
    Francisco ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D99-1438.
    District Court of Appeal of Florida, Fifth District.
    April 14, 2000.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Pamela J, Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   COBB, J.

The defendant contends on appeal that the lower court erred by denying his motion for judgment of acquittal on the charges of attempted sexual battery because the evidence showed improper touching on multiple occasions, but there was no evidence of any intent to penetrate the victim’s vagina. The child victim did not testify to anything more than improper touching. No medical evidence was presented. In a taped interview of the defendant, presented into evidence by the state, he repeatedly denied anything beyond a touching of the victim. The state relies solely on a hand drawing where the defendant colored the tips of his fingers to show that the touching was done with the pads of his fingers, and a reference by the interviewing officer to how far the defendant’s fingers “might have gone inside her.” The defendant contends that the only evidence of intent to penetrate is circumstantial and does not support a finding of guilt to the exclusion of all other inferences. See Rogers v. State, 660 So.2d 237 (Fla.1995); see also Ready v. State, 636 So.2d 67 (Fla. 2d DCA 1994).

We agree with the defendant. Based upon the approach taken by the state in this case, every case of improper touching can be prosecuted as an attempted sexual battery. We reverse and remand for entry of judgment on the appropriate lesser included offenses.

REVERSED AND REMANDED.

PETERSON, J., concurs.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent because I believe there was enough evidence to go to the jury on the question of whether the defendant is guilty of the offense of attempted sexual battery, not merely a lewd assault. The investigating officer testified that during his interview with the defendant he drew an outline of a hand and asked Ellis to draw a line showing: “the very furthest your finger might have gone inside her”. Rather than object that he did no such thing, the defendant drew a series of lines on the fingertips of the sketch. The officer testified that the appellant was showing him “how far he penetrated her vagina with his fingertips”. The defendant told the officer that what he did “played on his mind” and made him feel remorseful. Because the victim only testified about touching, the evidence in this case is admittedly close; however, the only issue is whether the defendant intended to penetrate and did an overt act toward the offense. There is evidence that he did.  