State v. Wright, BA-455

• Decision Date: 26 July 1985
• Docket Number: No. BA-455,BA-455
• Citation: 10 Fla. L. Weekly 1806,473 So.2d 268
• Parties: 10 Fla. L. Weekly 1806 STATE of Florida, Appellant, v. John Ted WRIGHT, Appellee.
• Court: Florida District Court of Appeals

Page 268

473 So.2d 268

10 Fla. L. Weekly 1806

STATE of Florida, Appellant, v. John Ted WRIGHT, Appellee.

No. BA-455.

District Court of Appeal of Florida First District.

July 26, 1985.

Rehearing Denied Aug. 21, 1985.

Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellant.

Louis O. Frost, Jr., Public Defender; Jefferson W. Morrow, Asst. Public Defender, for appellee.

MILLS, Judge.

In this criminal case, the State appeals from the trial court's departure from the sentencing guidelines. Wright cross appeals from the convictions. We affirm the convictions, but vacate the sentences.

Wright was charged with two counts of sexual battery and one count of kidnapping. The State alleged that, on 10 January 1984, he forced a 14-year-old girl into his truck and raped her twice. Wright pleaded not guilty. He was tried by a jury that found him guilty as charged on all counts.

The victim identified Wright as her assailant. She testified that the first episode of intercourse lasted approximately 20 minutes, and that during the episode the rapist moved rapidly up and down and ejaculated. She said the second episode also lasted approximately 20 minutes; the rapist fully penetrated her vagina with his penis and ejaculated. She said no lubricants were used.

Dr. Randolph, who examined the victim on the night of 10 January 1984, testified that the victim's vagina showed some redness due to engorged blood vessels, but exhibited no other trauma. Sperm was present in the vagina, he said.

Part of Wright's defense was that the rapes as described by the victim were unlikely, if not impossible, because of the size of his penis. In this regard, defense counsel elicited testimony from Dr. Randolph on cross-examination that violent thrusting of a nine-inch penis would be highly likely to cause vaginal lacerations. But Dr. Randolph refused to equate violent thrusting with rapid thrusting. He testified further that the victim had not given birth, and that as a general rule a woman who has given birth has a larger vagina than a woman who has not given birth.

Wright's girlfriend and his common-law wife testified in further support of this facet of Wright's defense. Day, the girlfriend, testified that she bled every time she had sexual intercourse with Wright, once or twice a week during the first six months of their relationship. Jaudon, the wife, testified that sexual intercourse with Wright was very painful because she had a small uterus, and that she experienced bleeding as a result. She said she had been having sex with Wright regularly for 8 1/2 years.

Defense counsel attempted to introduce into evidence photographs of Wright's penis taken in preparation for trial. The trial court allowed the photographer, Ewing, and Blue, an investigator for the public defender's office who was present at the picture-taking session, to testify that Wright's penis was nine inches long "in the flaccid state." It refused, however, to admit the photographs and a "model" prepared by Ewing--a wooden stick 8 1/2 inches long and 5 1/2 inches in circumference. It also refused to allow Ewing to testify before the jury that he measured the circumference of the penis at 5 1/2 inches, and denied defense counsel's request that Wright be allowed to display his actual penis to the jury.

Wright first contends the trial court erred in excluding the photographs and the model, and in refusing to allow him to display his actual penis to the jury. We disagree.

The decision to admit or exclude evidence is committed to the sound discretion of the trial court. Dale v. Ford Motor Company, 409 So.2d 232 (Fla. 1st DCA 1982). The trial court should exclude irrelevant evidence, that is evidence which is not material and probative. It should also exclude relevant evidence 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. Section 90.403, Florida Statutes (1983). Here, the evidence was of dubious probative value. The potential for confusion of issues and misleading the jury was substantial. We cannot say the trial court abused its discretion.

Wright contends in a related argument that the trial court erred in excluding Ewing's testimony as to penis circumference offered by the defense to aid the jury in understanding Dr. Randolph's testimony. We reject this contention because Dr. Randolph never expressed an opinion based on penis circumference, only length.

Finding the other issues raised by Wright without merit, we turn to the sentencing issue raised by the State.

The recommended sentence under the sentencing guidelines was life imprisonment. The trial court instead imposed three concurrent 20-year terms of imprisonment. It provided written reasons for departure on the scoresheet and in a separate document. ¹

A sentence outside the guidelines, even if less than the recommended range, must be accompanied by clear and convincing reasons for departure. Florida Rule of Criminal Procedure 3.701(d)(11); Tanner v. State, 468 So.2d 505 (Fla. 2d DCA 1985); State v. Twelves, 463 So.2d 493 (Fla....