Hernandez v. State, No. 89-2144
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | PER CURIAM; GUNTHER J., and SHAHOOD, GEORGE A.; POLEN; POLEN |
| Citation | 16 Fla. L. Weekly 537,575 So.2d 1321 |
| Decision Date | 20 February 1991 |
| Docket Number | No. 89-2144 |
| Parties | 16 Fla. L. Weekly 537 Francisco HERNANDEZ, Appellant, v. STATE of Florida, Appellee. |
Page 1321
v.
STATE of Florida, Appellee.
Fourth District.
Rehearing and Certified Question
Denied April 4, 1991.
Page 1322
Douglas N. Duncan of Wagner, Nugent, Johnson, Roth, Romano, Eriksen and Kupfer, P.A., West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John M. Koenig, Jr., Asst. Atty. Gen., West Palm Beach, for appellee.
PER CURIAM.
The appellant, Francisco Hernandez, appeals his convictions for two counts of lewd act and one lewd assault. He contends that the trial court erred by allowing opinion testimony as to the victim's veracity, allowing testimony of a prior act of similar misconduct, failing to correctly instruct the jury on lewd assault, and denying his new trial motion to vacate one of the two lewd act convictions. We agree and reverse.
The victims, two girls, ten and eleven-years-old, were playing in a public library garden. Both girls testified that the appellant, a gardener, exposed his penis and masturbated in front of them. They additionally testified that Hernandez lifted up one of the girl's shirts and fondled her breasts. The state charged Hernandez with one count of lewd assault by fondling a child's breasts and two counts of lewd act by exposing himself and masturbating in front of the two girls. At trial, the trial court allowed two police officers and one teacher to testify as to the victim's truthfulness. Additionally, the trial court admitted testimony that another child observed Hernandez attempt to fondle one of the victim's breast the prior spring. Hernandez testified that the allegations were false and that he knew the girls because he frequently chased them out of the garden.
We agree with Hernandez's assertion that trial court erred in allowing opinion testimony as to the victim's veracity. A witness invades the jury's exclusive province when that witness gives his or her personal views of the creditability of any other witness. Boatwright v. State, 452 So.2d 666, 668 (Fla. 4th DCA 1984). In the instant case, the cumulative effect of two police officers and one teacher's testimonies that the victims' accusations were truthful invaded the province of the jury and brought legitimacy to those accusations. This court cannot say beyond a reasonable doubt that this error did not affect the jury's verdict and thus, we cannot say this was harmless error. The testimony, compounded by the witnesses' authoritative positions, outweighed Hernandez's lack of objection. State v. DiGuilio, 491 So.2d 1129 (Fla.1989). Hernandez correctly contends that the trial court erred by allowing the state to cross-examine him as to an alleged prior act of similar misconduct and
Page 1323
allowing another witness to testify to the act in rebuttal. Contrary to the state's assertion, defense counsel did not open the subject of any prior acts of...To continue reading
Request your trial
-
Childers v. State, No. 1D03-2154.
...(holding improper a question of a witness which sought "to elicit the individual and personal view of the witness."); Hernandez v. State, 575 So.2d 1321, 1322 (Fla. 4th DCA 1991) (holding that it was reversible error to admit testimony of police officers and teacher that sexual abuse victim......
-
Childers v. Floyd, No. 08-15590 (11th Cir. 6/8/2010), No. 08-15590.
...improper a question of a witness which sought "to elicit the Page 49 individual and personal view of the witness."); Hernandez v. State, 575 So. 2d 1321, 1322 (Fla. 4th DCA 1991) (holding that it was reversible error to admit testimony of police officers and teacher that sexual abuse victim......
-
Dempsey v. Shell Oil Co., No. 90-1858
...(1946); O'Steen v. State, 506 So.2d 476 (Fla. 1st DCA 1987); McCormick on Evidence Sec. 47 (3d ed. 1984). See also Hernandez v. State, 575 So.2d 1321 (Fla. 4th DCA 1991); Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981); Fuente v. State, 549 So.2d 652 (Fla.1989). Ehrhardt comments on t......
-
Stinfil v. State, No. 94-2363
...for appellee. EN BANC PER CURIAM. We affirm the conviction and sentence of the appellant. In so doing, we recede from Hernandez v. State, 575 So.2d 1321 (Fla. 4th DCA 1991), approved on other grounds, 596 Page 672 So.2d 671 (Fla.1992), to the extent that Hernandez held that because of the a......
-
Childers v. State, No. 1D03-2154.
...(holding improper a question of a witness which sought "to elicit the individual and personal view of the witness."); Hernandez v. State, 575 So.2d 1321, 1322 (Fla. 4th DCA 1991) (holding that it was reversible error to admit testimony of police officers and teacher that sexual abuse victim......
-
Childers v. Floyd, No. 08-15590 (11th Cir. 6/8/2010), No. 08-15590.
...improper a question of a witness which sought "to elicit the Page 49 individual and personal view of the witness."); Hernandez v. State, 575 So. 2d 1321, 1322 (Fla. 4th DCA 1991) (holding that it was reversible error to admit testimony of police officers and teacher that sexual abuse victim......
-
Dempsey v. Shell Oil Co., No. 90-1858
...(1946); O'Steen v. State, 506 So.2d 476 (Fla. 1st DCA 1987); McCormick on Evidence Sec. 47 (3d ed. 1984). See also Hernandez v. State, 575 So.2d 1321 (Fla. 4th DCA 1991); Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981); Fuente v. State, 549 So.2d 652 (Fla.1989). Ehrhardt comments on t......
-
Stinfil v. State, No. 94-2363
...for appellee. EN BANC PER CURIAM. We affirm the conviction and sentence of the appellant. In so doing, we recede from Hernandez v. State, 575 So.2d 1321 (Fla. 4th DCA 1991), approved on other grounds, 596 Page 672 So.2d 671 (Fla.1992), to the extent that Hernandez held that because of the a......