J.H.C. v. State, No. 93-02311

CourtCourt of Appeal of Florida (US)
Writing for the CourtALTENBERND; Finally; SCHOONOVER, A.C.J., and HALL
Citation642 So.2d 601
Parties19 Fla. L. Weekly D1868 J.H.C., Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 93-02311
Decision Date07 September 1994

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

Page 602

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...

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6 practice notes
  • Hadden v. State, No. 93-436
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 1996
    ...alleged victim. Ball v. State, 651 So.2d 1224 (Fla. 2d DCA 1995); Audano v. State, 641 So.2d 1356 (Fla. 2d DCA 1994); J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 1994); Drawdy v. State, 644 So.2d 593 (Fla. 2d DCA In Flanagan, supra, the case on which appellant relies to support his contenti......
  • McLean v. State, No. 2D98-3582.
    • United States
    • Court of Appeal of Florida (US)
    • April 5, 2000
    ...the opinion testimony in this case in light of the potential unfair prejudice the expert opinion might have caused. See J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 1994) (holding psychologist's expert opinion that the child victim fit a "sexually abused child profile" was inadmissible becau......
  • Clark v. State, No. 94-0019
    • United States
    • Court of Appeal of Florida (US)
    • May 3, 1995
    ...the admissibility of expert testimony concerning the use of sexual abuse profiles in cases involving older victims. In J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 1994), the court held the testimony of a psychologist, who examined the teenage victim, that the Page 986 teenager fit a sexuall......
  • Ponder v. State, No. 93-00089
    • United States
    • Court of Appeal of Florida (US)
    • December 2, 1994
    ...ex rel. T.B., --- U.S. ----, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); see also Abshire v. State, 642 So.2d 542 (Fla.1994); J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 3 State v. Neil, 457 So.2d 481 (Fla.1984). ...
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6 cases
  • Hadden v. State, No. 93-436
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 1996
    ...alleged victim. Ball v. State, 651 So.2d 1224 (Fla. 2d DCA 1995); Audano v. State, 641 So.2d 1356 (Fla. 2d DCA 1994); J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 1994); Drawdy v. State, 644 So.2d 593 (Fla. 2d DCA In Flanagan, supra, the case on which appellant relies to support his contenti......
  • McLean v. State, No. 2D98-3582.
    • United States
    • Court of Appeal of Florida (US)
    • April 5, 2000
    ...the opinion testimony in this case in light of the potential unfair prejudice the expert opinion might have caused. See J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 1994) (holding psychologist's expert opinion that the child victim fit a "sexually abused child profile" was inadmissible becau......
  • Clark v. State, No. 94-0019
    • United States
    • Court of Appeal of Florida (US)
    • May 3, 1995
    ...the admissibility of expert testimony concerning the use of sexual abuse profiles in cases involving older victims. In J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 1994), the court held the testimony of a psychologist, who examined the teenage victim, that the Page 986 teenager fit a sexuall......
  • Ball v. State, No. 93-04281
    • United States
    • Court of Appeal of Florida (US)
    • March 3, 1995
    ...are of a certain age, the jury does not need an expert's help to decide whether or not the incidents actually occurred. J.H.C. v. State, 642 So.2d 601 (Fla. 2d DCA 1994); Audano v. State, 641 So.2d 1356 (Fla. 2d DCA We note that the trial judge attempted to confine the expert testimony in t......
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