Roderick v. State

• Decision Date: 20 November 2019
• Docket Number: No. 1D18-4020,1D18-4020
• Citation: 284 So.3d 1152
• Parties: William RODERICK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

284 So.3d 1152

William RODERICK, Appellant,

v.STATE of Florida, Appellee.

No. 1D18-4020

District Court of Appeal of Florida, First District.

November 20, 2019

W. Charles Fletcher, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.

B.L. Thomas, J.

Appellant, William Roderick, seeks review of an order denying a postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

Appellant was charged with two counts of sexual battery upon a child by a person in familial or custodial authority, one count of providing alcoholic beverages to a person under age 21, and one count of resisting arrest without violence. Appellant and the victim are father and daughter. On the night of the incident, Appellant, his mother, and the victim checked into a hotel and reserved two rooms. Appellant and the victim remained in one room while his mother stayed in another. The victim testified that while in the hotel room, Appellant, offered her sips of alcohol and tickled her, sitting on top of her. The victim asked him to stop but Appellant removed the victim's pants and underwear and took off his underwear. Appellant performed oral sex and sexually penetrated the victim. She eventually managed to run out of the room and into the hotel office for assistance. The hotel clerk testified at trial that he saw a young girl who appeared to be terrified, running and yelling for help. He assisted her and called 911. While in police custody, Appellant could not recall if he had raped his daughter as he had seven drinks that night and did not know how much alcohol the victim drank.

At trial, the Child Protection Team (CPT) officer who examined the victim opined that there was sexual assault or abuse based on the patient history but the physical findings neither confirmed nor negated allegations of sexual abuse. She further testified that an examination could not conclusively determine whether a sexual assault took place. There was no foreign DNA recovered from the sexual assault kit. The defense theory was that the lack of DNA evidence showed that the victim fabricated the sexual battery so she could move out-of-state with her mother, the non-custodial parent.

Ultimately, the Appellant was convicted of his charged offenses. He was sentenced to a total of 25 years in prison to be followed by five years of sexual offender probation. His convictions and sentences were affirmed on appeal. Roderick v. State , 120 So. 3d 802 (Fla. 1st DCA 2014). Appellant filed the instant amended rule 3.850 motion, raising seven claims of ineffective assistance of counsel, which the lower court summarily denied.

On appeal, Appellant only challenges the denial of his first, fifth, sixth, and seventh claims. While the Appellant's brief refers to and contains an amalgamation of the factual allegations made in claims two, three, and four, he does not argue the claims therein. Thus, only the first, fifth, sixth, and seventh claims of the motion are subject to review. See Watson v. State , 975 So. 2d 572, 573 (Fla. 1st DCA 2008). A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance a defendant must allege: (1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms and (2) that the defendant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different. See Id. at 690-92, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The defendant must demonstrate a likelihood of a different result which is substantial and not just conceivable. Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). The prejudice in counsel's deficient performance is assessed based on its effect on the results at trial, not its effect on appeal. Strobridge v. State , 1 So. 3d 1240, 1241 (Fla. 4th DCA 2009) (citing Carratelli v. State , 961 So. 2d 312, 323 (Fla. 2007) ).

In Appellant's first claim, he argued that counsel failed to object to the state's expert witness vouching for the credibility of the victim. The testimony at issue involved the expert opinion of the CPT officer who examined the victim. She testified that in her medical opinion there was sexual assault or abuse according to patient history and physical findings that were consistent with the history. Appellant contends that the expert witness improperly vouched for the credibility of the victim.

A claim of ineffective assistance of counsel arguing counsel's failure to object requires that the basis of the objection be credible. Hitchcock v. State , 991 So. 2d 337. 361 (Fla. 2008). It is improper for an expert witness to "give the jury the clear impression that the expert believed the child victim was telling the truth." Geissler v. State , 90 So. 3d 941, 947 (Fla. 2d DCA 2012) ; see also Feller v. State , 637 So. 2d 911, 915 (Fla. 1994) ("An expert may not directly vouch for the truthfulness or credibility of a witness"). Although the witness did not directly speak to credibility, the expert witness improperly conveyed her conviction that the victim was telling the truth solely based on the patient-reported intake history. Thus, counsel provided deficient performance in failing to object to the CPT officer's testimony.

Although counsel provided deficient performance in failing to object to the improper comments, Appellant fails to show prejudice. Strickland , 466 U.S. at 691, 104 S.Ct. 2052. Even if the improper testimony had been excluded, there is not a reasonable probability that the outcome of the case would be different. Harrington , 562 U.S. at 112, 131 S.Ct. 770 (2011). There was other evidence in the instant case to support the allegation of sexual abuse including, but not limited to, the testimony of the hotel clerk, the victim's consistent account of the incident, and the absence of an affirmative denial by Appellant who told police he could not remember if he had raped his daughter. Furthermore, the effect of the expert's testimony confirming abuse was mitigated by her subsequent admission that based on the physical examination, she could not determine whether the abuse had taken place. Under these circumstances, the trial court properly denied this claim.

In the Appellant's fifth claim, he argued that he is entitled to a new trial because counsel failed to object when the prosecutor improperly invoked religion in his closing argument. Here, the prosecutor made the following argument:

And when you're thinking about this case it always brings me back to the story

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