we cannot consider Farmer’s sole point on appeal that the evidence at trial was insufficient to convict him of sexual battery of the fourteen-year-old child victim.[1] Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983), approved in part, quashed in part on other grounds, 451 So.2d 844, 845 (Fla.1984).
This result is disquieting to say the least, because the medical evidence and testimony in this case was not supportive of the child victim’s testimony. That testimony provided the sole basis for Farmer’s conviction. And reasonable inferences based on the doctor’s testimony support Farmer’s assertion of innocence.
The doctor testified he found no evidence of any sexual battery or activity when he examined the child the day following the alleged sexual battery.. The child lacked any hymen at all. He said this was most unusual in a child of fourteen who was not sexually active.
He testified that had the child been sexually active, evidence of sexual battery the prior night would have been possible, but it was not found. Had the victim been sexually inactive, tearing of the hymen and bruising would clearly have been evident. But there were no such findings. The absence of such [*86] evidence casts considerable doubt on the justice of the result in this case.
§ 794.041, Fla.Stat. (1993).