Baugh v. State, 2D02-2758.

• Decision Date: 31 October 2003
• Docket Number: No. 2D02-2758.,2D02-2758.
• Parties: Raymond BAUGH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

862 So.2d 756

Raymond BAUGH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 2D02-2758.

District Court of Appeal of Florida, Second District.

October 31, 2003.

Rehearing Denied December 22, 2003.

James Marion Moorman, Public Defender, and James T. Miller, Special Assistant

Public Defender, Bartow, for Appellant/Cross-Appellee.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee/Cross-Appellant.

CASANUEVA, Judge.

Raymond Baugh appeals from his conviction for capital sexual battery upon the seven-year-old daughter of his former girlfriend, for which he received a sentence of life in prison. The substantive evidence against him at trial consisted almost exclusively of pretrial unsworn child hearsay statements admitted pursuant to section 90.803(23), Florida Statutes (2000), which directly conflicted with the victim's in-court testimony. The question we face in this case is whether, given the child victim's in-court testimony that there was never any sexual abuse, the child's out-of-court hearsay statements alone can sustain the defendant's conviction for capital sexual battery. We hold that the prior statements alone cannot sustain the defendant's conviction. However, in this case there was some other evidence that would give rise to the inference that Mr. Baugh committed the crime of which he was accused. In light of that other corroborative evidence, we affirm Mr. Baugh's conviction.

The State has also cross-appealed the trial court's decision to instruct the jury to consider the child hearsay testimony as impeachment rather than direct evidence. Although we hold that the court erred in giving that instruction, the cross-appeal is moot in light of our decision affirming the conviction.

THE TRIAL: INCONSISTENT STATEMENTS AND CREDIBILITY

The trial of this case took place about six months after the alleged molestation. The State's first witness was the child victim, C.P., who described a time when the defendant, her mother's live-in boyfriend, came into her room and closed the door. C.P.'s mother had sent her to her room for "bugging" her while she was ordering lobsters from Publix on the phone, and the defendant, whom she referred to as her daddy or Ray, came into her room to yell at her, closing the door behind him. The door was then accidentally locked because C.P. had fiddled with it earlier.

The defendant was wearing only a towel because he had just come from the shower. After he finished yelling at her, he picked up some mice from a cage so that he could feed them to the pet snake. C.P. denied that Ray ever opened up his towel, at that moment or any other time. However, C.P. had seen some "very gross" pictures when she was snooping around in her mother's bedroom. The significance of that comment would emerge when the child hearsay statements were later admitted, because C.P. told investigators that the defendant had shown her pictures to teach her how to perform oral sex.

When her mother began knocking on the door, C.P. opened it immediately, and her mother asked her what was going on. In response C.P. told a "fib"—that Ray made her suck his private—"but that was not true."

The prosecutor pressed the child about why she told this fib, and C.P. maintained that she made the story up because her older brother, who did not live with them, had told her about a similar event that had happened to him when he was about eight years old—that "a guy" (not the defendant or anyone involved in this case) made him suck the guy's private. C.P. thought of telling that lie because she wanted to get Ray in a "little, but not that much trouble," because sometimes he made her mad. She thought that it took her a couple of minutes to think of this lie before she told her mother, although the prosecutor questioned why she had not previously told him that she had thought about it for a few minutes before blurting it out.

According to C.P., the repercussions of her statement to her mother were immediate. There was a lot of yelling; her mother called the police; and the defendant took some razor blades and went into the bathroom and slashed at his wrists. C.P. recalled for the prosecutor that she did not speak to the police until a day or so later, when they went to the station and talked to Detective Venero. She told the detective that "it happened," that her daddy made her suck his private. She admitted that she told the detective that she had done it with Ray twelve times previously and that white stuff came out, which tasted bad; on the stand, however, she denied that it happened and stated she did not know how it tasted, but her brother had told her about it.

The prosecutor continued to press C.P. about her motivation to lie about this event and to continue to lie about it. C.P. basically said that she knew that she would get in trouble for lying, that she did not want to get in any more trouble, and that she was afraid that the detective would tell her mother. Her mother scares her when she lies. Even though she was lying, C.P. knew the difference between a lie and the truth all along. One night when she was watching TV, however, she decided to tell her mother the truth because she thought maybe she could deal with getting in trouble. She was sad because her family had been broken apart and she thought it would help if she told the truth. C.P. also consistently insisted that she had not talked with her mother about these matters or about Ray except for the time when she decided to finally tell the truth.

Another line of inquiry pursued by the prosecutor, over defense objection, delved into some new rules C.P.'s mother had instituted for her household, most of which concerned wearing appropriate clothing and not locking doors. The inference the prosecution sought from this testimony was that C.P. would not be afraid to have the defendant back in their household because these rules would prevent a further recurrence of this behavior. C.P., however, asserted that she was not afraid of him because he had never molested her in the first place. Although likening this testimony to evidence of subsequent remedial measures prohibited in some civil contexts, the trial court admitted the evidence because it was inextricably intertwined with the credibility of each witness that the jury was going to have to evaluate.

On cross-examination the defense attorney elicited from C.P. that she had originally told the lie because she was mad at her mother and Ray for yelling at her, and she kept repeating it because she was afraid of her mother. She ultimately told the truth, though, because she was sad that her family was broken apart and she felt bad that her lie had gotten them into this situation, and, she thought, "maybe I can deal with the pressure." It was a difficult decision, one she had to think about a long time. She again recounted that the story she had heard from her brother had stuck in her mind and supplied the details. Also, in nosing around her mother's room she had come across one picture that she should not have seen, and that, too, was difficult to erase from her mind. As for the new rules, they made her feel safe, but Ray never had asked her to do anything naughty or showed her naughty pictures. She was afraid of him, though, because when he does not take his medication he hurts himself. Finally, the defense elicited from C.P. that she does not like her mother's former friend, Kristin, and that she would never tell her a secret.

At the conclusion of C.P.'s testimony, the State had demonstrated that the alleged victim had first accused the defendant of molesting her, repeated that story to a number of different people, and then changed her story. C.P. was asked to identify the towel that Ray wore that night. She did so, but no physical evidence was ever obtained from that towel. The child protection team worker testified that her examination of C.P. revealed no evidence of abuse. Pornographic pictures were eventually recovered from the home, but there was never any direct testimony that the defendant had shown them to C.P. The detective, the child protection worker, and virtually every other witness repeated C.P.'s hearsay statements, but there was never any direct evidence demonstrating that events unfolded the way C.P. initially said they had.

Other than the child's prior inconsistent statements, the most damning piece of evidence was elicited from the mother. She testified that after she finished calling Publix about lobsters, she attempted to enter C.P.'s room but found that the door was locked. Within a few seconds—fewer than thirty, according to her estimate— someone opened the door. She saw Raymond standing there, wrapped up in his towel, with white mice in his hand, and her daughter behind him. Both denied knowing the door was locked, but she wanted to find out what had happened, so she separated them. She took C.P. to her bedroom, asked what was going on, and the child's exact words were, "He made me suck on his dick." The mother immediately confronted Ray, spouting what she described as "colorful metaphors," slapping him several times, and insisting that he leave immediately. During their heated argument Raymond said, "I want her to suck my dick, I want you to watch, and then I want to fuck you after."

C.P.'s mother testified on direct that Raymond made this remark in the heat of an argument to anger her, which it did. In fact, the first time the mother had indicated that she thought Raymond was less than serious when he made this remark, that he was describing what he wanted rather than what he did, was at the bond hearing, and by that time her daughter had changed her story and the mother was doing all she could to have Raymond released from jail.

On cross-examination the mother testified that she believed C.P. when she changed her story, because her behavior had changed for the better...