Sampson v. State, 88-379

• Decision Date: 07 April 1989
• Docket Number: No. 88-379,88-379
• Parties: 14 Fla. L. Weekly 866 Bobby Joe SAMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 733

541 So.2d 733

14 Fla. L. Weekly 866

Bobby Joe SAMPSON, Appellant, v. STATE of Florida, Appellee.

No. 88-379

District Court of Appeal of Florida First District.

April 7, 1989.

Michael E. Allen, Public Defender, David A. Davis, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., for appellee.

WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences for two counts of sexual battery upon a child under the age of twelve, and two counts of lewd and lascivious assault upon a child under the age of sixteen. We find that evidence of prior similar acts was properly admitted, and that it was appropriate to allow one of the victims to testify by closed circuit television. We also find that the evidentiary admission of certain out-of-court statements by one of the victims does not require reversal. We therefore affirm the orders appealed.

Appellant was charged with committing a sexual battery and a lewd and lascivious assault upon both his stepdaughter and her friend who was visiting overnight. During the course of the evening appellant was discovered by his wife in the stepdaughter's bedroom in a compromising position. The stepdaughter and her friend each testified as to the details of the offenses committed against them, with the stepdaughter's testimony presented by closed circuit television. The stepdaughter also described other prior instances of sexual contact by appellant.

Evidence was presented as to statements appellant made to law enforcement personnel. In these statements appellant initially explained that he had entered his stepdaughter's bedroom for an innocent purpose and thereafter was unwillingly placed in a compromising position. However, appellant subsequently admitted certain details of the charged offenses, as well as prior acts against his stepdaughter.

Medical personnel and a Child Protection Team worker testified as to their encounters with the victims after the charged offenses. The victims' descriptions of the offenses to these witnesses substantially accorded with their testimony at trial, and physical examinations revealed conditions consistent with the described occurrences. The witnesses were allowed to testify as to the victims' descriptions of the incidents, including the prior acts against appellant's stepdaughter.

Although the circumstances provide sufficient safeguards of reliability as to the challenged out-of-court statements made by appellant's stepdaughter, the court did not make the necessary findings for such testimony to be admissible under section 90.803(23), Florida Statutes. Statements which were made for the purpose of medical diagnosis or treatment were nevertheless admissible under section 90.803(4), Florida Statutes. And both these and the remainder of the challenged statements were merely cumulative evidence, generally reiterating the substance of testimony which the victims presented to the jury. In the context of this case the court's failure to comply with the procedural requirements of section 90.803(23) was harmless. See Cook v. State, 531 So.2d 1369 (Fla. 1st DCA 1988); Salter v. State, 500 So.2d 184 (Fla. 1st DCA 1986).

The evidence of prior similar acts by appellant against his stepdaughter was properly admitted pursuant to section 90.404(2)(a), Florida Statutes. Such evidence has been allowed in other instances of sexual offenses against children, often upon a theory that it establishes a specialized "pattern of criminality." See e.g., Cotita v. State, 381 So.2d 1146 (Fla.1980), rev. denied 392 So.2d 1373 (Fla.1981). However, the supreme court has indicated that the "better approach" is to treat such evidence as relevant to corroborate the victim's testimony. See ...