Heuss v. State

660 So. 2d 1052, 1995 WL 106305
CourtDistrict Court of Appeal of Florida
DecidedAugust 23, 1995
Docket92-0737
StatusPublished
Cited by13 cases

This text of 660 So. 2d 1052 (Heuss 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
Heuss v. State, 660 So. 2d 1052, 1995 WL 106305 (Fla. Ct. App. 1995).

Opinion

660 So.2d 1052 (1995)

James HEUSS, Appellant,
v.
STATE of Florida, Appellee.

No. 92-0737.

District Court of Appeal of Florida, Fourth District.

March 15, 1995.
Order on Grant of Rehearing August 23, 1995.

*1053 Richard L. Jorandby, Public Defender, and Eric M. Cumfer, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.

DELL, Chief Judge.

James Heuss appeals his convictions for sexual battery on two children and for lewd assault on a third child. After two mistrials, a jury found him guilty on Count I of sexual battery of Child A, age seven at trial, on Count II of sexual battery of Child B, age nine at trial, and on Count III for lewd assault on Child C, age eight at trial.[1] Appellant contends the trial court erred when, without making the requisite statutory findings, it admitted multiple hearsay statements of the victims, pursuant to the Child Sexual Abuse Hearsay Exception. See § 90.803(23), Fla. Stat. (1991). Appellant also contends the trial court erred in failing to grant a judgment of acquittal on the charges of sexual battery as alleged in Counts I and II of the information; in failing to make sufficient findings of fact concerning the child-victims' competency; in admitting expert testimony that invaded the province of the jury and commented on the credibility of child-witnesses; in failing to grant a new trial based upon prosecutorial misconduct during closing argument; and finally, in instructing the jury on reasonable doubt. We disagree and affirm.

The parents of the children first learned of the alleged abuse after the fiancee of the mother of Child A informed her that her daughter had performed oral sex on her younger brother. When the mother confronted the child, she explained that she had learned the act from appellant when he did the same thing to her. The mother discussed her child's claim of sexual abuse with her sisters, the mothers of the other two victims. When the mother of Child A spoke with her two nieces, Child B said that appellant had touched her "on [her] bottom, touched her privates in between [her] legs with his fingers and licked her private parts and that it hurt." Child C stated that he had touched her "on [her] bottom, and in between [her] legs," and that he kissed and hugged her, but did not remove her clothing.

A deputy sheriff responded to the parents' complaints. The parents told the deputy that appellant had babysat all of their children over a period of six months, from June to December 1989. The deputy interviewed each child out of the presence of the other two children. The deputy testified that Child A said appellant put his mouth in her private area and she felt his tongue touching her private area. Child B stated appellant penetrated her private parts with his finger and at one point showed her his penis. Child C told him appellant touched her buttocks and her private area while she was fully dressed. A few days later, the deputy, accompanied by another deputy sheriff, conducted taped interviews of the three children. The second deputy testified that Child A stated appellant had taken her into the bedroom of his apartment, laid her down on the carpet, removed her clothing and placed his tongue in her vagina. Child B informed him that appellant had placed his finger within her vagina at least five times. The deputy also testified that Child C told him that appellant had touched her numerous times between the legs, the area she knew as her "privates," and that he patted her buttocks on several occasions. The record reflects that the taped interviews were published to the jury.

Each of the children testified during trial. The trial court made inquiry into the competency of Child A to testify. The court concluded *1054 that Child A was a "bright, intelligent, alert young lady, seven years of age, knows the difference between telling the truth and telling a lie and is competent to testify in this procedure." Appellant made no objection as to Child A's competency to testify and declined the opportunity to conduct his own voir dire of the child. Child A testified as follows:

Q. Okay. Did you — Were you in Jim's apartment very many times?
A. Yes.
Q. Can you — Do you got [sic] any idea of how many?
A. No.
Q. Okay. Did anything happen to you unusual in his apartment?
A. Yes.
Q. Will you tell me what it was? Tell me what happened.
A. I went in the bathroom to go pee and then he went in the bathroom and laid me on the ground.
Q. Uh-huh. Is the bathroom in his apartment?
A. Yes.
Q. And he laid you on the carpet?
A. Yes.
Q. And what happened to the door?
A. He closed it.
Q. Okay. And when he put you down on the carpet, what happened to you then?
A. He licked my private.
Q. Between your legs?
A. Yes.
Q. How many times did he do that?
A. Once, two.
Q. Two times?
A. Yes.
Q. Did you have any clothes on from here down?
A. No.
Q. How did you get your clothes off?
A. He pulled my pants down.

The record also reflects that during cross-examination, Child A responded affirmatively to questions that established prior inconsistent statements in her deposition. On redirect, however, she reaffirmed her intent to tell the truth and reiterated her testimony given on direct examination.

As to Child B, the trial court concluded without objection from appellant that

she has an appreciation to understand the difference between right and wrong and telling a lie and telling the truth. She's here with the capacity and intent to tell the truth. And accordingly, I would find her to be competent to testify in this matter.

Child B testified in part:

Q. Would you ever sleep in the waterbed?
A. Once or twice.
Q. Okay. And when you slept on the waterbed, would you sleep by yourself or would there be somebody else in the bed?
A. There would be somebody else.
Q. Who else would be there?
A. Him. Jim.
Q. And this would be at night?
A. Uh-huh.
Q. Did anything — what happened there in the bed?
A. He would keep touching me everywhere.
Q. You said everywhere. I'm going to point to a couple places on me, okay?
A. (Nodding).
....
Q. Okay. Now, tell me about the breast and where you just said that he touched you down there, what do you mean?
A. He touched me in between the legs, and I didn't like it.
Q. You didn't what?
A. Like it.
Q. What did he touch you with between your legs?
A. His fingers.
Q. How would it feel when that happened?
A.

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Bluebook (online)
660 So. 2d 1052, 1995 WL 106305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heuss-v-state-fladistctapp-1995.