Smith v. State, No. 94-962

CourtCourt of Appeal of Florida (US)
Writing for the CourtAppeal from the Circuit Court for Volusia County, S. James Foxman; THOMPSON; PETERSON, C.J., and GOSHORN
Citation674 So.2d 791
Parties21 Fla. L. Weekly D1060 Raymond SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
Decision Date03 May 1996
Docket NumberNo. 94-962

Page 791

674 So.2d 791
21 Fla. L. Weekly D1060
Raymond SMITH, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 94-962.
District Court of Appeal of Florida,
Fifth District.
May 3, 1996.
Rehearing Denied June 11, 1996.

Page 792

Appeal from the Circuit Court for Volusia County, S. James Foxman, Judge.

Craig Stephen Boda, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

THOMPSON, Judge.

Raymond Smith, Jr., appeals the judgment and sentence entered after a jury found him guilty of lewd or lascivious assault upon a child under the age of 16 years. 1 Smith contends on appeal that the trial court made five errors. We find that two have merit. First, the trial court erred when it allowed the child's mother to testify that the child never made false statements against anyone, and, second, the trial court erred when it allowed a state's expert witness to testify that she believed that the child had been sexually abused and Smith was the perpetrator. We reverse and remand for a new trial.

The testimony at trial was that Smith, 24 years of age and a member of the New Smyrna Beach Police Department, was introduced to the child by the child's former boyfriend who was a police explorer. Shortly thereafter, the child was hospitalized because she tried to commit suicide. Smith befriended the child and her mother and acted as a counselor to the child. After getting to know the child and her mother, Smith took the child to his home to watch MTV. The television was in his bedroom. They sat on the bed to watch television and Smith allegedly fondled, caressed and kissed the child, then had vaginal intercourse with her which was consensual in fact. After intercourse Smith told the child she should keep it a secret because "I'm 24 and you're 14. I'm a police officer and I could get into a lot of trouble."

The child allegedly told her best friend about the incident as soon as she got home, and told another friend the next day. Smith and the child continued to see each other for several weeks, although the child never returned to his home or again had sex with

Page 793

him. The child eventually told her mother about the sexual relationship. The mother immediately reported the allegations to the police. The crime was reported approximately one month after it allegedly occurred, and the police were not able to obtain any medical or physical forensic evidence to corroborate the child's testimony. The only direct evidence in the case was the child's testimony and hearsay statements, and these were controverted by Smith who testified that the child had been to his house for five minutes, but that they did not have sex.

During the trial, the state proffered testimony of the child's mother. The mother testified that the child never made false allegations against anyone. During the proffer, Smith's attorney objected to the testimony arguing that it was being offered merely to bolster the child's testimony. The trial court overruled the objection and allowed the state to ask the mother if the child had ever "made any false criminal allegations against anyone else" in the past. The trial court allowed the mother to answer "[a]bsolutely not." Smith contends this was error and we agree.

This testimony invaded the province of the jury, which was to determine the child's credibility. The child's credibility was a significant factual matter in this case since there was no medical or physical evidence...

To continue reading

Request your trial
6 practice notes
  • Blackwell v. Sec'y, Case No.: 3:12-cv-518-J-32JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 22 Septiembre 2015
    ...to the defendant." Id. (citing Fla. Stat. § 90.403); accord, Glendening v. State, 536 So. 2d 212, 221 (Fla. 1988); Smith v. State, 674 So. 2d 791, 794 (Fla. 5th DCA 1996). "The danger of prejudice increases when an investigating officer is permitted to offer an opinionPage 11as to the defen......
  • Jordan v. State, No. 84252
    • United States
    • United States State Supreme Court of Florida
    • 17 Abril 1997
    ...only to build sympathy within the jury for the victim. The trial judge erred in allowing such testimony. See generally Smith v. State, 674 So.2d 791 (Fla. 5th DCA 1996), review denied, 684 So.2d 1352 (Fla.1996)(finding improper expert testimony irrelevant to the proper jury role); Florida P......
  • Baldwin v. State, No. 96-1853
    • United States
    • Court of Appeal of Florida (US)
    • 30 Mayo 1997
    ...690 So.2d 573 (Fla. 1997); Terry v. State, 668 So.2d 954 (Fla.1996); Steinhorst v. State, 412 So.2d 332 (Fla.1982); Smith v. State, 674 So.2d 791 (Fla. 5th DCA), rev. denied, 684 So.2d 1352 (Fla.1996). See also § 924.051(1)(b) and (3), Fla.Stat. (Supp.1996). At trial, defense counsel simply......
  • Paul v. State, No. 5D01-645.
    • United States
    • Court of Appeal of Florida (US)
    • 22 Junio 2001
    ...indicate that the victim had fabricated her statements, and that the victim would have no motive for lying. See also Smith v. State, 674 So.2d 791 (Fla. 5th DCA We reject the State's argument that it was permissible for the investigator to testify about whether the victim had any motive for......
  • Request a trial to view additional results
6 cases
  • Blackwell v. Sec'y, Case No.: 3:12-cv-518-J-32JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 22 Septiembre 2015
    ...to the defendant." Id. (citing Fla. Stat. § 90.403); accord, Glendening v. State, 536 So. 2d 212, 221 (Fla. 1988); Smith v. State, 674 So. 2d 791, 794 (Fla. 5th DCA 1996). "The danger of prejudice increases when an investigating officer is permitted to offer an opinionPage 11as to......
  • Jordan v. State, No. 84252
    • United States
    • United States State Supreme Court of Florida
    • 17 Abril 1997
    ...only to build sympathy within the jury for the victim. The trial judge erred in allowing such testimony. See generally Smith v. State, 674 So.2d 791 (Fla. 5th DCA 1996), review denied, 684 So.2d 1352 (Fla.1996)(finding improper expert testimony irrelevant to the proper jury role); Florida P......
  • Baldwin v. State, No. 96-1853
    • United States
    • Court of Appeal of Florida (US)
    • 30 Mayo 1997
    ...690 So.2d 573 (Fla. 1997); Terry v. State, 668 So.2d 954 (Fla.1996); Steinhorst v. State, 412 So.2d 332 (Fla.1982); Smith v. State, 674 So.2d 791 (Fla. 5th DCA), rev. denied, 684 So.2d 1352 (Fla.1996). See also § 924.051(1)(b) and (3), Fla.Stat. (Supp.1996). At trial, defense counsel simply......
  • Paul v. State, No. 5D01-645.
    • United States
    • Court of Appeal of Florida (US)
    • 22 Junio 2001
    ...indicate that the victim had fabricated her statements, and that the victim would have no motive for lying. See also Smith v. State, 674 So.2d 791 (Fla. 5th DCA We reject the State's argument that it was permissible for the investigator to testify about whether the victim had any motive for......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT