
    Jimmie Lee BANKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2639.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Nov. 29, 2006.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

GUNTHER and FARMER, JJ„ concur.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I concur in affirming appellant’s conviction. 'When the jury posed a question, defense counsel asked the judge to respond by re-reading the standard charge on sexual battery involving no physical force. The judge did so. Now, appellant argues that the re-reading of the standard instruction was fundamental error. Any error was waived by counsel asking that the instruction be read. See Armstrong v. State, 579 So.2d 734, 735 (Fla.1991); Singletary v. State, 829 So.2d 978, 979 (Fla. 1st DCA 2002). This request was consistent with the defense strategy and theory of the case which was not that the incident was an accident, but that no penetration at all occurred, as evidenced by counsel’s repeated statement in opening and closing, “If the hand don’t fit, you must acquit.”  