Gutierrez v. State, 98-2709.

• Decision Date: 21 July 1999
• Docket Number: No. 98-2709.,98-2709.
• Citation: 739 So.2d 1175
• Parties: Miguel Angel GUTIERREZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

739 So.2d 1175

Miguel Angel GUTIERREZ, Appellant, v. The STATE of Florida, Appellee.

No. 98-2709.

District Court of Appeal of Florida, Third District.

July 21, 1999.

Bennett H. Brummer, Public Defender and Rosa C. Figarola, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and COPE and GREEN, JJ.

SCHWARTZ, Chief Judge.

Rejecting the appellant's primary claim of error on this appeal from his conviction for child abuse, we hold that the trial court properly admitted testimony of an acknowledgedly qualified expert physician, Dr. Apollo, that, to a "95 percent or more" medical certainty, the injuries sustained by the victim in this case were "consistent" with physical abuse. §§ 90.702, 90.703, Fla. Stat. (1997) ("Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact."); Glendening v. State, 536 So.2d 212, 220-221 (Fla.1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989); State v. Townsend, 635 So.2d 949 (Fla.1994). Compare Farley v. State, 324 So.2d 662 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976)(opinion that defendant committed crime inadmissable); Spradley v. State, 442 So.2d 1039 (Fla. 2d DCA 1983)(same). By the same token, the doctor's report, containing roughly the same opinion, was also correctly admitted. See § 90.803(6)(b), Fla. Stat. (1997).

Affirmed.