Baker v. State, 1D01-9.
| Decision Date | 18 January 2002 |
| Docket Number | No. 1D01-9.,1D01-9. |
| Citation | 804 So.2d 564 |
| Parties | Willie J. BAKER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
Willie J. Baker appeals his conviction for committing a sexual act with a child under the age of 16 in violation of section 800.04(3), Florida Statutes (1997). He contends that the trial court erred in denying his proffered evidence that the victim had falsely accused others of sexual crimes against her in the past. Because the undisputed evidence in the record establishes that appellant admitted having sex with the victim, we find any such error would be harmless beyond a reasonable doubt and we affirm.
Investigator Haire of the Gadsden County Sheriff's Office received an abuse report from the Department of Protective Services that the victim, D.A., who was 15 years old, had been forced by appellant, her brother-in-law, to have sexual intercourse with him. Investigator Haire interviewed appellant and took a recorded statement from him. The following are excerpts from that statement:
Prior to trial, the trial court heard argument on whether appellant should be permitted to introduce evidence that, in the past, the victim falsely accused males who were in a custodial relationship with her of having had sex with her. The state argued that such evidence was irrelevant as it constituted an impermissible attack on the victim's credibility. The trial court delayed ruling on the matter, commenting that defense counsel should proffer the evidence before it was sought to be admitted and at that point the trial court would rule on its admissibility. The victim testified that one night at her sister and brother-in-law's trailer, when her sister had gone with a friend to a nightclub, appellant came over to her while she was lying on the couch and began touching her. He took her to the bedroom where he had sex with her using a condom. She testified that appellant placed his penis inside her vagina.
After the victim testified, defense counsel proffered certain cross-examination testimony about past instances in which the victim had falsely accused several male relatives of attempting to have sex with her. Defense counsel argued that the testimony was relevant to the victim's credibility and her veracity because "she's admitted here that at least on two occasions she accused people of having had sex with her when, in fact, that did not occur." In response, the state argued that the evidence was not relevant because appellant had admitted attempting to have sex with the victim. The state argued that evidence of specific instances of misconduct could not be used to attack the credibility of the victim. The trial court excluded the testimony from evidence. Similarly, the trial court refused to allow the testimony of several of the victim's relatives about these false accusations. Appellant's wife, along with others, did testify that the victim's reputation for truthfulness in the community was bad.
Appellant did not testify nor did he cross-examine Investigator Haire regarding the reliability of the recorded statement. Defense counsel argued to the jury in closing that the state failed to prove beyond a reasonable doubt that defendant caused his sexual organ to penetrate or have union with the victim's vagina. Further, he argued that the victim was not a credible witness and that her testimony was the only testimony of physical contact between the appellant and her "and if you find that the victim is unreliable in that respect, then your verdict should be not guilty."
The jury returned a verdict finding appellant guilty as charged. He was sentenced to nine years in prison to be followed by three years probation.
Section 800.04 provides in pertinent part:
Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section.
Section 794.011(1)(h) defines sexual battery as follows:
(h) "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; ...
Under this statute, sexual battery can be accomplished either by union or penetration. Seagrave v. State, 26 Fla. L. Weekly S481, S484, n. 7 (Fla. July 12, 2001). In Seagrave, the court approved the analysis of the Second District Court of Appeal in Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999) that Id. To sustain a conviction for sexual battery, it is not necessary for the state to prove that the defendant completed the act of sexual intercourse by "emission." Barker v. State, 40 Fla. 178, 24 So. 69 (1898).
Further, the crimes of sexual battery and lewd and lascivious conduct are mutually exclusive. Hausen v. State, 730 So.2d 327, 328 (Fla. 5th DCA 1999). As the supreme court pointed out in State v. Hightower, 509 So.2d 1078, 1079 (Fla. 1987), "section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious." Consensual intercourse with an unchaste fifteen year old constitutes the crime of lewd and lascivious conduct. See id.
Under sections 90.609 and 90.610, Florida Statutes, the character of a witness may be impeached by evidence of reputation for truthfulness or by evidence of criminal convictions. While it is generally true that, other than evidence of prior convictions under section 90.610(1), credibility may not be attacked by proof that the witness has committed specific acts of misconduct which bear on the truthfulness of the witness, Fernandez v. State, 730 So.2d 277, 282 (Fla.1999), the Second District Court of Appeal has recognized an exception to this rule permitting impeachment with prior acts of misconduct that involve prior false accusations of a crime by the witness. See Cliburn v. State, 710 So.2d 669, 670 (Fla. 2d DCA 1998)
(in burglary prosecution, when only witnesses were the victim and the defendant, who was a former boyfriend, it was reversible error to prohibit cross-examination of the victim as to whether she had filed a false police report on a prior occasion against another boyfriend); Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988)(witness who testified about similar sexual acts with the defendant could be impeached with her prior false accusation of sexual assault, the court reasoning that the evidence showed the bias, prejudice and motive of the witness); Williams v. State, 386 So.2d 25 (Fla. 2d DCA 1980)(murder defendant could attack the credibility of the prosecution witness by asking her whether she had lied to the police on a prior occasion); see generally Charles W. Ehrhardt, Florida Evidence § 610.8 at 511 & n. 6 (2001 Ed.).
However, even if we were to adopt the Second District's false accusation exception and hold that the trial court erred in excluding the testimony concerning prior false accusations by the victim, a decision we do not reach, under the undisputed facts in the record before us, any such error was harmless beyond a reasonable doubt. See Goodwin v. State, 751 So.2d 537 (Fla.1999)
. Here, the records shows that appellant admitted twice that he had sexual intercourse with the victim. In view of this undisputed evidence, we find that any error in excluding the testimony concerning the victim's prior false accusation did not influence the jury's deliberation. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)("The focus [of a harmless error analysis] is on the effect of the error on the trier of fact.").
Appellant's defense was not that...
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