State v. Gerry, 5D02-3669.

• Decision Date: 22 August 2003
• Docket Number: No. 5D02-3669.,5D02-3669.
• Citation: 855 So.2d 157
• Parties: STATE of Florida, Petitioner, v. Raymond GERRY, Respondent.
• Court: Florida District Court of Appeals

855 So.2d 157

STATE of Florida, Petitioner, v. Raymond GERRY, Respondent.

No. 5D02-3669.

District Court of Appeal of Florida, Fifth District.

August 22, 2003.

Rehearing Denied October 1, 2003.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Petitioner.

James B. Gibson, Public Defender and Brynn Newton, Assistant Public Defender, Daytona Beach, for Respondent.

SAWAYA, C.J.

The State of Florida petitions this court for a writ of certiorari to quash a pretrial order rendered in a criminal case prohibiting one of the State's witnesses, a nurse practitioner with the Child Protection Team, from testifying at trial regarding her examination of three alleged victims of sexual abuse. We grant the petition and quash the order.

Raymond Gerry was charged with committing numerous sexual offenses against three children: Child I, a female (born 5/21/95), Child II, a male (born 6/19/97), and Child III, a male (born 4/2/00). With the exception of one sexual battery count stemming from the alleged digital penetration of Child I, the remaining counts arise from alleged instances of oral sexual activity (Gerry performing oral sex acts on Child I and Child III and having Child I perform oral sex acts on Gerry), lewd and lascivious molestations (Gerry touching the anal and genital areas of Child III and having Child I fondle Gerry), and lewd, lascivious or indecent acts (Gerry touching the genitals of Child II and having Child II touch Gerry's genitals). A nurse practitioner, Joanne Sanchez, conducted the physical and sexual abuse examinations of the three children and testified at a pretrial hearing about her qualifications and her findings.

Specifically, Sanchez testified that while the skin in Child I's genital area appeared red and irritated, there was no breakage of the skin and she saw no abnormalities regarding the hymen. However, she testified that in a large percentage of cases, there is no sign of trauma even if an object touches the hymen because the object does not have to necessarily proceed inside the vagina or through the hymen in order for penetration to occur. She explained that because the hymen is recessed, penetration can occur without any physical findings or abnormalities. No abnormal findings were observed as to Child II, nor did Sanchez expect to find any abnormalities given the nature of the alleged abuse of this child. Sanchez did observe an abnormality in the anal area of Child III that was consistent with abuse.

Gerry filed a motion in limine to have the testimony of Sanchez excluded on several grounds. One of the grounds was that her testimony was unduly prejudicial. Accepting this argument, the trial court entered an order prohibiting the introduction of the medical testimony of Sanchez on the basis that "[t]he medical evidence from Nurse Practitioner Sanchez will not be admitted at trial because, pursuant to Fla. Stat. 90.403, the probative value of her medical testimony is substantially outweighed by the danger of unfair prejudice." The elimination of her medical testimony, as the trial court has done, eliminates her as a witness.

The State filed its petition for writ of certiorari requesting that this court quash the trial court's order excluding the testimony of Sanchez. Gerry argues that certiorari review is inappropriate to review the trial court's order. Moreover, asserts Gerry, even if certiorari is the appropriate vehicle to review the trial court's order, the State failed to show that the order is a departure from the essential requirements of the law. We disagree.

"[I]mportant to the fair administration of criminal justice in this state" is the ability of the state to petition the district courts of appeal for certiorari review of pretrial orders rendered in criminal cases. State v. Pettis, 520 So.2d 250, 253 (Fla. 1988). Entitlement to issuance of the writ depends on whether the state can show: 1) that the trial court's ruling violated a clearly established legal principle and 2) that the ruling resulted in material injustice. Id. at 254 (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)); State v. Bradford, 658 So.2d 572 (Fla. 5th DCA 1995); see also State v. Cohens, 701 So.2d 362 (Fla. 2d DCA 1997)

. Specifically, when the state seeks certiorari review of the trial court's pretrial order excluding one of its witnesses from testifying at trial, certiorari review is appropriate because the state has no right to a direct appeal in the event the defendant is acquitted. See State v. Scheuschner, 829 So.2d 943 (Fla. 1st DCA 2002); State v. Brown, 782 So.2d 526 (Fla. 1st DCA 2001). Hence, in the instant case, the State properly challenges the trial court's order through a petition for writ of certiorari.

We next determine whether the trial court's ruling violates clearly established legal principles resulting in material injustice. The trial court excluded the testimony of Sanchez because it determined that her testimony, although relevant, was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice. "However, almost all evidence to be introduced by the state in a criminal prosecution will be prejudicial to a defendant. Only where the unfair prejudice substantially outweighs the probative value of the evidence should it be excluded." Amoros v. State, 531 So.2d 1256, 1260 (Fla.1988) (citation omitted); § 90.403, Fla. Stat. (2002) ("Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence."). The burden is on the party attempting to exclude the evidence to make that showing.

The unfair prejudice that section 90.403 attempts to eliminate relates to evidence that "`inflames the jury or appeals improperly to the jury's emotions.'" State v. McClain, 525 So.2d 420, 422 (Fla.1988) (quoting Charles W. Ehrhardt, Florida Evidence § 403.1 at 100-03 (2d ed.1984)); Walker v. State, 707 So.2d 300, 310 (Fla. 1997); State v. Tagner, 673 So.2d 57, 60 (Fla. 4th DCA) ("Section 90.403 ... is directed at evidence which inflames the jury or appeals improperly to the jury's emotions.") (citation omitted), review denied, 677 So.2d 841 (Fla.1996). "Only when that unfair prejudice substantially outweighs the probative value of the evidence is the evidence excluded." Walker, 707 So.2d at 310 (quoting Ehrhardt, supra).

In order to make this determination, a balancing test must be utilized where the probative value for the party seeking to introduce the evidence is weighed against the danger of unfair prejudice to the party who objects to the introduction of the evidence. Walker; McClain; Marchina v. State, 702 So.2d 1369 (Fla. 1st DCA 1997). When applying this balancing test, appropriate considerations include "`the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.'" McClain, 525 So.2d at 422 (quoting Ehrhardt, supra); see also Taylor v. State, 28 Fla. L. Weekly S439 (Fla. June 5, 2003); Mansfield v. State, 758 So.2d 636, 648 (Fla.2000), cert. denied, 532 U.S. 998, 121 S.Ct. 1663, 149 L.Ed.2d 644 (2001); Walker, 707 So.2d at 310; Steverson v. State, 695 So.2d 687 (Fla.1997). In accordance with the general rule that "[a]dmission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion,"¹ a trial court's ruling that determines whether evidence should be eliminated under section 90.403 is generally reviewed, like the admissibility of most other types of evidence, pursuant to the abuse of discretion standard. Mansfield, 758 So.2d at 648.

Our thorough review of the record in the instant case leads us to conclude that the trial court misapplied the appropriate standard in excluding the testimony of Sanchez, thereby violating the clearly established legal principles we have just discussed. We have reviewed the transcript of Sanchez's testimony in its entirety, and we conclude that it is not evidence that would inflame the jury or appeal to the jury's emotions. Examples of that type of evidence include testimony that a defendant was arrested in a high crime area, general behavior of drug dealers, racial slurs, traffic citations, a party's financial status, evidence of drug use and the criminal history of a defendant. Brown v. State, 719 So.2d 882 (Fla.1998). Evidence that would inflame the jurors or appeal to their emotions improperly implies that the defendant is guilty simply because he or she has a propensity to commit crimes or is a person of bad character. The medical testimony of Sanchez is not of that nature. Sanchez's testimony simply relates the observations she made, as a qualified nurse practitioner, when she conducted her examinations of the children. Sanchez does not render an opinion that Gerry sexually abused the children; rather, she states her findings based on her examination and personal observations of the children and explains why, given the specific charges brought against Gerry, physical trauma may not be present with regard to Child I and Child II. This is relevant evidence the State is entitled to present to the jury so that the jury may not be misled into believing that a conviction is inappropriate unless the State produces evidence of physical trauma to the victims. See Heuss v. State, 660 So.2d 1052 (Fla. 4th DCA 1995) (involving a nurse who, after conducting examination of three children of alleged sexual abuse, testified as to her physical findings of trauma to one child and no findings of trauma to the other two children), approved, 687 So.2d 823 (Fla. 1996). We thus conclude that the trial court erred in finding this...