Browne v. State

132 So. 3d 312, 2014 WL 223094, 2014 Fla. App. LEXIS 585, 39 Fla. L. Weekly Fed. D 201
CourtDistrict Court of Appeal of Florida
DecidedJanuary 22, 2014
DocketNo. 4D10-2772
StatusPublished
Cited by14 cases

This text of 132 So. 3d 312 (Browne v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Browne v. State, 132 So. 3d 312, 2014 WL 223094, 2014 Fla. App. LEXIS 585, 39 Fla. L. Weekly Fed. D 201 (Fla. Ct. App. 2014).

Opinion

LEVINE, J.

Appellant was convicted of attempted sexual battery. Over appellant’s objection, the state introduced testimony from the victim’s friend consisting of what the victim told her regarding the details of the attempted sexual battery. We find the trial court’s admission of this statement was error. Further, we find that the error in this case was not harmless, and therefore, we reverse appellant’s conviction.

The victim was a college student interested in becoming a physician’s assistant. She was introduced to appellant, a physician who agreed to allow her to observe him at his medical practice. When the work day ended between 7:00 p.m. and 9:00 p.m., the victim and appellant would have dinner at a local restaurant, and the victim would continue to question appellant about his medical practice.

On the night of the incident, appellant and the victim left appellant’s office to eat at the restaurant at about 9:15 p.m. Appellant’s partner declined an offer to join them. After dinner, appellant started driving the victim to his office instead of to her car. She asked where he was going, and appellant said to the center. The victim testified at trial that she thought that appellant must have forgotten something at the office.

At this point, appellant stopped the car and turned to the victim. The victim testified that appellant pushed her backward and put his dead weight on her. She testified to appellant assaulting her by touching her breasts and vaginal area, as well as pulling at her clothes and exposing her breasts. Appellant kissed the victim, “grinded” on her, and exposed his erect penis before he eventually ejaculated.

During the assault, the victim testified to repeatedly saying no and mentioning appellant’s wife and children to him. Ap[315]*315pellant only responded repeatedly that “you know you want this.” Subsequently, the victim then left appellant’s car and left the parking lot in her own car. While driving home, the victim saw appellant following her and did not answer either of two calls he made to her cell phone.

The victim called her friend. Over defense objection, the friend testified that the victim was upset because appellant was chasing her. She asked the friend what to do, and the friend told the victim to meet her at the hospital where the friend worked. Instead the victim went to the friend’s home, where she met the friend’s boyfriend upon arriving.

Later that night, the friend arrived home and found the victim lying on the couch. The friend noticed a “hickey” on the victim’s neck but did not notice the victim’s clothes to be torn or ripped. In their second conversation, the friend testified that the victim said she was “very nervous” due to the “events that taken place” and because of “being followed and what had happened with [appellant] that night.”

The trial court denied appellant’s objection to the state asking the friend what details the victim had relayed to her about the events of that night. The friend testified:

She stated to me that he had, she was in the passenger side of the vehicle, of his vehicle and he had moved on over to pin her down and force her to kiss, you know, to kiss her and stuff and, and later, you know, as that was happening he, what she told me was that he ejaculated on her, that’s what she told me.

Appellant again raised an objection, which the trial court overruled finding the friend’s testimony admissible as an excited utterance or as the first recounting of a sexual battery crime. The friend testified that although the victim did not explicitly state the incident was not consensual, “that’s what it seemed like ... she was getting at,” and that the victim “was trying to fight him off.”

At trial, the other evidence introduced included a “controlled call” between the victim and appellant. During the conversation, the victim said that what happened was not something she wanted and that appellant crossed the line. Appellant apologized and said he would “make sure it doesn’t happen again.” Appellant also said, “I didn’t listen to you, you know, and it all happened.” Appellant gave a statement to law enforcement in which he said that the victim participated in everything and that he did not force her to participate.

The defense called the friend’s boyfriend to testify. He stated that when the victim arrived the night of the incident he asked her if she wanted to call the police and the victim said no. Later, but before the friend arrived home, the victim woke the friend’s boyfriend because she was upset about a “hickey” on her neck. The boyfriend told her to use a frozen spoon on the spot.

Appellant was found guilty as charged and appeals his conviction. Appellant argues that the trial court erred by admitting the hearsay statement of the victim through the testimony of the victim’s friend. The trial court overruled appellant’s timely objection to the friend’s recounting of the victim’s version of events from that night that occurred after the friend returned home.

The state argues, in response, that the trial court did not abuse its discretion by admitting the friend’s testimony recounting the victim’s statements because (1) of the “first complaint” exception to the hearsay rule, (2) it was an excited utterance, and (3) the statement was not hearsay, but [316]*316rather a prior consistent statement. We find that none of the above reasons advanced by the state are correct and that the trial court abused its discretion by allowing the admission of the hearsay statements.

“The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence. [W]hether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Lucas v. State, 67 So.3d 332, 335 (Fla. 4th DCA 2011) (citations omitted). Thus, “whether evidence is admissible in evidence under an exception to the hearsay rule is a question of law ... [subject to] the de novo standard of review.” Powell v. State, 99 So.3d 570, 573 (Fla. 1st DCA 2012).

As to the “first complaint” exception to the hearsay rule, the state points to Irvin v. State, 66 So.2d 288 (Fla.1953), in which the Florida Supreme Court held that certain statements were admissible under this exception. Under the “first complaint” exception, “the fact that a victim of a sexual battery sought the first opportunity to complain is admissible to rebut any inference of consent that might be drawn from the silence of the victim.” Charles W. Ehrhardt, Florida Evidence § 803.1 (2013 ed.).

Even though there are Florida cases recognizing the “first complaint” exception, there are other cases holding that the adoption of the Florida Evidence Code eliminated any common law hearsay exceptions not codified by statute. In Chavez v. State, 25 So.3d 49, 51-52 (Fla. 1st DCA 2009), the court explained:

Although section 90.102 states that common law that does not conflict with the Code is still applicable in Florida, section 90.802 prohibits courts from admitting hearsay “except as provided by statute.” ... The Florida Evidence Code has expressly established that to be admissible, hearsay evidence must fall under a statutory exception.

Our court adopted the reasoning of Chavez in Mortimer v. State, 100 So.3d 99 (Fla. 4th DCA 2012).

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Cite This Page — Counsel Stack

Bluebook (online)
132 So. 3d 312, 2014 WL 223094, 2014 Fla. App. LEXIS 585, 39 Fla. L. Weekly Fed. D 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browne-v-state-fladistctapp-2014.