Bloodworth v. State, BL-333

• Decision Date: 24 March 1987
• Docket Number: No. BL-333,BL-333
• Citation: 504 So.2d 495,12 Fla. L. Weekly 838
• Parties: 12 Fla. L. Weekly 838 Alexander BLOODWORTH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 495

504 So.2d 495

12 Fla. L. Weekly 838

Alexander BLOODWORTH, Appellant, v. STATE of Florida, Appellee.

No. BL-333.

District Court of Appeal of Florida,

First District.

March 24, 1987.

Michael E. Allen, Public Defender, Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

NIMMONS, Judge.

The appellant was convicted of the life felony of sexual battery with the use of a deadly weapon under Section 794.011(3), Florida Statutes, and sentenced to life imprisonment pursuant to the recommended sentence under the sentencing guidelines. On this appeal he attacks both the conviction and sentence and raises several issues, two of which merit discussion.

Appellant asserts as reversible error the trial court's allowing over objection the examining physician, an expert in obstetrics and gynecology who had examined 150-200 purported rape victims, to express his opinion that the 29 year old female victim had recently engaged in nonconsensual intercourse.

Prior to his expression of the subject opinion, Dr. Pollock testified that, upon his examination of the victim two and one half hours after the alleged assault, he noted dirt and fresh minor scratches on her back and some erythema (redness) and swelling on her neck. Its origin would have most likely been within six hours of his examination. Dr. Pollock also described some microabrasions--or shallow tears which do not bleed--in the skin at the very bottom of the vagina. He opined that they would have been caused within twelve hours of the examination as they had not yet begun to heal. He said that the tears were consistent with penetration by a foreign object and that the trauma which he observed was consistent with unaroused, unlubricated intercourse and inconsistent with lubricated intercourse.

On cross-examination, Dr. Pollock admitted that the victim's pelvic symptomatology could be consistent with consensual intercourse with insufficient lubrication, but only under "very rare and selected circumstances." He also said that of the many women he has examined who have engaged in recent consensual sex--he examines many such women in his ob/gyn practice--he has never observed in such patients trauma like that of the subject victim.

On redirect, the state elicited from Dr. Pollock, over objection, the subject opinion that the victim had engaged in recent nonconsensual intercourse. We are of the view that the trial court did not err in allowing this opinion testimony. See Section 90.703, Florida Statutes ¹; Ferradas v. State, 434 So.2d 24 (Fla. 3rd DCA 1983) (opinion that rape victim's injuries were consistent with forced sexual intercourse properly admitted); Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986) (opinion testimony of psychiatrist that victim of alleged lewd assault was suffering from a condition known as "post traumatic stress syndrome" properly admitted notwithstanding absence of any demonstrable evidence of sexual trauma).

We find Farley v. State, 324 So.2d 662 (Fla. 4th DCA 1975), relied upon by the appellant, distinguishable. Although the Fourth District found it reversible error to admit the doctor's opinion that the victim had been raped, the Farley court was careful to, as it said, "limit our decision here strictly to the facts at hand." Id. at 664. It was undisputed that the prosecutrix in Farley became intoxicated while drinking at a lounge and that she left the lounge with two strangers, also intoxicated, and proceeded to a motel room. The prosecutrix testified that she was assaulted and raped and waited until the two defendants were asleep before she left the room, her face badly beaten, seeking help. One of the defendants elected to testify. He said that the prosecutrix engaged in voluntary sex with both defendants, that they fell asleep, and that the other defendant awakened to find her rifling his pants pockets, and that he began to beat her. He said that her face was bleeding profusely, that he toweled her off and told her to leave.

The Farley court pointed out that "the facts are such that the claims made by the prosecutrix and defendants are equally credible," id. at 662, observing also that, although the prosecutrix had been badly bruised about the face, no evidence of trauma was present elsewhere on her body. Id. at 663. The court further stated:

We are very aware that in some cases this very same testimony might be simply harmless error, if error at all, and we limit our decision here strictly to the facts at hand.

Id. at 664.

The evidence in the case at bar is materially and substantially distinguishable from Farley. As earlier noted, there was evidence of trauma in and around the victim's genitalia. Further we do not have a situation, as in Farley, where the victim's version and the defendant's version were equally plausible.

The victim in the instant case, having worked a late shift at the Pic N'Save Store, was at the Main Street Restaurant in the early morning hours on the date of the offense. She testified that the defendant, who appeared to have been drinking, came in and sat at the counter next to her. She said that they spoke to each other and that his language was offensive, for which she admonished him. When she left the restaurant, she said they did not leave together but he followed close behind her. When she arrived in the vicinity of a church on Main Street, she said that the defendant grabbed her from behind, lifted her off the ground and took her to a wall near the church. She said that he threatened to kill her and had his hands around her neck choking her. He also displayed a sharp blade insisting that she touch it to see how sharp it was. After this, she was made to lie down and submit to the defendant's sexual demands, including forced intercourse.

Fortuitously, two police officers, who were in the area answering an unrelated call, came upon the scene and caught the defendant on top of the victim as he was still engaged in intercourse. Officer LaForte described the victim as hysterical and crying. He also testified that the victim's neck clearly bore what appeared to be fingerprint marks. LaForte also testified that he recovered from the defendant's front pants pocket a "box cutter" with a sharp retractable razor blade. He said that the blade was in the exposed position.

In the face of such overwhelming evidence, this defendant engaged in a singularly unsuccessful attempt, through cross examination of the state's witnesses and presentation of witnesses of his own, to create an inference that the victim had consented to sex. ² Farley is patently distinguishable.

Even were we to find that the trial court erred in allowing Dr. Pollock to opine that the victim had engaged in recent nonconsensual intercourse, such error would be harmless.

Appellant also attacks his sentence of life imprisonment. He says it is cruel and unusual punishment and therefore a violation of the Eighth Amendment. He erroneously relies upon Solem v....