Travers v. State

• Decision Date: 18 April 1991
• Docket Number: No. 88-2791,88-2791
• Citation: 578 So.2d 793,16 Fla. L. Weekly 1095
• Parties: Robert L. TRAVERS, Appellant, v. STATE of Florida, Appellee. 578 So.2d 793, 16 Fla. L. Week. 1095
• Court: Florida District Court of Appeals

Page 793

578 So.2d 793

Robert L. TRAVERS, Appellant, v. STATE of Florida, Appellee.

No. 88-2791.

578 So.2d 793, 16 Fla. L. Week. 1095

District Court of Appeal of Florida First District.

April 18, 1991.

J. Peter France, Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant raises several issues in this appeal of a judgment of conviction for two counts of sexual battery on a child under twelve years of age, and two counts of lewd and lascivious assault on or in the presence of a child under fourteen. Appellant claims that the trial court erred in denying his motion for a judgment of acquittal; that a new trial is warranted because of improper conduct by the prosecutor, and because the trial court improperly inserted itself into the proceedings. Appellant also assigns as error the trial court's restriction of his cross-examination of the principal police investigator and the denial of appellant's proposed jury instruction concerning "Williams rule" evidence. Finally, appellant argues that these errors, if individually insufficient, are cumulatively prejudicial to warrant a new trial. Upon review of the arguments made and the record of the trial below, we find no reversible error and affirm.

Appellant and his wife periodically cared for the alleged victim and her older sister from November 1982 until July 1986. Unfortunately, both girls suffer from neurofibromatosis, the older child having an especially severe case. The sexual batteries complained of allegedly took place between January 1, 1984, and July 19, 1986. The last occasion on which the batteries could have occurred was a time when the victim, her older sister, and their mother came from Pensacola to Fort Walton Beach to attend a neurofibromatosis charity function on a weekend in July 1986. At this time the older child was six years of age, the younger child five. While in Fort Walton Beach, they stayed in the home of appellant and his wife, who were active in charity functions related to this disease. The mother testified that both children requested to sleep with appellant and his wife, and during this sleep-over the appellant allegedly committed some acts of abuse on the older child.

Because of a dispute between the victim's mother and the appellant's wife that weekend over the use of charity funds, the mother left appellant's house and returned home with her children. Later, after the mother noticed what appeared to be blood on the older child's underpants, she contacted the family's pediatrician with the concern that the girl had been abused. The older child was physically examined and was interviewed by the Child Protection Team. Physical abuse was suspected, and appellant was arrested and charged with lewd and lascivious acts in the presence of a child. Appellant entered a plea of nolo contendere to this charge. At the time of appellant's arrest for offenses committed against the older girl, the younger girl, the alleged victim in the present case, gave no indication of abuse after questioning by her mother.

Nearly a year after the act of battery was committed on the older child, however, the younger child indicated to her mother that the appellant had sexually battered her. The child was physically examined and was interviewed by the Child Protection Team. A physician member of the team found injuries to the child's genitalia consistent with forced entry of an object, but he was unable to give an estimate of the time when these injuries occurred, other than to state that the condition did not occur within the few days prior to his examination; that the condition he found was not a "one-time injury;" and that it could have occurred weeks, or two or three years, prior to his examination. Appellant was eventually arrested and charged by information with sexual battery on a child under twelve by oral penetration, sexual battery by vaginal penetration, and two counts of lewd and lascivious acts upon a child under the age of fourteen. Trial was held in June 1988, and appellant was found guilty of all charges.

Turning to the issues on appeal, we find that the trial court did not err in submitting the case to the jury. As conceded by trial counsel in his motion for judgment of acquittal, the state presented ample evidence through its medical witnesses to establish the physical indicia of penetration of the victim. In addition, the victim gave testimony in graphic detail of the several kinds of sexual abuse inflicted upon her by appellant. Her recollection of details as to time and place, and other circumstances surrounding the offenses, was in part vague or nonexistent, but not unusually so considering her age and the time frame in which the events recalled by the victim occurred. Any conclusions as to her credibility that might be drawn from the manner in which she responded to questions in court would be a matter solely for the jury.

Next, we have considered the various instances of alleged trial misconduct on the part of the prosecutor, and we find that in each instance where objection was made, it was sustained by the trial court. One of the instances of alleged misconduct occurred during closing argument. Upon objection, the trial court sustained the objection, and the prosecutor was promptly admonished by the trial court to confine his remarks to comments on the evidence. No motion for mistrial was made at any time. Upon consideration of the entire record, we are of the view that none of the cited instances of alleged misconduct by the prosecutor were likely to have improperly influenced the jury's verdict. See Walker v. State, 483 So.2d 791 (Fla. 1st DCA), rev. denied, 492 So.2d 1336 (Fla.1986) (alleged prosecutorial improprieties viewed in context of the record as a whole to determine whether they constitute sufficient prejudice to warrant new trial).

Appellant next argues that the trial court acted improperly in connection with the young victim's in-court identification of the appellant. When first asked if she saw the appellant, whom she knew as "Paw-Paw" in the courtroom, the victim answered, "No, sir." On further questioning, she stated that she knew Betty Travers, wife of the appellant; that she was known to her as "Nanna"; that "Paw-Paw" and "Nanna" lived in a trailer in Fort Walton Beach, and that she had stayed there with them. Upon objection by defense counsel on the grounds that the victim had not identified the appellant, the trial judge, at a bench conference, stated that he wanted the child to "get up and walk around the courtroom once again to see if she identifies the defendant." The judge further stated: "If she can't identify the defendant, I'm not going to allow her to testify." There was no objection to the trial court's suggested procedure; in fact, both counsel agreed that this should be handled by the court. The judge then stated to the witness, in the presence of the jury: "It's a little dark in the courtroom. Would you mind getting up from the witness stand and just walk around the courtroom, and tell us if you see the person you know as Paw-Paw or Robert Travers?" After a lapse of twenty-five seconds, the child pointed out the appellant.

We agree, as appellant urges, that a trial court should "scrupulously avoid commenting on the evidence in a case." Lee v. State, 324 So.2d 694, 698 (Fla. 1st DCA 1976). We do not agree, however, that the trial court acted improperly in this case. The comment, "it's a little dark in the courtroom," was no doubt intended as an explanation of why the procedure of having the witness walk around in the courtroom was necessary. It is arguable that this statement can be interpreted as an explanation or excuse for the failure of the witness to identify the appellant when first asked. Perhaps the witness could have been better instructed without the trial court's use of these words. However, there was no objection to the trial court's statement, nor to the procedure of having the witness walk out into the courtroom. Indeed, as already noted, both counsel agreed to this procedure. We conclude, moreover, that the effect on the jury would have been essentially the same without the words of the judge, since the jury would surely have surmised that the courtroom walk by the witness was being ordered because the witness had not been able to identify appellant from the witness stand. In any event, we are unable to agree that this remark rises to the level of a "comment on the evidence," and we find no error on this issue.

Appellant also contends that the trial court erred in restricting cross-examination of the state's principal law enforcement investigator, Busey Joyce. In a pretrial ruling, the court granted the state's motion in limine to preclude the defense from presenting evidence that the investigator, Busey Joyce, was instructed by the assistant state attorney not to seek an arrest warrant in the present case until the sentencing in the prior case, involving the older child, was completed. The state contended that the timing of the application for and service of the arrest warrant was irrelevant, and therefore inadmissible. Appellant argued below, as here, that the delay in service of the warrant was motivated by concern, among prosecution and law enforcement personnel, that if appellant was made aware of the second warrant he might move to withdraw his plea of nolo contendere in the first case and demand a trial. Appellant argues that the evidence was relevant to show the animus or bias on the part of the investigator, and thus to weaken the credibility of her adverse testimony concerning statements made to her by appellant at the time of his arrest.

We find no abuse of discretion in the court's ruling. Notwithstanding the ruling on the motion in limine, the record reveals that appellant was allowed to extensively cross-examine Investigator Joyce concerning her investigation of...