Timot v. State, No. 97-2769.

CourtFlorida District Court of Appeals
Writing for the CourtOWEN, WILLIAM C., Jr., Senior.
Citation738 So.2d 387
PartiesSelondieu TIMOT, Appellant, v. STATE of Florida, Appellee.
Decision Date23 June 1999
Docket NumberNo. 97-2769.

738 So.2d 387

Selondieu TIMOT, Appellant,
v.
STATE of Florida, Appellee

No. 97-2769.

District Court of Appeal of Florida, Fourth District.

June 23, 1999.


Richard L. Jorandby, Public Defender, and Lisa Chang Malone, Assistant Public Defender, West Palm Beach, for appellant.

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

OWEN, WILLIAM C., Jr., Senior Judge.

Appellant was charged with and convicted of lewd assault by committing an act defined as sexual battery upon a child under the age of 16 years, an offense proscribed by Section 800.04(3), Florida Statutes (1995). Appellant's two principal issues concern (1) the admissibility of DNA evidence, and (2) the court's refusal to instruct the jury on assault. Because reversible error has not been demonstrated, we affirm.

Prior to trial appellant's counsel brought to the court's attention the then recent opinion in Brim v. State, 695 So.2d 268 (Fla.1997), but did not then or at any later

738 So.2d 388
time make a specific request for a Frye1 hearing. During the trial the state's DNA expert witness testified in substantial detail as to the methodology used in the Polymerase Chain Reaction (PCR) DNA testing and matching of the ten genetic markers which were found. At this point, appellant's counsel made the following objection
Counsel: Judge, this is my only objection. It may be preliminary ... I don't have an objection to the expert at this point, because I do believe she's an expert.
But I do have an objection to at this point saying that she believes it was a match without laying the proper foundation under the Supreme Court case I gave you yesterday, that could match up mathematically or explain quantitatively how the relevance of what she may or may not refer to as a match.
I mean, that second portion has to be addressed. And ... I'm not prepared at this point to say she is an expert in that field.
So I would object to her at this point going beyond just saying how she separated X, Y and Z.
The Court: Well, I think your objection at this point is premature.... If your objection is as to a specific question that might be asked of the witness, then I'll just have to wait until I hear the question.
Counsel: My main concern is that she's going to use the chart at this point to claim that there's some type of match. I don't believe that the State's laid a foundation for that.
The Court: Well, I'll wait and see.

Though the objection was not stated as precisely as it might have been, it is clear that it was intended to call to the court's attention the requirement, emphasized in Brim, that the second step of the DNA testing process (the population frequency statistics) is subject to a Frye inquiry as a prerequisite to admissibility. See Miles v. State, 694 So.2d 151 (Fla. 4th DCA 1997). Although the court essentially overruled the objection, it did so simply because the objection was premature. The same objection was made and overruled several times thereafter during the continuation of that part of the witness's testimony concerning the first step of the testing process (the scientific methodology).

When the witness began testifying as to the second step (the population frequency), appellant's counsel requested the opportunity to voir dire the witness before she testified on this step of the testing. That request was denied, and the witness then completed her testimony on the second step without further objection. The witness described in detail the data bases used...

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2 practice notes
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...penis or its "union with the vagina of the minor victim," Harris v. State, 742 So.2d 835, 838 (Fla. 2d DCA 1999); Timot v. State, 738 So.2d 387, 390 (Fla. 4th DCA 1999), and digital, see Ready v. State, 636 So.2d 67, 68 (Fla. 2d DCA 1994), or lingual contact with a child's vagina. See State......
  • U.S. v. Padillo-Reyes, PADILLA-REYE
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 11, 2001
    ...the sexual organ of the appellant had union with the vagina of the victim; assault is not an element of the offense. Timot v. State, 738 So.2d 387, 389-90 (Fla.Dist.Ct.App.1999). 6. See, e.g. 8 U.S.C. 1101(a)(43)(B) (including "illicit trafficking in a controlled substance (as defined in se......
2 cases
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...penis or its "union with the vagina of the minor victim," Harris v. State, 742 So.2d 835, 838 (Fla. 2d DCA 1999); Timot v. State, 738 So.2d 387, 390 (Fla. 4th DCA 1999), and digital, see Ready v. State, 636 So.2d 67, 68 (Fla. 2d DCA 1994), or lingual contact with a child's vagina. See State......
  • U.S. v. Padillo-Reyes, PADILLA-REYE
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 11, 2001
    ...the sexual organ of the appellant had union with the vagina of the victim; assault is not an element of the offense. Timot v. State, 738 So.2d 387, 389-90 (Fla.Dist.Ct.App.1999). 6. See, e.g. 8 U.S.C. 1101(a)(43)(B) (including "illicit trafficking in a controlled substance (as defined in se......

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