Lazarowicz v. State

561 So. 2d 392, 1990 WL 58256
District Court of Appeal of Florida·Decided May 8, 1990·No. 86-1457·Published·Cited by 27 cases

Opinion

561 So.2d 392 (1990)

Bruce LAZAROWICZ, Appellant,
v.
The STATE of Florida, Appellee.

No. 86-1457.

District Court of Appeal of Florida, Third District.

May 8, 1990.

*393 Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Susan Odzer Hugentugler, Asst. Atty. Gen., for appellee.

Before NESBITT, BASKIN and FERGUSON, JJ.

NESBITT, Judge.

Bruce Lazarowicz appeals his conviction for sexual battery of a child by a person in a position of familial authority. See §§ 794.011, 794.041, Fla. Stat. (1985). This sexual battery was alleged to have been committed against Lazarowicz's daughter, Jennifer, on December 6, 1985, when she was seventeen years old. Jennifer testified that when she asked her father's permission to attend a school trade fair with a male acquaintance, her father denied her request, forced her to engage in sexual intercourse, and then rescinded his refusal. Because we agree with the defendant that the trial court erroneously admitted hearsay testimony as to statements made by Jennifer prior to trial which were consistent with her in-court testimony but in fact were made after the existence of factors indicating the possibility of improper motive on her part, we reverse and remand for a new trial.

The defense was based in part on a claim that Jennifer had an improper motive for accusing her father. The defense claimed that Jennifer fabricated her charges of sexual battery so that her father would no longer be in a position to prevent her from maintaining a sexually active relationship with her boyfriend. The fact said to indicate the motive, Jennifer's desire to maintain her sexual relationship with her boyfriend, took place when she first engaged in sexual intercourse with the boyfriend. According to Jennifer's testimony, this occurred one week before she reported her father to the authorities.

Section 90.801(2)(b), Florida Statutes (1985), sets forth the following exception to the general rule against admissibility of hearsay evidence:

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
... .
Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication. .. .

However, section 90.801(2)(b) permits the admission of only prior consistent statements made before the existence of the facts said to indicate an improper influence. *394 See Bianchi v. State, 528 So.2d 1309 (Fla. 2d DCA 1988); Preston v. State, 470 So.2d 836 (Fla. 2d DCA 1985); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); see also Jackson v. State, 498 So.2d 906 (Fla. 1986); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977).

Jennifer's prior consistent statements admitted at the trial through other witnesses regarding the sexual battery do not come within the foregoing exception because all of her out-of-court statements occurred after Jennifer first became sexually intimate with her boyfriend; in other words, these statements occurred after Jennifer had a motive for feasibly fabricating the charges. Accordingly, those statements were inadmissible under the statute.

Virtually every witness who testified for the state was permitted to testify as to prior consistent statements made by Jennifer. These witnesses' hearsay testimony improperly corroborated Jennifer's trial testimony. See Van Gallon v. State, 50 So.2d 882 (Fla. 1951); Holliday v. State, 389 So.2d 679 (Fla. 3d DCA 1980); Allison v. State, 162 So.2d 922 (Fla. 1st DCA 1964).

The trial judge gave various reasons for admitting evidence of Jennifer's prior consistent statements. See State v. Palmore, 510 So.2d 1152 (Fla. 3d DCA 1987) (evidence inadmissible for one purpose may be admissible for another purpose). The statements made to her sister and a friend were admitted to establish Jennifer's state of mind. See § 90.803(3), Fla. Stat. (1985). In the instant sexual battery prosecution, Jennifer's state of mind was not an issue in the case, and therefore her prior consistent statements were not admissible under section 90.803(3). See Kingery v. State, 523 So.2d 1199 (Fla. 1st DCA 1988); Wells v. State, 492 So.2d 712 (Fla. 1st DCA), review denied, 501 So.2d 1283 (Fla. 1986).

Jennifer's out-of-court statements to her boyfriend and stepmother were admitted based on the trial judge's ruling that the witnesses could testify as to the fact that Jennifer had reported her father's sexual activity, but they could not testify as to the details of her report. The trial court reasoned: "The simple fact that communication was had or to whom it was had is not of necessity hearsay." Clearly, however, the fact that Jennifer told someone else that her father had engaged in sexual activity with her was itself an out-of-court statement that was, under these circumstances, inadmissible.

The trial judge allowed the nurse who examined Jennifer after the alleged offense to testify concerning Jennifer's prior consistent statements based upon the prosecutor's proffer that the statements were made during a medical interview. Section 90.803(4), Florida Statutes (1985), does provide an exception to the hearsay rule for statements made for purposes of medical diagnosis or treatment; however, for a statement to be admissible under this exception there must be a showing: (a) that the statements were being made for this purposes of diagnosis or treatment; and (b) that the individual making the statements knew the statements were being made for this purpose. Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986). The record in this case is devoid of any such showing. Accordingly, Jennifer's prior consistent statements to the nurse should not have been admitted, see Hanson v. State, 508 So.2d 780 (Fla. 4th DCA 1987); Begley, 483 So.2d at 70, although these statements may be admissible on retrial if a purpose pertinent to diagnosis or treatment is demonstrated.

We conclude that the erroneous admission of Jennifer's prior consistent statements requires reversal. The state did not attempt to support the defendant's conviction under a harmless error analysis. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986), our supreme court held:

The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. See Chapman, 386 U.S. at 24, 87 S.Ct. at 828. Application of the *395 test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.

In the present case the defendant contended that his daughter fabricated the allegations against him so that he could not disrupt her active sexual relationship with her boyfriend.

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