Gautreaux v. State, 90-1515
| Decision Date | 12 April 1991 |
| Docket Number | No. 90-1515,90-1515 |
| Citation | 588 So.2d 1 |
| Parties | Kirby John GAUTREAUX, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. 588 So.2d 1, 16 Fla. L. Week. D2326 |
| Court | Florida District Court of Appeals |
John D. O'Brien of O'Brien, Graham & Basford, Chartered, Panama City, for appellant/cross-appellee.
Robert A. Butterworth, Atty. Gen. and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee/cross-appellant.
AFFIRMED.
ON MOTION FOR REHEARING
Appellant seeks rehearing, and if rehearing is denied, the issuance of a written opinion setting forth the basis of the court's per curiam affirmance in this cause. The appealed issues concern the propriety of the jury instructions given in this sexual battery case, in which the victim had a history of schizophrenia, a circumstance not known to appellant when the sexual encounter occurred. Due to the unique facts of this case, we conclude that a brief opinion setting forth the reasoning underlying our decision is in order. Therefore, we accede to appellant's request for issuance of a written opinion. In all other respects, the motion for rehearing is denied.
Appellant's argument on appeal and on motion for rehearing is predicated on the assumption that, due to mental incapacity or defect, the victim was unable to consent. Beginning with this premise, appellant contends the instructions given virtually required the jury to find him guilty, because the victim was not competent due to mental incapacity or defect, and thus could not give a knowing and voluntary consent. The fallacy in this argument is that it overlooks an essential element of the crime of sexual battery, i.e., a finding that the accused "either use[d] or threaten[ed] to use a deadly weapon or use[d] actual physical force likely to cause serious personal injury." Sec. 794.011(3), Fla.Stat. (1989). Further, appellant's argument assumes the victim's mental incapacity to consent, a fact not established by the evidence.
Over the state's objection, the defense was permitted to cross-examine the victim as to her mental history, including information that she had been hospitalized at different times for treatment of mental problems, and that she had been diagnosed as schizophrenic. However, the defense was not permitted to place in evidence the opinion of an expert, because the opinion was based on a review of the victim's medical records and data which had been assembled ten years prior to the events on trial. The ten-year-old records and data were determined to be too stale to form a reliable basis for an opinion regarding the victim's mental competence during the time period at issue. The proffered expert opinion reflects that undifferentiated schizophrenia could be expected to be a continuing condition. However, this proffered testimony did not establish the link urged by appellant, i.e., that persons suffering from schizophrenia have a propensity to lie.
The victim was cross-examined at great length, thereby affording the jury an opportunity to assess both her credibility and her purported eccentricity. In addition, evidence was adduced by the state which refuted appellant's version of the incident. For example, appellant claimed he gave the victim fifty dollars for sex. However, the evidence established that the victim did not have fifty dollars on her person when she was discovered shortly after the incident, and the money was not found in the course of the investigation of the area where the sexual activity occurred. In addition, under the victim's account of events, appellant held something in his hand which she inferred was a knife, and he grabbed her forearm and forced her into his jeep. Medical testimony established that the victim's forearm was bruised in a manner consistent with her description of the encounter.
Because the defense introduced evidence of the victim's mental history, her competence became an issue at trial. In the circumstances, the trial judge was obligated to give that portion of the sexual battery standard jury instruction patterned after section 794.011(6), Florida Statutes, which provides:
(6) Evidence of the victim's mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary; and the court shall instruct the jury accordingly.
The sexual battery instruction given by the trial judge in this case follows:
... before you can find the defendant guilty of sexual battery, as alleged, upon a person twelve years of age or older, with the use of a deadly weapon or physical force, the State must prove the following four elements beyond a reasonable...
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Gautreaux v. State
...556 595 So.2d 556 Gautreaux (Kirby John) v. State NO. 79,019 595 So.2d 556 Supreme Court of Florida. Jan 28, 1992 Appeal From: 1st DCA 588 So.2d 1 Rev. ...