Bullington v. State

• Decision Date: 01 May 2020
• Docket Number: Case No. 2D18-2197
• Citation: 311 So.3d 102
• Parties: Eric Alan BULLINGTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

311 So.3d 102

Eric Alan BULLINGTON, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-2197

District Court of Appeal of Florida, Second District.

Opinion filed May 1, 2020.

Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.

SALARIO, Judge.

Eric Alan Bullington appeals from his convictions and sentences for two counts of sexual battery involving familial authority and one count each of lewd or lascivious molestation of a victim between twelve and fifteen by someone over eighteen, use of a child in a sexual performance, and incest. He was sentenced to two consecutive life terms for the sexual battery counts, consecutive fifteen-year terms for the lewd or lascivious molestation and sexual performance counts, and a five-year consecutive term for incest. The trial court erroneously admitted prior consistent statements that A.B. made to two detectives and a nurse practitioner describing the sexual abuse to which she was subject and identifying Mr. Bullington as her abuser. On the facts of this case, however, we deem the error harmless. Accordingly, we affirm.

I.

We refer to the victim in this case as A.B. She is Mr. Bullington's daughter and, in November 2016, was fourteen years old and in middle school. She told three of her school friends that something was going on at home that she did not like. One of them was concerned enough to suggest that A.B. talk to a teacher, which A.B. did. Afterward, the sheriff's office became involved. A.B. told detectives about multiple acts of sexual abuse committed against her by Mr. Bullington. An investigation followed, which included A.B. being physically examined by two nurse examiners.

Mr. Bullington was arrested and charged with (1) three counts of sexual battery involving familial authority, (2) one count of lewd or lascivious molestation, (3) one count of incest, (4) one count of use of a child in a sexual performance, which was based on a thumbnail image recovered from Mr. Bullington's cellular phone depicting an exposed penis and what was alleged to be A.B.'s arm, and (5) three counts of child pornography, which were based on three thumbnail images of what was alleged to be A.B.'s exposed breast or breasts also recovered from Mr. Bullington's cellular phone. The case went to trial in March 2018. At trial, and beginning in opening statements, Mr. Bullington's defense was that A.B. fabricated and reported the allegations giving rise to the charges so that she would be removed from her family, who lived in poor circumstances, and have a chance to live a better life.

A.B.'s testimony. A.B. was the State's first witness. She testified with specificity about the acts of sexual abuse performed by Mr. Bullington. Because she was not comfortable using explicit terminology—both when she first reported the abuse and at trial—she referred to the penis as "the part that he pees out of" or "his taco," the vagina as "the part that [she] pees out of" or her "taco," and breasts as "boobs" or "the things that get in the way." Using these descriptions, she described multiple acts of penis-to-vagina, mouth-to-penis, mouth-to-vagina, mouth-to-breast, and hand-to-breast contact in multiple locations beginning in fourth or fifth grade and continuing over a period of years. She also testified that Mr. Bullington penetrated her vagina with both his penis and his finger. She described the events in detail, including the placement of her and Mr. Bullington's bodies and when and where Mr. Bullington usually ejaculated, and she explained that her mother had sometimes witnessed the abuse and did not do anything about it. She testified that on the morning she told her friends that something was wrong, Mr. Bullington had placed his hand and mouth on her breast.

While A.B. was testifying, the State introduced several thumbnail images recovered from Mr. Bullington's cellular phone. These included three images depicting A.B. wearing a red blouse in positions that could be deemed suggestive—one with her arms outstretched above her head and two with her chest thrust forward. A.B. identified herself in the photographs and testified that Mr. Bullington told her to pose that way because he wanted to take pictures of her chest. Another image—the one that was the subject of the sexual performance count—depicted an exposed and erect penis near an arm. Although A.B. was not identifiable in the image because the arm was all one could see, she testified that it was her arm because there was a pink armband around her wrist that she recognized as one she wore. Finally, A.B. testified about the three thumbnail images depicting an exposed breast or breasts. Again, although A.B. was not identifiable in the images, she testified that the breasts depicted in the images were hers.

Perhaps anticipating that she would be cross-examined about it, the State asked A.B. whether anyone else had ever had improper sexual contact with her. A.B. testified that while visiting the home of one of Mr. Bullington's friends, the friend's son penetrated her vagina with his penis. This happened only once, but A.B. could not remember when. A.B. told her parents what happened, but nothing came of it.

On cross-examination, A.B. described the uncomfortable conditions in which she lived. At the time A.B. told her friends that something was wrong, she was living in a tent at a campground with Mr. Bullington, her mother, and her three siblings. The family had lost their home and had been living in hotels, other campgrounds, and once with A.B.'s aunt and uncle. A.B. testified that she had to sleep between her mother and her father in the tent. She could shower only once a week and could do laundry only infrequently. She did not enjoy many of the comforts that other children do. She did not like some of her parents' strict rules, including that she was not allowed to have a boyfriend. (On redirect, the State elicited testimony that Mr. Bullington told A.B. that this was because he was the only person who could be with her sexually.)

A.B. testified that around the time she reported the abuse, she had been reading a book about a young boy who was being abused by his mother. When he reported the abuse, he was moved to his aunt's house and lived a more comfortable life for a period of time. A.B. testified that she was not happy living in the tent with her family. After she reported the abuse, A.B. was moved to her aunt and uncle's house. She enjoys a substantially improved quality of life and is happy there. She testified that she told one of the detectives who interviewed her that one reason she reported the abuse was so that she would not have to live in the tent any longer.

The defense also cross-examined A.B. about the images recovered from Mr. Bullington's phone. With regard to the image of the penis and arm, A.B. testified that she recognized both her own hand and the hairband, which the defense tried to call into question with A.B.'s testimony during a deposition that she recognized only the hand. More generally, she testified that her father had images of other naked women on his phone, which A.B. knew because her mother had shown them to her.

The prior consistent statements. The deputy who initially interviewed A.B. also testified for the State. The State asked the deputy about the words A.B. used to identify sex organs, and he testified that she used the word "taco" to refer to both the penis and the vagina and "things that get in the way" to refer to the breasts. The State then asked what A.B. told him about what happened with Mr. Bullington. Mr. Bullington objected that such testimony was hearsay. The State responded that the testimony was admissible as a nonhearsay prior consistent statement under section 90.801(2)(b), Florida Statutes (2018). The trial court agreed and overruled the objection. The deputy thereafter testified in detail to the abuse A.B. described to him, and that description of the abuse was substantially similar to that testified to by A.B. earlier in the trial.

A second detective testified over a hearsay objection that A.B. told her that her father penetrated her vagina with his penis and that her mother knew. The detective also testified, based on what A.B. told her, regarding the number of times and places the encounters with Mr. Bullington had occurred. A.B. used the same terms for sexual organs in talking to the detective that she did during her testimony. Her statements were, in relevant part, consistent with her trial testimony.

A nurse practitioner who treated A.B. also testified, again over a hearsay objection, about what acts A.B. told her Mr. Bullington had committed—including a specific description of Mr. Bullington's oral and digital contact with her breasts on the morning A.B. reported the abuse, a specific description of an episode of Mr. Bullington penetrating her vagina two days prior, and more general descriptions of sexual abuse. As the State began to elicit this testimony, Mr. Bullington objected on hearsay grounds. The trial court overruled the objection, reasoning that the testimony was admissible under section 90.803(4) because it involved statements for purposes of medical diagnosis or treatment. Mr. Bullington did not again object to the nurse practitioner's testimony, even as she testified that A.B. identified him as the perpetrator of the acts of sexual abuse she reported.

The State's other evidence. In addition to the testimony concerning A.B.'s statements about the abuse, the State had two principal elements of proof. Through the testimony of two nurse practitioners who examined A.B., the State presented evidence of injuries to parts of A.B.'s vagina that were consistent with penetration and, in some instances, showed signs that healing had been disrupted by regular contact over time, thus suggesting repeated...