Kemp v. State, AU-181
| Decision Date | 11 February 1985 |
| Docket Number | No. AU-181,AU-181 |
| Citation | 464 So.2d 1238,10 Fla. L. Weekly 363 |
| Parties | 10 Fla. L. Weekly 363 James Lewis KEMP, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Louis O. Frost, Jr., Public Defender, and Jeanine Beard Sasser, Asst. Public Defender, Jacksonville, for appellant.
Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
Defendant was convicted of sexual battery with a deadly weapon. Section 794.011(3), Florida Statutes (1981). On appeal he argues that the trial court improperly denied him the opportunity to cross-examine the victim. We affirm.
The facts adduced at trial are that on the day of the assault, the victim, a 17-year-old high school senior, took a different route to school than she normally followed. The defendant was on the way to his place of employment when he accosted the victim and sexually attacked her. The victim was threatened with serious bodily harm if she resisted. Following the assault, the victim accurately described her attacker, and she picked the accused's photograph out of some 900 that she viewed. Testimony from the police officer established that, when the defendant was arrested, he was wearing clothes similar to those described by the victim. A medical examination of the victim some twelve hours after the attack showed focal hemorrhaging in the hymenal area, which the examining physician testified was probably caused by intercourse within the previous twenty-four to forty-eight hours. Upon this evidence, the defendant was convicted and sentenced to thirty-five years.
During direct examination, the prosecutor inquired if the defendant had asked the victim anything before he took her clothes off. The victim replied that the defendant asked her if she was menstruating and if she was a virgin. To both questions, she replied in the affirmative, 1 apparently in the hope of deterring her attacker. On cross-examination of the victim, the defense counsel sought to elicit testimony from the victim concerning her knowledge of sexual matters; and, upon proffer, out of the presence of the jury, the victim testified she was not a virgin at the time of the rape. 2 Later testimony from the examining physician established that the victim had told the doctor at the time she was examined that she was a virgin. Defense counsel urged that the proffered testimony would support defendant's theory that the victim had fabricated the rape to cover up the fact that she was pregnant and to obtain anti-pregnancy medicine. 3 The trial judge refused to allow the proffered testimony on the strength of section 794.022(2), Florida Statutes (1981), which provides:
(2) Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under s. 794.011; however, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court outside the presence of the jury that such activity shows such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent.
Section 794.022(2) forbids the admission into evidence of any specific instances of prior sexual activity between the victim and any person other than the offender except when consent of the victim is at issue.
Appellant contends that the exclusion of the proffered question and answer on the authority of section 794.022(2) has deprived him of his right to confront witnesses against him, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article I, section 16, of the Florida Constitution.
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Lewis v. State
...102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Mikenas v. State, 367 So.2d 606 (Fla.1978); State v. Wright, 473 So.2d at 269; Kemp v. State, 464 So.2d 1238 (Fla. 1st DCA 1985). A material fact at issue in this case was whether the victim was motivated to fabricate allegations that she had been sex......
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