Belcher v. State, No. 92-1653

• Court: Court of Appeal of Florida (US)
• Writing for the Court: THOMPSON; HARRIS, C.J., and PETERSON
• Citation: 646 So.2d 231
• Parties: 19 Fla. L. Weekly D2250 Jerry Dean BELCHER, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 92-1653
• Decision Date: 21 October 1994

Page 231

646 So.2d 231 19 Fla. L. Weekly D2250 Jerry Dean BELCHER, Appellant,
v.
STATE of Florida, Appellee. No. 92-1653. District Court of Appeal of Florida,
Fifth District. Oct. 21, 1994.
Rehearing Denied Dec. 2, 1994.

Kirk N. Kirkconnell and David A. Henson of Kirkconnell, Lindsey & Snure, P.A., Winter Park, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Barbara C. Davis and Steven J. Guardiano, Asst. Atty. Generals, Daytona Beach, for appellee.

THOMPSON, Judge.

We have reviewed Jerry Dean Belcher's pending motions and have considered them as a motion for clarification filed pursuant to Florida Rule of Appellate Procedure 9.330. We grant the motion for clarification, withdraw our previous opinion and substitute the following.

Jerry Dean Belcher appeals his convictions on 12 counts of lewd acts upon a child ¹ and one count of sexual activity with a child. ² Belcher was sentenced to 17 years in the Department of Corrections on the charge of sexual activity with a child and 12 years on each count of lewd acts upon a child, with all sentences to run concurrently. We affirm the convictions and the sentences.

FACTS

Belcher was arrested on 10 February 1992 after his minor daughter reported that he had engaged in sexual improprieties with her from June 1989 through August 1990. The state presented testimony from six witnesses relevant to this appeal: the victim, Belcher's daughter; her friend; her friend's mother;

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her aunt; her uncle; and a physician from the Child Protection Team. The victim testified that Belcher had fondled her vaginal area approximately once per month for five months beginning in January of 1989. She then testified that he progressed to a monthly fondling of her breasts and vaginal area during most of the following months between June 1989 and June 1990. His acts culminated in frequent digital penetration of her vagina in May, June and July of 1990 and ended with an act of simulated sexual intercourse on 4 August 1990. The last act prompted her to move into her aunt and uncle's home.

She testified that she had told her friend and her friend's mother about Belcher's actions when they occurred, but no one else. She also testified that she told her aunt and uncle what happened. The final witness presented by the state was a doctor from the Child Protection Team who testified as to the child's physical condition as determined by a medical examination. He testified that the child had small "notches" in the hymenal tissue consistent with repeated digital penetration and inconsistent with an injury caused by a tampon.

Prior to the trial beginning, Belcher moved to exclude hearsay statements made by the victim to other witnesses and requested that the state be required to proffer any possible hearsay statements outside the jury's presence because these statements would not qualify as early outcry, pursuant to section 90.803(1), (2) or (3), Florida Statutes (1991). The state agreed to proffer any statements before they were admitted. During the trial, however, the court allowed the witnesses to testify to statements made to them by the victim about Belcher's behavior. There was no proffer made outside the presence of the jury. The defense objected repeatedly to this testimony.

The defense also objected to testimony from the victim's aunt that after the victim came to live with them, she would awake in the night screaming "Daddy, get away from me. Daddy, don't do that. Stop." The defense objected to this testimony as hearsay and irrelevant to any legitimate issue in the case. The trial court overruled the objection and allowed the witness to testify. Although the defendant requested a proffer outside the presence of the jury, again, the request was denied. Belcher elected not to put on any witnesses or evidence after the state rested its case.

Belcher was convicted and timely appeals. On appeal, Belcher argues that the requested instruction on voluntary intoxication should have been given as to all counts. The trial court gave the instruction as to the lesser included offenses, but Belcher urges this court to determine that the...