Kitchings v. State
| Decision Date | 12 February 2020 |
| Docket Number | No. 4D18-1929,4D18-1929 |
| Citation | 291 So.3d 181 |
| Parties | Gary Timothy KITCHINGS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ashley Litwin and Marc David Seitles of Seitles & Litwin, P.A., Miami, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
Gary Kitchings appeals his conviction and sentence for three counts of sexual battery, one count of burglary, and one count of false imprisonment.
On the night of the criminal incidents, Kitchings was a 57-year-old Uber driver with no prior exposure to the justice system other than speeding tickets. His accuser, M.R., was a mid-thirties woman who entered Kitchings' car as an Uber passenger. The incidents forming the basis of the criminal charges occurred in Kitchings’ car and in M.R.’s condominium. Kitchings’ defense at trial was that his sexual contact with M.R. was consensual.
We reverse, for two reasons. First, the trial court improperly refused to allow the defense to introduce Kitchings' initial statement to the police to rebut an implied charge of recent fabrication. Second, the court improperly admitted the entirety of one of M.R.'s previous statements into evidence.
M.R.'s testimony
M.R. splits her time between Florida and New York. After attending a Sunfest concert, she went for drinks with friends before booking an Uber pool to take her home. She took a screenshot of the car when she booked it, as was her usual practice.
When Kitchings pulled up, no one else was in the car, so M.R. sat in the back. A few minutes later, they picked up two more passengers, so she moved to the front seat. The other passengers were in the car for about 15 minutes before they were dropped off.
M.R. testified that as soon as they got on I-95, Kitchings started hitting on her, saying things like, She did not like the way the conversation was going, so she tried to ignore him by looking at pictures on her phone.
During the drive, Kitchings tried to touch M.R. between her legs, ripping her pantyhose in the process, but M.R. pulled his hand away. He then grabbed her left hand and put it on his pants, but she pulled her hand away. Kitchings unzipped his pants and pulled them down. He took M.R.'s hand and put it on his now-exposed penis. M.R. unbuckled her seat belt and pulled the door handle to try and jump out of the car, but the door was locked. Kitchings told her that he had a gun under the seat and threatened to shoot her if she did not do what he said. M.R. never saw a gun that evening, but she believed there was a chance that he had a gun under his seat.
Kitchings told M.R. to refasten her seat belt. He said he wanted her to "suck [him]." He then pushed M.R.'s head down on top of his penis while she pleaded, "Please, no, I don't really want to do this." After more protests, she performed oral sex on Kitchings. He told M.R. that he was going to urinate in her mouth and that he wanted her to swallow it, which she did. When M.R. tried to lift her head back up, Kitchings pushed it back down and stated that he was going to ejaculate in her mouth and he wanted her to swallow it, which she did.
When they arrived at her neighborhood, M.R. told Kitchings to let her off at the unoccupied guard gate, but he insisted on driving her home. M.R. guided him to the quadplex where she lived. Once he stopped the car, M.R. ran to her door and opened it. When she turned around to close the door, Kitchings was right there. He pushed her inside and closed the door while M.R. screamed for help. She thought Kitchings was holding something under his shirt, but she did not see what it was. M.R.'s dogs were barking. Kitchings threatened to kill her and her dogs if she did not do what he said. He said, "We're going to your bedroom," and M.R. led him there.
In M.R.'s bedroom, Kitchings told her to take off her shoes. She complied. He removed his pants and underwear, pushed M.R. down on the bed, aggressively grabbed her thighs, and ripped off her pantyhose. He then ordered M.R. to stand up so he could remove her dress. She complied. When M.R. was fully undressed, he pushed her back onto the bed, got on top of her, and penetrated her vaginally with his penis while digitally penetrating her anus. He then put his penis in her mouth. Next, he penetrated her in the anus while digitally penetrating her vagina. Kitchings was not wearing a condom and he ejaculated in her vagina. During the entire incident, M.R. pleaded with him to leave and told him that she did not want this.
After the assault, Kitchings got dressed and M.R. heard the door slam as he left. Then, she locked the door, grabbed her cellphone, ran into her closet and called 911. The 911 call was played for the jury. The police arrived and took her to the hospital. Afterwards, she went to the Butterfly House where a rape kit was collected.
The State introduced photographs taken of M.R. at the Butterfly House showing bruising on her arm, which she attributed to being grabbed by Kitchings. The State also introduced photographs taken of M.R. two days after the incident by her friend in New York. These photos depicted bruising on her arm as well as bruising on her left thigh, which M.R. stated were caused by Kitchings when he held her down in her bedroom.
On cross-examination, the defense noted that there were no photographs from the Butterfly House of bruising on M.R.'s thigh, even though M.R. stated that the nurse took pictures of it. The defense further pointed out that M.R. did not tell the detective that she had bruising on her thigh when he explicitly asked her during her Butterfly House interview if she had any bruises other than the bruising on her arm. Defense counsel highlighted the inconsistency between M.R.'s follow-up interview with the detective, where she stated that the bruises on her leg were caused by Kitchings when he grabbed her in the car, and her trial testimony, where she indicated the bruises were caused by Kitchings holding her down during sex. M.R. clarified that the bruises came from both instances, despite acknowledging that Kitchings probably would not have grabbed her in the exact same spot.
The mother and daughter, who were in the car with M.R. before being dropped off, testified at trial. The daughter testified that during their ride, M.R. mentioned that she was sad to be going home by herself. The mother said that M.R. was talking a lot to Kitchings and saying that she was going back home by herself.
M.R.'s neighbor
M.R.'s neighbor in the adjacent quadplex testified that she was home on the night of the incident and woke up around 1 a.m. when she heard two car doors slam, but then went back to sleep. She did not hear anybody screaming or dogs barking when she woke up and did not notice any police activity later that night. The next morning, she observed that M.R. was hysterical when she saw her leaving with a police officer.
A Jupiter police officer first responded to a sexual battery call at about 2:10 a.m. When she arrived at the scene, she noticed that M.R. appeared distraught and was pacing back and forth, sometimes crying, and cleaning up dog feces. M.R. told the responding officer that an Uber driver inserted his finger into her vagina and anus while they were in the car, but she did not tell the officer about performing oral sex in the car. M.R. said she was yelling for help and screaming from the time she opened the car door to the time she got to her front door. M.R. also asserted that her assailant urinated in her mouth while she was performing oral sex on him in her bedroom.
The officer took M.R. to the hospital where she collected M.R.'s dress and pantyhose for evidence. She turned these items over to a crime scene investigator for the Jupiter police department.
The CSI testified that there was a hole in the crotch area of M.R.'s pantyhose and that the soles of the pantyhose were all black as if they were well worn. There was a stain on the dress, but M.R. testified earlier that the stain was from the Kombucha tea she was drinking and had nothing to do with the case.
She processed Kitchings' car and testified there was a stain on the passenger seat, but it was on the backing. There was nothing on the driver's side or center console. She did not smell any "cleaning smell" or note that that the car had just been meticulously cleaned. She discovered a blue container tucked behind the liner inside the trunk of the car that contained a lubricant and condoms.
A sexual assault nurse for Palm Beach County testified that she examined M.R. at the Butterfly House and took oral, vaginal, and anal swabs. She observed that M.R. had a bruise on her arm
and some scratches, which she photographed. She observed no injuries in M.R.'s mouth or her vagina. There was no vaginal bleeding and no sign of injuries to the anus. M.R. did not complain of any pain during her exam, but stated there was pain during the assault.
On cross-examination, the nurse stated that M.R. never told her that she had injuries on her legs and she did not personally observe any markings or injuries on M.R.'s legs.
M.R.'s New York friend
M.R.'s New York friend testified that just after midnight, she received a call from M.R. who said she was raped. M.R. was crying and not acting like herself. The friend immediately got on the computer to look at flights, and ultimately arranged a flight for M.R. to come home to New York that same day.
When the friend picked M.R. up at the airport, she did not observe any injuries on her, but she indicated that M.R. did not look like her usual self. She stayed with M.R. for a few days. She...
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