A state appeals court has reversed the conviction of a 47-year-old Brooksville man, citing a misapplication of the legal definition of "sexual activity."
David Lawrence Lowe was arrested in December 2008, accused of putting a sex toy into his mouth in view of a 7-year-old girl while he was sitting in a vehicle in a convenience store parking lot.
Lowe later pleaded no contest to a single count of lewd or lascivious exhibition. As part of his plea, Lowe reserved the right to appeal based on the denial of a motion to dismiss the charge because "his conduct, while offensive, (did) not violate the clear language" of the law, according to a court record.
Circuit Judge Jack Springstead sentenced Lowe to two years of sex offender probation last July.
But the 5th District Court of Appeal ruled Friday that Lowe's dismissal motion should have been considered because "penetration of one's own mouth with an object does not constitute an act of sexual activity."
The three-judge panel said that because Lowe's act didn't involve a sex organ, it wasn't a clear violation of the law.
Lowe's act, "though clearly rude and offensive," did"not violate the express terms of the statute," read the opinion.
The case has been remanded to the Circuit Court.
Lowe's attorney, Kirk Campbell of the Whittel & Melton law firm in Spring Hill, did not return a message left at his office Friday.
Joel Anderson can be reached at email@example.com or (352) 754-6120.