State v. Ortiz, 3D99-2761.
| Decision Date | 23 August 2000 |
| Docket Number | No. 3D99-2761.,3D99-2761. |
| Citation | 766 So.2d 1137 |
| Parties | The STATE of Florida, Appellant, v. Julio ORTIZ, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General and Margaret A. Brenan, Assistant Attorney General, for appellant.
Abraham & Agnoli, and Lane Abraham and Amy Agnoli, for appellee.
Before JORGENSON, GREEN, and NESBITT, JJ.
On this appeal, the state of Florida challenges the dismissal of an attempted sexual battery charge against appellee, Julio Ortiz, pursuant to a Florida Rule of Criminal Procedure 3.190(c)(4) motion. The state argues, and we agree, that the trial court reversibly erred in granting this motion where the undisputed factual evidence otherwise established a prima facie case of attempted sexual battery. Accordingly, we reverse and remand for further proceedings.
The state charged Ortiz by indictment with one count of first degree murder and one count of attempted sexual battery of a female victim. The undisputed record evidence, in this case, reveals that the victim's body was found dead, virtually nude, and burned, in an isolated wooded park area of Miami Beach, Florida on March 24, 1993. The City of Miami Beach Police summoned the then deputy medical examiner, Dr. Charles Wetli to the scene. Dr. Wetli's initial impression upon seeing the body, with only remnants of clothing on her chest and some white cloth on one of her lower legs, was that this was a rape/homicide victim who had subsequently been set on fire. Alternatively, he opined that the victim died of a drug overdose and was then set on fire. Dr. Wetli found contusions on the victim's tongue which he opined were the result of the victim having been punched in the jaw. There was also trauma to the top of the victim's head which Dr. Wetli testified could not have been caused by the victim falling.
Dr. Wetli later determined that the victim had not died from the burns or smoke inhalation. Rather, Dr. Wetli determined the cause of death to be strangulation. This determination was based upon autopsy findings of significant damage to the neck structure as well as a fracture of the thyroid cartilage. The toxicology report showed that the victim had tested negative for drugs and alcohol.1
Dr. Wetli's examination of the victim did not reveal the existence of any anal or vaginal tears or any physical evidence to indicate the occurrence of a rape. Dr. Wetli also performed the procedures from a rape kit on the victim's body and sent the specimens to the crime laboratory. At the time of his testimony, Dr. Wetli did not know the results from the rape kit, as it is standard procedure that the medical examiners do not receive the results of these tests. During his deposition, Dr. Wetli testified that there was no scientific evidence of a sexual assault on the victim. He explained that his reason for believing that the victim had been subjected to a sexual assault, however, was based upon a study, which he co-authored, that appeared in the Journal of Forensic Science in 1983. According to this article, there is a high probability that a deceased woman, such as the victim in this case, who is found in an isolated field, disrobed, with her clothing down her legs, with her vaginal area exposed, will have been the victim of strangulation and sexual assault. Dr. Wetli testified that he came to this hypothesis by looking at a variety of women who had been the victims of rape/homicide and concluded that this was a pattern.
Appellee Ortiz initiated contact with the police department shortly after hearing the news accounts of the murder. Ortiz explained that he had left a cigarette package near the crime scene and was concerned that the police would lift his fingerprints off of the package and charge him with the murder. Ortiz made several conflicting statements to police after being Mirandized,2 that the trial court found to be knowing and voluntary. Initially, Ortiz told police that he saw a white male, white female and a black male approach an area where he was resting and he witnessed them smoking crack. He stated that he later saw the three people return to his area carrying gas in a plastic container. Ortiz told police that the woman poured gas all over herself from the top of her head to her feet. She then lit a match and set herself on fire. Ortiz stated that he left the scene without calling the police or fire department out of fear.
Within the next few weeks, Ortiz voluntarily returned to the police station and requested to view a videotape from a Shell gas station, which was located only blocks from the location where the victim had been found. Ortiz later explained that he wanted to see whether he appeared on the tape. The tape was never shown to Ortiz.
In April 1995, Detective Drucker approached Ortiz and told him that the police had some new information that they wished to discuss with him. Ortiz agreed to accompany the police to the police station. After again being Mirandized, Ortiz admitted to accidentally killing the victim. Ortiz stated that he had met the victim at the scene and both of them had smoked crack. He then claimed that the victim "went crazy", removed her clothing and tried to attack him. He supposedly then grabbed her by the throat and held her for about two minutes. Thereafter, he pushed her to the ground where she allegedly hit her head on an unknown object. Ortiz then shook the victim to see if he could get a response. When she did not respond, Ortiz walked to the nearby Shell gas station and purchased some gasoline. He returned to the scene, poured gasoline over the victim and set her on fire.
At the pretrial hearing on Ortiz's motion to suppress his confession, and motion to determine the sufficiency of a corpus delicti, Dr. Emma Lew, an associate medical examiner, testified that the victim's cause of death was strangulation and that the body had been set on fire subsequent to death. Dr. Lew testified that the victim had a piece of residual cloth around one of her legs and cloth over her head, otherwise the victim was nude. Dr. Lew further testified that the fire was started in the front of the victim and that her buttocks had not really been burnt. Thus, Dr. Lew opined that if any clothing had been on the victim's buttocks, it would still have been there when the police found the body. Dr. Lew agreed with Dr. Wetli's report that the victim had been subjected to a rape or attempted rape. Dr. Lew further testified that although there was no physical evidence of rape, that rape can occur without semen and/or DNA in the woman's vaginal area.
At this same pretrial hearing, Detective Drucker, the responding officer to the crime scene, testified that he saw the victim lying on her side with one hand beneath her. He saw clothing that appeared to have been pulled over the victim's head and another material which was down by the bottom part of one of the victim's legs. Other than that, the victim was completely nude. Detective Drucker testified that his impression upon coming to the scene was that this might have been some type of sexual battery that had escalated into something else.
At the conclusion of this hearing, the trial court denied Ortiz's motion to suppress his confession and found that there was prima facie evidence of a criminal act. Thereafter, the appellant filed a motion to dismiss the count for attempted sexual battery which is the subject matter of this appeal.
In his sworn motion to dismiss the attempted sexual battery count, Ortiz argued that the undisputed facts of this case did not present a prima facie case against him of attempted sexual battery. He averred, among other things, that both medical examiners in this case, Drs. Wetli and Lew had found no physical or medical evidence of a sexual battery or attempted sexual battery on the victim. In particular, he highlighted that Dr. Lew had stated that there was no physical evidence that would lead her to believe that there was a sexual battery or an attempted sexual battery of the alleged victim.3
The state filed a traverse in which it specifically denied that Dr. Lew had testified that there was no physical evidence that would lead her to believe that there was a sexual battery or attempted sexual battery of the victim. The state cited those portions of Dr. Lew's testimony wherein she agreed with the conclusions of deputy chief medical examiner, Dr. Wetli, that there are indications from reviewing the entire scene of the investigation, as well as the autopsy, that the victim in this case may have been raped or that a rape may have been attempted during the course of this murder.4 The state also responded in the traverse that the defense had not asked Drs. Lew or Wetli whether the deceased had been a victim of attempted rape or attempted sexual battery. Finally, the state averred that given the circumstances of the victim at the scene, her bare buttocks and clothing pulled up from her breast section over her face, that a jury could reasonably conclude from the totality of the evidence that Ortiz was attempting to commit a sexual battery upon the victim when he murdered her.
A hearing was conducted on the motion to dismiss. During this hearing, Ortiz recanted any involvement in this case. At the hearing, the state maintained that its proof of the attempted sexual battery charge was not based upon medical evidence, although Dr. Lew had testified that rape can occur even in the absence of such evidence. Rather, the state asserted that its proof of this count was based upon the circumstantial evidence of the location of victim with her shirt around her head and her shorts below her knees as well as the physical signs that she had been beaten (i.e. blunt force injury to the top of her head and serial sectioning of the tongue indicating a punch to her jaw). The trial court granted the motion to dismiss finding generally that the...
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