Shapiro v. State

• Decision Date: 23 July 1997
• Docket Number: No. 96-0141,96-0141
• Citation: 696 So.2d 1321
• Parties: 22 Fla. L. Weekly D1772 Arnold SHAPIRO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1321

696 So.2d 1321

22 Fla. L. Weekly D1772

Arnold SHAPIRO, Appellant, v. STATE of Florida, Appellee.

No. 96-0141.

District Court of Appeal of Florida Fourth District.

July 23, 1997.

Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, Sharon A. Wood and Don M. Rogers, Assistant Attorney Generals, West Palm Beach, for appellee.

STONE, Chief Judge.

The judgment and sentence are affirmed.

Appellant, a licensed psychologist, was convicted of sexual misconduct by a psychotherapist under section 491.0112, Florida Statutes.

Appellant was charged under subsection two of the statute, which prohibits sexual misconduct "by means of a therapeutic deception" which is defined to mean "a representation to the client that sexual contact by the psychotherapist is consistent with or part of the treatment of the client." § 491.0112(4)(b). The record reveals ample evidence from which the jury could find Appellant guilty of making such a representation.

Initially, we find no error in denying Appellant's motion for judgment of acquittal as the evidence demonstrates, prima facie, that Appellant used therapeutic deception to convince the female victim to engage in prohibited sexual conduct. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974). Appellant counseled the victim-patient for low self-esteem in an effort to help her avoid gaining weight. In the course of the counseling, Appellant raised issues involving the victim's sexuality. He told the victim that he wanted to prepare her for future sexual relationships, and suggested that her self-esteem would be improved by masturbation. During a subsequent session, Appellant asked the victim to masturbate in front of him, so he could "help" her; she complied. Appellant then digitally penetrated the victim. He told her that he did this so that she would feel good about herself, and that he only wanted what was best for her. He also warned her that "it has to stay between you and I because you cannot tell anyone, since I can get in trouble." On one occasion, Appellant tried to kiss the victim, and on another, he lowered his pants to demonstrate that she had "excited him." Appellant told the victim that when she lost weight, his "gift" to her would be that he would have sex with her.

The victim reported these actions to the police and allowed them to wire her and videotape a meeting at a restaurant. The police recorded Appellant tell the victim that he did not think what happened would be hurtful, since she was "obviously not with someone at the moment, needful, at the moment. You got me needful." Appellant also essentially admitted that he used his offer to have sex with the victim as an incentive for her to reach her goal weight. Later in the conversation, the victim states "But I came there to build my self-esteem but then I trusted you--" to which Appellant replied, "that's what I was trying to do.... The point is that one of the reasons I was doing that to help build--"

The state called a former patient who was treated by Appellant for stress 20 years earlier. She testified that during their first session Appellant went out of his way to make her feel good about herself. Appellant had asked the witness about her sexual history, representing to her, as he had to the victim in this case, that he was also a sex therapist. During the second visit, he continued to question her about her sex life. Then, he slid his hand up her skirt and inserted his finger into the witness' vagina, telling her that this would make her "feel good." She did not return.

We find no abuse of discretion in the court's admission of the prior act testimony. Section 90.404(2)(a), Florida Statutes (1991), provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but is inadmissible when the evidence is relevant solely to prove bad character or propensity.

See also Williams v. State, 110 So.2d 654 (Fla.1959).

Here, the witness' testimony reveals Appellant's common scheme, plan, or design to sexually exploit his patients while purporting to help them improve self-esteem and feel good about themselves. Similar fact evidence of collateral crimes may be admitted as relevant even if it is not uniquely similar. E.g., Finney v. State, 660 So.2d 674 (Fla.1995); Bryan v. State, 533 So.2d 744 (Fla.1988). See also Gould v. State, 558 So.2d 481 (Fla. 2d DCA 1990), rev'd on other grounds, 577 So.2d 1302 (Fla.1991); State v. Ayala, 604 So.2d 1275 (Fla. 4th DCA 1992). In both instances the victims were married but separated from their husbands. Neither victim sought sexual counseling from Appellant, but rather he initiated their conversations about sex. Both victims were complimented and then digitally penetrated by Appellant in the office during a therapy session. See Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989); Rossi v. State, 416 So.2d 1166 (Fla. 4th DCA 1982); Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982); Anderson v. State, 549 So.2d 807 (Fla. 5th DCA 1989). See also Ayala. We thus find this other incident of alleged sexual misconduct sufficiently similar to be admissible as Williams rule evidence.

Appellant also raises several constitutional issues. As to these, we first note the general presumption of validity in favor of legislative acts, and the need to resolve doubt in favor of the constitutionality of statutes. Carter v. Sparkman, 335 So.2d 802, 805 (Fla.1976); Sarasota County v. Barg, 302 So.2d 737 (Fla.1974); Scarborough v. Newsome, 150 Fla. 220, 7 So.2d 321 (1942). We reject Appellant's assertion that Florida Statute § 491.0112 (1993) is facially unconstitutional. Appellant alleges that: (1) the statute is overbroad in its potential application to speech and conduct in violation of the First Amendment, (2) the law is void for vagueness because the terms "psychotherapist" and "client" are defined too broadly, (3) subsection one of the statute, not at issue in this prosecution, violates Florida's constitutional right to privacy by prohibiting sex by consenting adults, and (4) that the statute violates equal protection by creating a distinct class of otherwise competent adults to receive heightened protection. We have considered and reject each of these and find the statute facially constitutional.

Appellant first alleges that the statute is overbroad. A statute is overbroad when it restricts speech or conduct that is protected under the First Amendment. State v. Greco, 479 So.2d 786 (Fla. 2d DCA 1985). The Florida Supreme Court has recognized that, "the overbreadth doctrine is an unusual doctrine that must be used sparingly, especially where the statute in question is primarily meant to regulate conduct and not merely pure speech." Schmitt v. State, 590 So.2d 404, 412 (Fla.1991); Wilkerson v. State, 401 So.2d 1110 (Fla.1981). See also Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973).

The Supreme Court of Colorado recently held a similar statute constitutional, and found that it was not unconstitutionally overbroad. See Ferguson v. People, 824 P.2d 803 (Colo.1992) (en banc). In Ferguson, the court upheld the constitutionality of a Colorado statute prohibiting the knowing infliction of sexual penetration by a psychotherapist on a client. The court found that the overbreadth doctrine did not apply because there is no fundamental constitutional right for psychotherapists to engage in sexual relations with their patients. The court reasoned that:

Notwithstanding the elevated constitutional status accorded to certain privacy and associational interests, the Supreme Court has emphasized that there is no open-ended immunity for consenting adults to engage in any and all types of sexual behavior. On the contrary, the court has emphasized that its fundamental-right jurisprudence does not stand for the proposition "that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription." Bowers v. Hardwick, 478 U.S. 186, 191, 106 S.Ct. 2841, 2844, 92 L.Ed.2d 140 (1986). Thus, while certain private activities and intimate relationships may qualify for the elevated status of fundamental constitutional rights, it has never been the law that consenting adults, solely by virtue of their adulthood and consent, have a constitutionally protected privacy or associational right to engage in any type of sexual behavior of their choice under any circumstance.

Ferguson, 824 P.2d at 808.

However, Florida's statute differs from Colorado's statute in one critical respect: Colorado's statute prohibits sexual activity only when there is an ongoing professional relationship. Florida's statute prohibits a sexual relationship between a psychotherapist and patient even after the professional relationship is terminated, where "the professional relationship is terminated primarily for the purpose of engaging in sexual contact." § 491.0112(1). Appellant argues that the statute is overbroad since it does not allow any way to pursue a romantic relationship no matter how brief the professional relationship or how sincere the feelings.

This aspect of the challenge is patently inapplicable to the charge against Appellant since his alleged sexual misconduct occurred while the professional relationship was ongoing. However, Appellant argues that he has standing to question the facial validity of a statute as a whole, since the statute would deter or threaten others not before the court from engaging in constitutionally protected speech or expression. See ATS Melbourne, Inc. v. City of Melbourne, 475 So.2d 1257 (Fla. 5th DCA 1985); Wyche v. State, 619 So.2d 231 (Fla.1993). The overbreadth doctrine has been recognized as...