Cunningham v. State

801 So. 2d 244, 2001 WL 1576416
District Court of Appeal of Florida·Decided December 12, 2001·No. 4D00-667·Published·Cited by 2 cases

Opinion

801 So.2d 244 (2001)

Uton CUNNINGHAM, Appellant,
v.
STATE of Florida, Appellee.

No. 4D00-667.

District Court of Appeal of Florida, Fourth District.

December 12, 2001.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

During appellant's trial for sexual battery and lewd assault on a child, the court permitted a psychologist to explain why the child was "emotionally unavailable" to testify in the proceeding. Because the psychologist's testimony amounted to vouching for the credibility of the child's out-of-court statements, was irrelevant to the issues at trial, and was highly prejudicial, we hold that it was error to admit the testimony. We reverse for a new trial.

Appellant, his wife, and their two children moved into the home of a female friend. This woman resided with her four children, including the child-victim ("S.M."). When appellant and his family moved in, they occupied the bedroom of S.M., who was ten at the time. S.M. moved into her sisters' bedroom. While S.M. was upset about losing her bedroom *245 to appellant's family, she was upset only with appellant himself.

Approximately two weeks after appellant's family moved in, S.M.'s mother awoke one night to S.M.'s banging on her door. When she opened the door, S.M. told her that appellant had kissed her. The mother went looking for appellant and found him under the kitchen table. The mother called the police, who arrested appellant. After the officer at the scene read him his rights, appellant admitted kissing S.M. and rubbing her leg. However, the officer who testified to those admissions was impeached by inconsistent pretrial testimony.

The officers collected evidence, including the bedsheets upon which the incident allegedly occurred and appellant's clothing. None turned out to be suitable for DNA testing. S.M. was also examined that night at a sexual assault treatment center, and no evidence of sperm or seminal fluid was found. Dr. Gibson, who examined S.M., found evidence of vaginal irritation which could have been caused by penetration, but it could also have been caused by simple rubbing or itching, or a vaginal infection. Dr. Gibson also found evidence of some healed transections/tears in the vagina. Because these were healed, evidence of recent penetration was less likely. A defense expert testified that these could have been present from birth and that if adult penile penetration had occurred, one would expect to see some fresh tears, dried blood, or redness in the hymen area which was not found. A detective, who had a limited conversation with S.M. at the center, testified that S.M. told him she had a problem with appellant that night.

Appellant was interviewed by the detectives the evening of the incident and appeared cooperative. He repeatedly said that he needed help and counseling. After several hours at the police station, he admitted that he went into S.M.'s room where she was sleeping. He touched her shoulder, breast, and buttocks with his hands. He also kissed her on the lips and put his tongue in her mouth. When S.M. did not respond, he thought she did not mind, and he touched her vagina with his hand, never inserting his fingers. He then asked the interrogating officers if his talking with them was "for my help or yours?" The officer responded that it would help everyone, particularly S.M. who also would need help. After this exchange, appellant told the officers that he put his penis in her vagina. He was inside her for about ten minutes but did not ejaculate.

The next day, the detective took S.M.'s recorded statement. She testified that she felt appellant on top of her, kissing her lips. She then said appellant "put something in my private part," and he kissed her breast. She screamed for her mom, and appellant ran out of the room with his clothes in hand.

The state charged appellant with sexual battery upon S.M., a person less than 12 years of age, by causing his penis to penetrate or unite with the victim's vagina (Count I), indecent assault "by causing his mouth to touch the breast" of a child under the age of 16 years (Count II), and indecent assault "by kissing" a child under the age of 16 years "on the lips" (Count III).

At a pretrial hearing on the state's request to admit the victim's statements into evidence, S.M. testified but became emotionally upset and could not continue. Dr. Sherrie Bourg-Carter, a licensed clinical and forensic psychologist, then testified regarding S.M.'s competency to testify. In a later hearing, Dr. Bourg-Carter also opined as to S.M.'s unavailability to testify in accordance with section 90.803(23), Florida Statutes (1999). Dr. Bourg-Carter concluded that the child was competent to testify but would suffer severe emotional *246 harm if required to testify either live in court or by way of closed circuit television. Based upon Dr. Bourg-Carter's testimony, the court entered an order permitting the admission of S.M.'s statements at trial.

At trial, over defense objection, the state called Dr. Bourg-Carter for the purpose of explaining to the jury why S.M. was unavailable to testify. Appellant argued that the child's unavailability was a finding that the trial court made, not an issue for the jury. Permitting testimony regarding the child's emotional responses and her emotional trauma was not relevant to any issue the jury was required to determine and was highly prejudicial. To prevent the prejudice, appellant represented that he would not argue that the child should have been present to testify. He also requested a jury instruction that the jury should not consider why the child did not testify live. The court rejected these arguments and permitted Dr. Bourg-Carter to testify.

Dr. Bourg-Carter testified that she had been asked by the court to give her opinion on S.M.'s competency to testify, as well as her emotional availability to testify. She opined that S.M. was able to recall information and communicate it, had a moral sense of obligation to tell the truth (the difference between fantasy and reality), and was competent to testify. However, when the doctor brought up appellant and this case, S.M.'s emotional state and behavior "changed dramatically." S.M. became anxious, stopped all eye contact, stared off into space, rubbed her legs with her hands, twisted her hands, got an upset stomach, and sometimes cried. Over objection, Dr. Bourg-Carter opined that S.M. was "emotionally unavailable to testify" because she would most likely "shut down emotionally" and "not answer questions."

On cross-examination, Dr. Bourg-Carter testified that she has had experience with children who have fabricated stories, and they tend to shut down and not answer questions as well. But, on redirect, she stated that children who fabricate shut down in a different way. This latter form of shutting down was not the same type of behavior S.M. exhibited.

The jury found appellant guilty of the lesser included offenses of attempted sexual battery upon a child and attempted indecent assault for the act of kissing the victim's breast. It found appellant guilty as charged of indecent assault by kissing the victim on the lips. The court found appellant to be a sexual predator, adjudicated him guilty, and sentenced him on all counts. This timely appeal followed.

We find merit in appellant's first argument, that the trial court abused its discretion in permitting Dr. Bourg-Carter to explain why the child-victim was unavailable to testify before the jury.

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Cunningham v. State, 801 So. 2d 244, 2001 WL 1576416 (Fla. Ct. App. 2001).

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