J.H.C. v. State, 93-02311

• Decision Date: 07 September 1994
• Docket Number: No. 93-02311,93-02311
• Citation: 642 So.2d 601
• Parties: 19 Fla. L. Weekly D1868 J.H.C., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 601

642 So.2d 601

19 Fla. L. Weekly D1868

J.H.C., Appellant, v. STATE of Florida, Appellee.

No. 93-02311.

District Court of Appeal of Florida,

Second District.

Sept. 7, 1994.

Robert L. Doyel, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

ALTENBERND, Judge.

J.H.C. ¹ appeals his convictions and sentences for two counts of sexual battery on a child under the age of twelve, and seven counts of engaging a child in sexual activity by a person in familial authority. We reverse and remand for a new trial because of potential gender discrimination during jury selection.

When this case was tried, no Florida appellate court had yet applied State v. Neil, 457 So.2d 481 (Fla.1984), to gender discrimination. During jury selection, the state used peremptory challenges to strike several prospective male jurors. The defendant objected to these strikes, and made a showing sufficient to require a Neil inquiry. The trial court declined to conduct a Neil inquiry because it did not believe gender discrimination was a proper basis for an objection to the use of a peremptory challenge. Recently, our supreme court has expanded Neil to include gender discrimination and has ruled that the only appropriate appellate remedy is reversal for a new trial. Abshire v. State, 642 So.2d 542 (Fla.1994). Accordingly, we reverse and remand for a new trial. We address two of the additional issues raised on appeal because they involve matters that could affect a new trial.

First, the trial court erred in permitting the state to use an expert, a child psychologist, to vouch for the credibility of a victim who was a teenager at the time of trial. The circumstances surrounding the use of this expert are virtually identical to those presented in Audano v. State, 641 So.2d 1356 (Fla. 2d DCA 1994). In Audano we held that the trial court abused its discretion in admitting such "inherently prejudicial" expert testimony where the victim was mature enough so that a jury could reach its own determination of her credibility. Id., at 1360-1361.

J.H.C. was charged with multiple counts of sexual misconduct with his daughter. In 1987, when the alleged conduct began, the daughter was almost twelve years old. When she testified at trial, she was seventeen years old. She was an articulate witness, remembered specific events, and was able to identify her father as the defendant. Because there were no eye witnesses to any of the events and no force or violence was involved, the state's case depended largely upon the daughter's credibility.

The state called Kathryn Kuehnle, a child psychologist, to render an opinion that the daughter fit a "sexually abused child profile." This opinion was based on interviews with the daughter, buttressed by several common psychological tests. Those tests included: (1) the Wechsler Intelligence Scale, an IQ test; (2) the Woodcock-Johnson Test of Achievement, a school placement examination; (3) the Minnesota Multiphasic Personality Inventory for Adolescents (MMPI); and (4) the Rorshack and Thematic Apperception Tests, two common projective tests.

Over objection, the trial court decided that Ms. Kuehnle could not answer questions concerning the daughter's truthfulness, but that she could render an opinion on whether the daughter fit within the sexually abused child profile, i.e., whether she had been a victim of sexual abuse. The flaw in this ruling arises from the fact that under current methods of psychology, credibility is central to the "diagnosis" of this profile.

As in Audano, we conclude that the age of the victim is important. A psychologist may be able to assist a jury in understanding a young child's unusual responses to sexual abuse when the child is not able to provide an accurate history. A psychologist may also be able to provide base information concerning an alleged victim's intelligence and mental ability that would help the jury evaluate that witness's testimony. But when the victim is older...