Flanagan v. State, No. 87-871

CourtCourt of Appeal of Florida (US)
Writing for the CourtMINER; JOANOS; ERVIN, J., concurs in part and dissents in part with opinion with which ZEHMER, J., concurs and SMITH; SMITH; ZEHMER, J., concurs in part and dissents in part with opinion with which ERVIN; BARFIELD; WOLF, J., concurs with opinion with
Citation586 So.2d 1085
Decision Date19 July 1991
Docket NumberNo. 87-871
PartiesDennis FLANAGAN, Appellant, v. STATE of Florida, Appellee. 586 So.2d 1085, 16 Fla. L. Week. D1935, 16 Fla. L. Week. D2693

Page 1085

586 So.2d 1085
Dennis FLANAGAN, Appellant,
v.
STATE of Florida, Appellee.
No. 87-871.
586 So.2d 1085, 16 Fla. L. Week. D1935, 16 Fla. L. Week. D2693
District Court of Appeal of Florida,
First District.
July 19, 1991.
On Motion for Rehearing or to
Certify Conflict or to
Certify Question
Oct. 14, 1991.

Page 1087

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

Robert A. Butterworth, Atty. Gen., A.E. Pooser, IV and Gypsy Bailey, Asst. Attys. Gen., for appellee.

EN BANC

MINER, Judge.

Raising several issues, appellant, Dennis Flanagan, seeks review of his conviction and life sentence for sexually battering his mentally retarded 9 year old daughter. Specifically, he asserts: 1) the trial court erred in admitting a physician's testimony as to the identity of the child's sexual abuser pursuant to the medical diagnosis/treatment exception to the hearsay rule; 2) the trial court erred in allowing the jury to view videotaped testimony of the victim during its deliberations; 3) the trial court erred in admitting expert testimony regarding general characteristics of child sex abuse offenders and the home environments in which child sexual abuse frequently occurs; 4) the trial court erred in admitting similar fact evidence relating to a sexual act appellant committed on another child; and 5) the trial court erred in denying appellant's motion for a mistrial based upon improper prosecutorial comment and based upon certain testimony of a separately charged individual. For the reasons which follow, we affirm Flanagan's conviction and sentence.

The charges on which Flanagan was tried stemmed from incidents which, according to a state witness, occurred over a period of a year or more. The witness, Brenda Hartley Harrison, appellant's erstwhile live-in girlfriend, testified that she met appellant in 1983 shortly before Christmas at a flea market in Albany, Georgia. At the time, she was 15 years old and he was 30. In January of 1984, she ran away with appellant, a married truck driver, and travelled to South Florida with side trips to Mississippi and Alabama. After about two months, she returned to her Albany home. Within a day or two of her return, appellant went to Albany to get her and the two of them returned to Wakulla County, Florida, where they moved into a home on his father's property where appellant's then wife, Peggy, was living. This housekeeping arrangement was apparently unacceptable to Peggy and she moved out after a day or two. Shortly thereafter, Flanagan and Brenda moved out of the home and

Page 1088

into an older model Dodge van until a more suitable living place could be found.

By putting two small trailers together and building on, appellant and Brenda solved their housing problem. In June of 1985, Brenda, at age 16, gave birth to the couple's son and the following month appellant's two daughters from one of his prior marriages, T.F., 7 years old at the time and the victim in this case and C.F., the victim's 5 year old sister, moved in with them.

Brenda next testified that shortly after the children arrived, appellant stated to her that he was going to teach his daughters how to have sexual intercourse before they grew up and before they were "forced into it by someone else". According to Brenda, appellant decided to have sex with T.F. because C.F., although two years younger, was much more intelligent than T.F. and would be more likely to "go and tell" than would T.F.

His choice made, Dennis Flanagan, if Brenda's testimony be believed, on multiple occasions subjected his little girl to all manner of unspeakable sexual outrages, the detailing of which on these pages would add but little to the jurisprudence of this state. It is enough to say that the acts Brenda described would evoke in all but the most insensitive persons, feelings of shock and revulsion. From time to time, at appellant's direction, Brenda assisted him in these acts. 1 She recounted one occasion in which she held T.F.'s arm to steady the little girl while appellant was lying on his back engaged in intercourse with the child. Fear of appellant was the reason she gave for her participation.

After a false start or two, Brenda finally left appellant to go to her grandmother's home in Louisiana. However, before she left, she told appellant's former wife, Peggy Fulton, about appellant's sexual abuse of T.F. Together, she and Peggy told Imogene Whaley, a school bus driver on whose bus T.F. regularly rode from her home to Sopchoppy Elementary School and back. Mrs. Whaley advised Mr. Coyle, principal of Sopchoppy Elementary School, who, in turn, reported the matter to John Harper, a district intake counselor with the State Department of Health and Rehabilitative Services. (HRS).

On November 19, 1986, John Harper interviewed T.F. at school in the presence of Deborah Thibos, a guidance counselor at Sopchoppy Elementary School. After the child confirmed the report he had received, he notified law enforcement authorities and drove T.F. to Tallahassee for the purpose of conducting what is known as a "first strike" interview. This interview was videotaped, 2 after which the child was taken to Dr. James Penrod, a pediatrician member of the Tallahassee Child Protection Team for a medical examination.

Prior to his examination of T.F., Dr. Penrod was advised that the child had alleged that her father had sexually abused her. Upon entering the examination room, the doctor introduced himself and, because T.F. was a young child and "very reticent because of the situation", used what had been told to him about her allegations "as a basis for my role in questioning". He said: "I understand you have had some problems with your father. What has happened with your father?" T.F. answered: "He tried to stick me". As Dr. Penrod drew her out with further questioning, T.F. said that appellant had "tried to stick [his penis] in me" three or four times and that "he put Vaseline on it". She also denied that anyone else touched her or tried to stick anything in her.

Dr. Penrod next testified as to the results of his physical examination of T.F. He found in this pre-pubital youngster an abnormally enlarged vaginal opening, a wholly relaxed vaginal muscle and no remnant of a hymeneal membrane. He described

Page 1089

the sum of these findings as highly unusual in a child so young and as being consistent with repeated vaginal penetrations.

A few days after Dr. Penrod examined T.F., she was taken to Dr. Evelyn Goslin, a child psychologist and an expert in child sexual abuse for evaluation and an assessment of whether or not T.F. had been traumatized and to make recommendations as to a course of treatment. During this evaluation, Dr. Goslin did not mention anything of a sexual nature to T.F. and the child volunteered nothing about her earlier allegations. After her interview with Dr. Goslin, T.F. and her younger sister, then in the custody of H.R.S., were returned to a shelter for abused children. Thereafter, they were placed with their paternal grandparents.

When law enforcement officers sought to arrest appellant on the instant charges, he was out of the area in connection with his truck driving occupation. Apparently, during this or perhaps an earlier trip, he had made the acquaintance of another young woman, Brenda Lutz, a waitress at a truck stop he frequented. He asked her to marry him, she accepted, and the two of them eventually began living together somewhere in the Ocala, Florida area.

According to Brenda Lutz's trial testimony, while on their way to purchase an engagement ring for her, appellant, who was driving a truck owned by Sprayberry Trucking Company of Tallahassee, stopped at a roadside telephone booth to call his father in Wakulla County on some matter. At that time, he learned that officers were looking for him in connection with sexual abuse charges involving his daughter. He completed the call and then told Brenda about the charges "up in Tallahassee". The following day, appellant and Brenda Lutz drove to Tallahassee in the Sprayberry truck and picked up his van at the truck yard. From there, appellant went to consult with an attorney after which he and Brenda left in a Sprayberry truck for Virginia.

Upon their return from Virginia, appellant again called his father, this time from Wildwood, Florida. After the call, he told Brenda that they needed to "get out of there quickly". They returned to Ocala and rented a trailer. After writing to his employer to advise where it could be found, appellant drove the Sprayberry truck to the Spur truckstop in Ocala and abandoned it. In this letter, appellant told his employer that by the time "they got the letter, that he would be out of state".

Using the name Brent Lutz and Brenda's Social Security number, appellant soon found a job in the Ocala area. 3 He was, however, without transportation as Brenda's car was not operable. This necessitated his return to the Tallahassee area to pick up his van. When he got to the home of a friend who was keeping the van for him, law officers arrived at the friend's home. He escaped capture at that time by having his friend lock him in the trunk of the friend's car while the friend's wife drove appellant's van to a rendezvous point outside Tallahassee. There, appellant got into his van and returned to Ocala. Shortly thereafter, on a tip from Brenda Lutz, appellant was arrested at his place of employment on the instant charges by a Marion County deputy sheriff. Upon his arrest he denied his true identity in the face of mounting evidence to the contrary and only admitted he was Flanagan when booked at the Marion County Jail.

In addition to the substantive testimony at trial of Drs. Penrod and Goslin, T.F., John Harper, Ms. Thibos, Brenda Harrison and Brenda Lutz, V.L., a child 11 years old at the time of the events she described, testified over defense objection that during the time period in question,...

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37 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...599 So.2d 674 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision); Flanagan v. State, 586 So.2d 1085 (Fla. 1st DCA 1991) (en banc decision released without antecedent publication of panel decision), approved in part by 625 So.2d 827 (Fla.1993); B......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...599 So.2d 674 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision); Flanagan v. State, 586 So.2d 1085 (Fla. 1st DCA 1991) (en banc decision released without antecedent publication of panel decision), approved in part by 625 So.2d 827 (Fla.1993); B......
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1997
    ...828. In our decision in Flanagan, we found helpful Judge Ervin's concurring and dissenting opinion. Id. at 828-29; see Flanagan v. State, 586 So.2d 1085, 1101 (Fla. 1st DCA 1991) (Ervin, J., concurring and dissenting). In his opinion, Judge Ervin discussed not only "profile testimony" but a......
  • Vargas v. State, Nos. 92-556
    • United States
    • Court of Appeal of Florida (US)
    • June 1, 1994
    ...is generally accepted in the scientific community, and referring to Judge Ervin's concurring and dissenting opinion in Flanagan v. State, 586 So.2d 1085, 1112-20 (Fla. 1st DCA 1991) for its discussion of general acceptance); and Stokes v. State, 548 So.2d 188 (Fla.1989) (court conducted de ......
  • Request a trial to view additional results
37 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...599 So.2d 674 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision); Flanagan v. State, 586 So.2d 1085 (Fla. 1st DCA 1991) (en banc decision released without antecedent publication of panel decision), approved in part by 625 So.2d 827 (Fla.1993); B......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...599 So.2d 674 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision); Flanagan v. State, 586 So.2d 1085 (Fla. 1st DCA 1991) (en banc decision released without antecedent publication of panel decision), approved in part by 625 So.2d 827 (Fla.1993); B......
  • Hadden v. State, Nos. 87574
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1997
    ...828. In our decision in Flanagan, we found helpful Judge Ervin's concurring and dissenting opinion. Id. at 828-29; see Flanagan v. State, 586 So.2d 1085, 1101 (Fla. 1st DCA 1991) (Ervin, J., concurring and dissenting). In his opinion, Judge Ervin discussed not only "profile testimony" but a......
  • Vargas v. State, Nos. 92-556
    • United States
    • Court of Appeal of Florida (US)
    • June 1, 1994
    ...is generally accepted in the scientific community, and referring to Judge Ervin's concurring and dissenting opinion in Flanagan v. State, 586 So.2d 1085, 1112-20 (Fla. 1st DCA 1991) for its discussion of general acceptance); and Stokes v. State, 548 So.2d 188 (Fla.1989) (court conducted de ......
  • Request a trial to view additional results

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