Can You Commit a Crime While Asleep? A Florida Lawyer on Criminal Intent

By: John Guidry

You’re about to hear some strange goings-on, and because so much strange stuff tends to come out of Florida, let’s start with a true story from out West.

Earlier this year, a nursing home in Phoenix discovered that a patient of theirs was pregnant. Eventually, this nursing home patient gave birth. Now, a woman giving birth isn’t odd by itself. Even a woman giving birth in a nursing home isn’t the craziest thing ever, but this particular woman has been a vegetative state for 14 years. Even after giving birth, this woman is still in a vegetative state.

Facing a Criminal Charge in Orlando? The State must prove what you did, and they must prove what you knew. Your intent is everything. Call my office if you’ve got a “situation” that needs defending. We’re here to help. Call John Guidry: (407) 423-1117

The police department didn’t need to call in the FBI to help solve this one. The local cops just obtained DNA samples from all the male nurses working at the assisted living facility and moments later–crime solved. To no one’s surprise, the father of the child was a licensed nurse in charge of taking care of the woman. [See Also the film “Kill Bill Vol. 1”, the intro scene entitled “My Name is Buck”, its art imitating reality, and as Greg Graffin once sang, Sometimes Truth is Stranger than Fiction (my web optimizer people discourage obscure punk rock references, sorry web people)].

A similar strange thing happened in an Osceola hospital recently.

A seventeen-year-old girl gave birth to a child. Sure, she’s a bit young to be giving birth. In this case, the oddity was the fact that her baby had a brain defect, a chromosomal abnormality. This abnormality tells the doctors that, basically, the crime of incest is afoot.

A social worker at Nemours Children’s Hospital confronted this 17-year-old mother about her pregnancy. The 17-year-old mother quickly confessed that her 39-year-old biological father impregnated her. Dad’s name is Willie Griffin Jr. State v. Griffin, 2019 Fla. App. LEXIS 6015 (Fla. 5th DCA 2019).

So, a 39-year-old father has sex with his 17-year-old daughter. Time for dad to go to prison, forever. Right?

Well, not so fast. There is such a thing as defense attorneys. And we file stuff. Griffin’s defense lawyer filed a motion to dismiss and, after hearing the facts, an Osceola County Circuit Court Judge dismissed all charges. Yes, you heard me, it wasn’t a throwaway line. After hearing the facts.

The “facts” appear to be that a 17-year-old girl admitted she had sex with her 39-year-old father, and if that’s the case, how did this case get dismissed on the facts?

Well, based on the eyewitness testimony of both the people involved–the father had no knowledge of the intercourse.

Can you ever trust eyewitness testimony?

Here’s what happened: Late one night this 17-year-old was checking on her sleeping father. She noticed he was making grunting sounds. He was taking some serious medications, so it didn’t surprise anyone that he was in a deep sleep. The daughter then joined her father in his bed and placed her hand on his shorts, rubbing her father’s penis until it became aroused. She then placed the tip of her father’s penis inside her vagina and she believes that he ejaculated. He never woke up. She then showered. After showering she noticed that her father was still fast asleep.

Technically, physicians may call this a ‘sleep orgasm’ or ‘nocturnal emission’, but whatever you call it, the father had no part of it. No knowledge. No intent. No nothing.

The social worker at the hospital didn’t believe the 17-year-old’s story, so she called the police to apply further pressure on the girl, demanding that she fess up to ‘what really happened’ under penalty of perjury. And for the second time, this 17-year-old told the police the exact same story.

The Osceola judge who granted dismissal did the right thing. After all, how can a man be sent to prison for something done to him while he was asleep? The reason you’re reading this article is that the 5th District Court of Appeals didn’t agree, they overturned the dismissal and want the case to go in front of a jury, reasoning that “in this case, there is indisputable evidence of sexual intercourse between the defendant and his minor daughter as the act resulted in a child. A jury could infer the necessary general intent from these facts and, thus, the State established a prima facie case of guilt for the crimes charged.” Griffin at 4.

So let me get this straight. Remember the woman in Arizona who had a child in an assisted living facility while in a persistent vegetative state? By the ‘general intent’ reasoning above, if the male who impregnated the assisted living patient was underage, she would be charged with the exact same crime as Griffin. Obviously, she could not have formed any sort of intent to commit a crime lying unconscious.

The logic of the appellate court in Griffin is severely flawed. When the court overturned Griffin’s dismissal because a jury “could infer the necessary general intent from these facts”, they ignored that general intent crimes imply that the action is taken knowingly and willfully or intentionally. Yes, this is America. We cannot send people to prison unless they commit a willful, intentional act. See Polite v. State 973 So. 2d 1107 (Fla. 2007), Frey v. State 708 So. 2d. 918 (Fla. 1998), A.L. v. State, 675 So. 2d 703 (Fla. 3d DCA 1996), N.K.D. v. State, 799 So. 2d 428 (Fla. 1st DCA 2001), M.H. v. State, 936 So. 2d 1 (Fla. 3d DCA 2006).

In Griffin, there are only two eyewitnesses, the daughter, and the father. Both eyewitnesses claim the father was incapacitated via sleep and medications. You cannot form any sort of intent while asleep. But as the saying goes, never let the facts–or the law–stand in the way of creating a sex offender. The appeals court is sending Griffin’s case to a jury because they believe that “a jury could infer the necessary general intent from these facts.”

Aside from the issues surrounding the law requiring a knowing or willful act, there are other problems with the Griffin decision. What about “intention”?

We can gain a pretty good understanding of what intention looks like in battery cases because a battery must be an intentional touching, otherwise, it’s not a battery.

Some folks claim that “intent” issues cannot be addressed by a judge and must always go to a jury, but this is nonsense. The case of Bonge v. State explores both intent and dismissal. Bonge rescued his 94-year-old mother from a nursing home after discovering that they refused to take her to the hospital. 53 So. 3d 1231 (Fla. 1st DCA 2011) Bonge took his mother to the emergency room against her will and was arrested for felony battery on a person over the age of 65.

Bonge’s motion to dismiss was just like the one in Griffin, except that Bonge’s motion was denied. So, Bonge appealed–and they granted him dismissal–reasoning that battery is defined as when a person:

“intentionally causes bodily harm to another person. Intent is an element of battery. The intent to commit a battery is determined by the circumstances surrounding the touching or the striking of the victim. Given the specific facts of this case, which were admitted by the State below, the State could not establish that Bonge intended to touch his infirm and elderly mother against her will when he lifted her from her wheelchair and placed her in his car for transport to a local emergency room.” Bonge at 1233.

How is the battery in Bonge any different than the battery in Griffin?

Judge Morgan’s dismissal of Griffin’s case should have been upheld by the District Court of Appeals.

John’s Takeaways

• A Crime Requires Intent: In America, you cannot be sent to prison unless you commit a willful, intentional, knowing act. This is a fundamental legal principle known as mens rea.
• A Person Cannot Form Intent While Unconscious: Whether asleep, heavily medicated, or in a vegetative state, an unconscious person lacks the capacity to “knowingly and willfully” commit a crime.
• The State Must Prove Intent: It is the prosecutor’s burden to present facts that establish a defendant’s criminal intent. If they cannot, the case should be dismissed by a judge before it ever gets to a jury.
• Bad Facts Don’t Change the Law: As the saying goes, “never let the facts get in the way of a good story.” In this case, the appellate court seemed to let the disturbing facts override a fundamental legal principle.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.