Gray v. State

• Decision Date: 01 August 1994
• Docket Number: No. 91-3457,91-3457
• Citation: 640 So.2d 186
• Parties: 19 Fla. L. Weekly D1665 Scott Thomas GRAY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 186

640 So.2d 186

19 Fla. L. Weekly D1665

Scott Thomas GRAY, Appellant, v. STATE of Florida, Appellee.

No. 91-3457.

District Court of Appeal of Florida,

First District.

Aug. 1, 1994.

Robert W. Pope of Pope & Henninger, P.A., St. Petersburg, for appellant.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant Scott Thomas Gray appeals from his conviction and sentence for three counts of sexual battery upon a person less than 12 years of age and two counts of lewd, lascivious or indecent act. Gray contends that the trial court erred in (1) denying defendant's motion for an independent psychological examination of the victim, (2) giving flight instructions, (3) restricting defendant's cross-examination of the victim and another witness, (4) allowing two state witnesses to give opinion testimony on a witness' credibility, (5) admitting similar fact testimony, and (6) giving Gray an improper sentence on two counts based on an improper guidelines calculation. We reverse the judgment and sentence based on the court's denial of defendant's motion for independent psychological examination. We will discuss the other issues because they may come up again at appellant's new trial.

Gray was a public school teacher who taught emotionally handicapped elementary school students. The victim of the charged offenses was J.D., a 10-year-old student in Gray's class at the time of the alleged acts. J.D., who was 17 at the time of the trial, testified to three incidents of sexual abuse by Gray. According to J.D., the first incident occurred when Gray had J.D. sit on his lap at the half-moon table in class. Gray poked his finger through a hole in J.D.'s pants and fondled J.D.'s penis. A second incident allegedly occurred when Gray sent the rest of the students outside and took J.D. behind a divider and made the child perform oral sex on him while Gray fondled J.D.'s penis. On the third occasion, Gray kept J.D. after school and they performed oral sex on each other. J.D. also indicated that at another time he went with Gray to Gray's home where the two performed oral sex on each other. J.D. testified that he did not want to do any of these things and that Gray told him that if he ever told anyone, no one would believe him. J.D. waited two years before telling anyone of the abuse. He indicated that he was afraid no one would believe him and was afraid of being embarrassed.

Two other students, R.P. and D.R., also testified. R.P., age 17 at trial, testified that he was a 10-year-old student in Gray's emotionally handicapped class during the same 1984/1985 school year. According to R.P., Gray took him behind a room divider about the first week of school and then almost every day thereafter and fondled his penis and genitals, ostensibly checking for a rash. Although other students were present, they could not see behind the divider. Gray also allegedly fondled R.P.'s genital area through his pants at the half-moon table in the room.

R.P. testified that he told his mother when these incidents occurred, but she did not do anything until stories of other allegations appeared in the newspapers. Although R.P. knew both J.D. and D.R., he indicated they were not close friends and did not discuss the allegations against Gray. On cross, R.P. admitted that he had a lot of emotional problems during this time period and did not like Gray. Upon the state's objection, defendant was not allowed to bring out the fact that R.P.'s brother molested him (penis/mouth contact) a couple of years before the incident with Gray until R.P. was 11 years old.

D.R., also 17 at the time of the trial, testified that Gray abused him when he was a 10-year-old student in Gray's emotionally handicapped class in 1984. He described three incidents of abuse. The first occurred in the classroom when Gray sent the other students out for recess. Gray called D.R. into the bathroom, where he had D.R. put his hand in Gray's pants pocket and feel his penis. The second incident also occurred in the bathroom after the other students were sent out. Gray exposed his penis and asked D.R. to put his mouth on it, but D.R. refused. The third incident occurred while Gray and D.R. were waiting for D.R.'s mother to appear for a conference after school. After D.R.'s mother called in to cancel the appointment due to car trouble, Gray led D.R. to a dark printing room where he made D.R. perform oral sex on him. D.R.'s mother corroborated D.R.'s testimony about the scheduled conference with Gray and indicated that Gray brought D.R. home later that day.

Two months later, D.R. told his cousin about the incidents, and she advised him to tell a teacher. D.R. testified that he told two teachers, and they made him confront Gray with the allegations. Gray denied the allegations; however, rumors spread around the school.

D.R.'s testimony was also corroborated by Deputy Carol Bishop, who interviewed D.R. on October 9, 1984. Deputy Bishop testified that D.R. "was very believable to me because he was very consistent and ... very detailed." Defendant objected to this statement on the basis that "it's a characterization." The court sustained the objection. Defendant made no request for curative instruction, for the statement to be stricken or for a mistrial. Bishop went on to testify that because the incident fell within the city limits, the police department took over the case.

Martin Miller, the Assistant Superintendent for Human Resources with Clay County School Board, received a complaint through the principal about D.R.'s allegations of sexual abuse by Gray. He concluded the allegations were unfounded based on inconsistencies in the report and the answers given by the child.

HRS investigator Pam Buckham testified that she was involved in the initial investigation of D.R.'s allegations in October 1984. HRS classified the report as "indicated." Buckham explained that "[i]n 1984, indicated was the highest classification that could be given to a case and it meant that the Department and myself believed that the abuse had occurred." She stated that HRS later changed the classification of D.R.'s case to "unfounded."

Martha Hix, a school bus driver during the relevant time frame, testified that J.D. and R.P. were passengers on her route. She said both boys were very disruptive children who had to be restrained in a harness when on the bus. She observed Gray strap in the children on occasion and found he treated them no differently than the other students. Both boys, according to Hix, were known to be "not truthful." Hix also noted that R.P. liked to expose himself in front of other children.

Deborah Gotting, another teacher of emotionally handicapped children at the time of the alleged incidents, testified that Gray's classroom was next to hers. Gray had six students in his 1984 self-contained class. Gotting thought Gray mainstreamed students early and that children who should have been with him all day were out of the classroom quite a bit. She also testified that Gray kept his door locked and his blinds closed. Gray told her it was because he sometimes smoked in the room. Gotting indicated that only three or four teachers kept children after school and, generally speaking, teachers did not take students home or on weekend field trips.

Gotting had J.D. in her class for two years prior to the alleged incidents. She said that J.D. had "explosive, unpredictable behavior, was impulsive and easily angered." Although J.D. exhibited a lot of aggression and anger, Ms. Gotting always found him to be honest with her.

Dr. Charles Jones, the head psychologist with the Clay County School Board, testified that he first examined J.D. in 1980 when J.D. was six years old. He found that J.D. was attention and affection seeking. He had self-stimulating dialogue, which the doctor explained meant that he would mutter to himself over and over and be oblivious to others around him. The doctor found that J.D. was of low average intelligence and was very emotional.

Dr. Harry Krop, a psychologist who has evaluated close to 3,000 sex offenders since 1977 and 300 to 400 children who have been sexually abused, testified that after examining the numerous documents (including 19 depositions, police reports, etc.) and testing and interviewing J.D. and D.R., he concluded that the boys exhibited certain psychological and emotional symptoms that are consistent with those often seen in sexually abused children. Krop discussed in great detail 19 child abuse criteria and found that 17 of these criteria applied to J.D. He also discussed the criteria with respect to D.R. briefly. He concluded that "within a reasonable degree of psychological certainty, and particularly compared to all of the other children that I have evaluated, that there are probably more criteria in this case in terms of the consistency with a child who would likely provide a story consistent with an event that he has actually experienced."

In evaluating J.D., Krop found the following criteria consistent with a child who has been sexually abused: (1) delayed disclosure; (2) embarrassed, fearful or uncomfortable composure when discussing the allegations; (3) consistency in disclosures; (4) denial of other suggested sexual abuse beyond scope of allegations; (5) willingness to admit he did not know something; (6) willingness to admit faults (J.D. acknowledged that he has blamed teachers for things in the past and has lied to avoid punishment); (7) serious and somber attitude; (8) logical or coherent story; (9) interruption factor (J.D. remembered janitor walked in during one incident); (10) connectual embedding (J.D. remembered events connected with other events); (11) lack of ulterior motive; (12) adverse consequences (in literature and experience, Krop found no false reports of male/male abuse in victim's age group and explained that at that age it is a great stigma for children to...