Baker v. State, 4-86-2626

• Citation: 526 So.2d 202,13 Fla. L. Weekly 1372
• Decision Date: 08 June 1988
• Docket Number: No. 4-86-2626,4-86-2626
• Parties: 13 Fla. L. Weekly 1372 William Edward BAKER, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 202

526 So.2d 202

13 Fla. L. Weekly 1372

William Edward BAKER, Appellant, v. STATE of Florida, Appellee.

No. 4-86-2626.

District Court of Appeal of Florida Fourth District.

June 8, 1988.

Mel Black, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

This appeal followed appellant's conviction for attempted sexual battery upon a child. He had been charged with sexual battery and kidnapping. We affirm the conviction but reverse the sentence and remand for resentencing.

We have reviewed the decisions of two trial judges in this case. The first judge conducted the trial and is alleged to have made three errors:

1. Instructing the jury on the offense of attempted sexual battery. We conclude this was not error.

2. Not instructing the jury on simple battery. We conclude this was not error.

3. Using an incorrect scoresheet in determining appellant's guideline sentence. We conclude there was error in scoring of twenty points for victim injury (physical).

The second judge conducted a hearing on appellant's pretrial motion for independent psychological examination of the victim. We conclude the trial judge did not abuse his discretion in denying the motion.

We have not been asked to review the legal sufficiency of the evidence presented by the prosecution witnesses, including the victim, the individuals she told of the incident shortly after its occurrence, the investigating law enforcement officers and the examining pediatrician. Further, we have not been asked to review the testimony of the non-victim witnesses from the standpoint of the competency of the evidence they produced, without objection. The jury considered the tape of appellant's statement as well as his testimony, denying any act for which he was charged, and the testimony of his character witnesses and an examining psychiatrist.

We shall first deal with the matters considered by the trial judge who conducted the trial. In reversing the sentence, we follow Smith v. State, 484 So.2d 649, 650 (Fla. 4th DCA 1986), which quoted Hendry v. State, 460 So.2d 589 (Fla. 2d DCA 1984), for the principle that points for victim injury cannot be properly awarded under the guidelines in the instant case when victim injury is not an element of the convicted offense. The present case, in our view, is similar to Inscore v. State, 480 So.2d 218 (Fla. 4th DCA 1985), which held victim injury could not be scored for attempted aggravated battery. It was error to score victim injury for attempted sexual battery.

As to the two questions with respect to the instructions, we find no error in instructing upon attempted sexual battery; and appellant did not request that the jury be instructed upon simple battery, foreclosing consideration of the latter issue on this direct appeal.

The question presented to the other trial judge bears further discussion, although no hearing was requested by the defense pursuant to section 90.803(23), Florida Statutes (1985), ¹ of either trial judge; and no objection was made at trial to the testimony of the victim or those to whom she told of the incident immediately after it allegedly occurred or during the investigation that evening and later.

The pretrial motion for an independent psychological examination of the victim was filed on April 17, 1986. There were no exhibits attached to the motion. If depositions were transcribed, they were not made part of the record here nor were they made part of the motion.

At the hearing on the motion conducted on May 29, 1986, the transcript of which is here, the trial judge stated his understanding of the law was that the decision was within his discretion; and that there need be very strong and compelling reasons for ordering such examination. Although not cited at the hearing, supporting authority, involving the prosecutrix in a rape case, is provided by this court's decision in Dinkins v. State, 244 So.2d 148, 150 (Fla. 4th DCA 1971). The recent case of State v. Coe, 521 So.2d 373 (Fla. 2d DCA 1988), quashing a trial court order requiring a sexual battery victim to undergo a psychiatric examination for the purpose of determining her credibility, reviews and agrees with Dinkins.

A thorough discussion of the role of discretion in a court's determination whether to order a mental examination of the victim of a sexual assault appears in an annotation on that subject, Necessity or Permissibility of Mental Examination to Determine Competency or Credibility of Complainant in Sexual Offense Prosecution, 45 A.L.R. 4th 310 (1986). ² A representative case cited in that annotation, State v. Walker, 506 A.2d 1143, (Me.1986) said:

Courts in most states have held that the grant or denial of a motion to compel victims of sex abuse to submit to psychological testing rests within the sound discretion of the trial judge. E.g., People v. Glover, 49 Ill.2d 78, 273 N.E.2d 367, 370 (1971); Easterday v. State, 254 Ind. 13, 256 N.E.2d 901, 903 (1970); State v. Boisvert, 119 N.H. 174, 400 A.2d 48, 51 (1979); Gov't. of Virgin Islands v. Scuito, 623 F.2d 869, 874-75 (3d Cir.1980). Three factors compelled one court to conclude that such tests were justified: (1) the victim's youth, (2) the fact that she had accused other men of having unlawful sexual contact with her, and (3) her admission at trial that those other accusations were false. Easterday, 256 N.E.2d at 903. Another court, however, recognized that victims of sexual assault have substantial privacy rights, so that there must be compelling reasons to require them to submit to psychiatric examinations. Boisvert, 400 A.2d at 51.

There is nothing in the present case that would lead us to conclude that the Superior Court abused its discretion in denying the Defendant's motion. The victim's age, eleven years at trial, is not noteworthy in itself. There is no presumption whether children under 14 are competent to testify at criminal trials; their competency is to be evaluated at the discretion of the presiding justice. State v. Pomerleau, 363 A.2d 692, 695 (Me.1976). Nor is there the slightest evidence the victim in this case fabricated charges of gross sexual misconduct against the Defendant's friend or any other man. The mere fact that she has implicated other men does not, without concrete evidence of fabrication, militate in favor of psychological testing. Furthermore, in light of the privacy interests of sexual abuse victims, we decline to permit the random exploration of their credibility by means of potentially embarrassing psychological tests. The fact that a defendant calls a victim's credibility into question is insufficient justification for psychological testing; her credibility is for the fact finder to determine. Allen v. State, 152 Ind.App. 284, 283 N.E.2d 557, 559 (1972). The Superior Court correctly denied the Defendant's motion.

Id. at 1147-48.

During the hearing on appellant's motion in the present case, the following colloquy took place:

THE COURT: Just a moment. I'm telling you, I'm going to have to take testimony.

....

[DEFENSE COUNSEL]: To declare a psychological impairment, there's got to be more than merely inconsistancies [sic].

THE COURT: That's why I said I need live testimony.

.... [DEFENSE COUNSEL]: Three of the woman's children have accused another man of sexual assault, and he is now in jail.

THE COURT: I am through using the time. Your personal opinions are in the motions.

[DEFENSE COUNSEL]: That's all I have.

THE COURT: Your personal opinions concerning all the testimony and things that you think should be right, it is unsupported in suggestion, or in affidavit from any one of psychological expertise, that what you have discovered so far, indicates that the child suffers from any kind of emotional condition, which would warrant the Court record.

[DEFENSE COUNSEL]: I don't know that.

THE COURT: We're not going to do it on guess work. I decline to grant the motion.

[DEFENSE COUNSEL]: Okay. Is there a--Would an evidentiary hearing motion--

THE COURT: The motion is denied.

[DEFENSE COUNSEL]: Okay.

THE COURT: If you have other data that you have available to submit to the Court, file it with the appropriate information with the motion.

The case was not tried until September 29, 1986, four months after the hearing. No effort was apparently made in that period to provide supportive material or renew the motion.

The victim's statements about the episode were corroborated by the testimony of her playmate, the playmate's mother, the first officer on the scene, and detectives. Inconsistencies in the statements as well as the victim's conduct after the episode were all spelled out to the jury, which evaluated and determined what did and did not occur. We are not being asked to substitute our determination for the jury's; nor would it be our function to do so.

In determining whether the trial judge abused his discretion, we have considered the four corners of the motion, and the hearing thereon, and are equally unwilling to substitute our judgment for his as it is clearly not our function to do so.

We have avoided deciding this issue on any technical basis. While the gist of the motion speaks of the credibility of the victim and the state argues the defense was asking the trial court to invade the province of the jury, we understand appellant was asking that the trial court evaluate the victim...