Barton v. State, 96-535

• Decision Date: 29 July 1997
• Docket Number: No. 96-535,96-535
• Citation: 704 So.2d 569
• Parties: 22 Fla. L. Weekly D1831 Calvin Gary BARTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 569

704 So.2d 569

22 Fla. L. Weekly D1831

Calvin Gary BARTON, Appellant, v. STATE of Florida, Appellee.

No. 96-535.

District Court of Appeal of Florida,

First District.

July 29, 1997.

Nancy A. Daniels, Public Defender; Fred Parker Bingham II, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PADOVANO, Judge.

Calvin Gary Barton, the defendant, appeals his conviction for capital sexual battery. In support of his argument for reversal, the defendant challenges the sufficiency of the evidence and the correctness of a series of evidentiary rulings. We conclude that the evidence was sufficient and therefore reject the defendant's argument on that point, but we agree that the defendant has shown reversible error as to several of the evidentiary rulings preserved for review. Consequently, we reverse for a new trial.

I.

The state charged the defendant by information with the offense of capital sexual battery. According to the information, the defendant committed a sexual battery on M.W., a female child under the age of twelve, between April 1 and April 7, 1995, by placing his finger in the child's vagina. The defendant entered a plea of not guilty and the case was scheduled for a jury trial.

Before trial, the state filed a motion to present the victim's testimony to the jury by videotape. A dispute arose concerning the defendant's presence during the videotaping of the testimony. The guardian ad litem for the victim argued that the defendant should be excluded, but the defendant objected to this procedure and asserted his right to be present during the testimony in his case. When this issue was first considered by the trial court, the state proffered the testimony of Kathleen Kouis, a child therapist intern with Nassau County Community Services. Kouis expressed her opinion that the child was anxious about formal proceedings and that the child had a propensity to "decompensate emotionally" when discussing the allegations.

At a subsequent hearing, defense counsel objected to the videotaping on the grounds that Kouis was unqualified to testify as an expert; that there was no evidence of a substantial likelihood that the child would suffer moderate emotional or mental harm due to the defendant's presence if required to testify in open court; and that the state had not met its burden under section 92.53, Florida Statutes. Following the second hearing, the trial court granted the state's motion to videotape, stating that it found a "sufficient showing" to allow videotaping.

The victim's testimony was videotaped before trial in the presence of another judge, Chief Judge Donald Moran. Before the testimony began, Judge Moran questioned the victim to determine her competency to testify. At the trial before Judge Bill Parsons, the defense objected to the admissibility of the videotaped testimony of the victim, contending that her competency to testify had not been sufficiently established. The trial court admitted both the tape and the transcript, ruling that Judge Moran had previously "made the determination" of competence.

In another pretrial hearing, the trial court considered the admissibility of certain hearsay statements by the victim, and the admissibility of evidence of an offense against another child. The state had served notice of intent to introduce evidence of a series of hearsay statements by the victim, one to her stepmother, a second to Sergeant Hazel Crow during a police investigation, and a third to nurse Diane Larson during a medical examination. Likewise, the state had served notice of intent to introduce evidence that the defendant had committed a sex offense against S.Y., another female child. This hearing resulted in a ruling favorable to the state on both issues. The court held that all of the hearsay statements were admissible, and that the state could present evidence of the offense against the other child, as well.

At trial, the victim testified by videotape that the defendant lived in her neighborhood and that she would occasionally go to his house. She said that the defendant "touched her in her privates," that he gave her money, and that this had happened at least ten times. When questioned directly about the issue of penetration, the victim said that she did not know whether he put his fingers inside of her.

The victim's stepmother testified that she began to ask questions when she discovered two twenty dollar bills in the victim's backpack. Although the victim was not truthful about the money at first, she eventually told her stepmother that the defendant had given her money and that he had touched her in her private parts. Sergeant Crow of the Nassau County Sheriff's Department interviewed the victim shortly after the discovery of the twenty dollar bills. According to Sergeant Crow's testimony at trial, the victim said that the defendant had touched her in a nasty way. The victim explained to Crow that the defendant had "put his finger in her and it made her hurt."

Diane Larson, an OB-GYN nurse, examined the victim and related her findings in a videotaped deposition which was presented to the jury. Larson said that her examination of the victim's vaginal area revealed scarring of the hymen that was consistent with penetration by an object. She could not identify the object by its size or type but she was sure that the injury could not have resulted from a fall or by some event other than penetration.

Over a renewed objection by the defense, the state was allowed to present the testimony of another child, S.Y., regarding an offense committed against her several years earlier. The child testified that the defendant fondled her chest in 1992 or 1993 at a time when she was present in his home. She said that the defendant had given her money and that he had told her not to tell anyone.

At the close of the state's case, the defendant moved for a judgment of acquittal contending that the evidence was insufficient to support a conviction for capital sexual battery. The court denied the motion and the defendant took the witness stand in his own defense. He acknowledged that the victim had been to his house but he denied that he had touched her or that he had given her money. The jury found the defendant guilty as charged and the court imposed a sentence of life imprisonment with a minimum term of twenty-five years.

II.

The defendant contends that the evidence was insufficient to sustain his conviction for capital sexual battery because the state failed to prove the essential element of penetration. We reject this argument. The element of penetration was established by the victim's statement to Sergeant Crow that the defendant "put his finger in her and it made her hurt" and corroborated by the testimony of Nurse Larson who said that the physical examination of the victim's vaginal area revealed evidence of blunt penetration.

In reviewing the sufficiency of the evidence in a criminal case, the court must determine "whether after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment." Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981). Penetration is one of the elements that must be proven in a prosecution for capital sexual battery under section 794.011(2)(a), Florida Statutes. J.W.C. v. State, 573 So.2d 1064 (Fla. 5th DCA 1991), but evidence of the slightest penetration will suffice. Pride v. State, 511 So.2d 1068 (Fla. 1st DCA 1987). Moreover, as we explained in Davis v. State, 569 So.2d 1317 (Fla. 1st DCA 1990), "evidence of injury to external female parts of the victim may be sufficient circumstantial evidence of penetration." In the present case, the state presented testimony of digital penetration, in a statement introduced under section 90.803(23), Florida Statutes, as well as corroborating physical evidence.

The defendant contends, citing State v. Green, 667 So.2d 756 (Fla.1995), and Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988), that penetration cannot be established by an inconsistent and uncorroborated hearsay statement offered in evidence under section 90.803(23), Florida Statutes. This is a correct statement of the law, but the facts in Green and Jaggers are distinguishable. The victim in Green testified at trial that the defendant was not the man who had committed the sexual battery against her, and the prosecution then attempted to prove its case by introducing the victim's pretrial statements in which she had identified the defendant as her assailant. The supreme court held that the defendant's conviction could not be based on the inconsistent statement alone. Likewise, in Jaggers, the state attempted to prove a sexual battery case with an inconsistent pretrial statement when the victim testified at trial that the defendant had not penetrated her vagina with his finger. The court reversed on the ground that the conviction could not rest on the inconsistent hearsay statement.

Although the victim in the present case testified at trial that she did not know whether the defendant had penetrated her, she did assert, as she had previously, that the defendant touched her in her vaginal area. The defendant's argument that the victim's trial testimony is inconsistent with the statement she previously gave to Sergeant Crow expects too much of a nine-year-old child. The victim's response at trial may have been caused by a lack of memory or by a reluctance to discuss the event in greater detail, but it is not necessarily inconsistent with her earlier statement to the officer. ¹

Sergeant Crow testified at trial that the victim had told her the defendant "put his finger in her and it made her hurt." This testimony further explains the victim's...