Oliver v. State

977 So. 2d 673, 2008 WL 534934
District Court of Appeal of Florida·Decided February 29, 2008·No. 5D06-2005·Published·Cited by 8 cases

Opinion

977 So.2d 673 (2008)

Steven K. OLIVER, Appellant,
v.
STATE of Florida, Appellee.

No. 5D06-2005.

District Court of Appeal of Florida, Fifth District.

February 29, 2008.

*675 James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, J.

Oliver appeals his convictions on six counts of sexual battery on a child by a person in familial or custodial authority and one count of lewd and lascivious molestation of a child. We affirm but write to address four of Oliver's arguments on appeal.

Motion for Judgment of Acquittal

Oliver argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present evidence that these crimes were committed while Oliver was in a position of familial or custodial authority. We disagree.

The de novo standard applies to reviewing the denial of a motion for judgment of acquittal. Harris v. State, 954 So.2d 1260, 1261 (Fla. 5th DCA 2007). The terms "familial or custodial authority" are not defined in Chapter 794, but they are defined in the case law. Familial authority and custodial authority are not the same. Crocker v. State, 752 So.2d 615 (Fla. 2d DCA 1999). In Pozek v. State, *676 803 So.2d 768, 769-70 (Fla. 5th DCA 2001), we adopted the following definitions:

In State v. Rawls, 649 So.2d 1350, 1353 (Fla.1994), the supreme court defined the concept of "familial relationship" in the context of the sexual battery of children. Although the court in that case addressed the concept for the sole purpose of determining whether similar fact evidence was admissible to corroborate the testimony of a minor victim of sexual battery, the definition is nonetheless helpful in deciding whether sufficient evidence of familial or custodial authority has been presented to uphold a conviction under section 794.011(8)(b). In Rawls, the court concluded that the determination of a "familial relationship" must be done on a case-by-case basis. Id. at 1353. The court explained:
Consanguinity and affinity are strong indicia of a familial relationship but are not necessary. Also, the defendant and victim need not reside in the same home. The relationship must be one in which there is a recognizable bond of trust with the defendant, similar to the bond that develops between a child and her grandfather, uncle, or guardian. Where an individual legitimately exercises parental-type authority over a child or maintains custody of a child on a regular basis, a familial relationship may exist for purposes of the admissibility of collateral crimes evidence. . . .

In the instant case, there was sufficient evidence to deny the motion for judgment of acquittal on this element. Oliver was charged with committing various sex acts upon twin teenage girls, D.P.E. and D.J.E. Their mother, Gail Ramsey, testified that she met Oliver when he was her sons' soccer coach. Ramsey became friends with Oliver's wife and the Ramseys started "hanging out" at the Olivers' house on weekends. Their families became very close. The twins often went over to the Oliver house to babysit on weekends. The twins also went on vacation with Oliver. Mrs. Ramsey trusted Oliver as a father figure with her daughters because he showed them the affection a father would show a child. Oliver was also D.P.E.'s soccer coach.

D.P.E. testified that she met Oliver in 2003, when she was in sixth grade. Their families became close. She and her sister frequently stayed overnight at Oliver's house. In the beginning, she regarded Oliver as "[a]lmost like a father figure" because he was always there, playing with them. D.P.E. trusted and confided in Oliver. In addition, Oliver was D.P.E.'s soccer coach in 2004 and 2005. D.P.E. testified that three incidents occurred between her and Oliver. All of them occurred at his house. One occurred in the living room, one somewhere inside his house, and one in the swimming pool.

D.J.E. testified that she met Oliver when her brothers started playing soccer. He was "like a father figure." D.J.E. stayed overnight at Oliver's house babysitting on a regular basis. She trusted him. She told him her father had died and he shared with her that his father had died when he was around her age. That connection made her feel close to him. D.J.E. testified to four incidents all occurring at Oliver's house. Three occurred while she was alone with Oliver in his bedroom. D.J.E. specified that on the first occasion, Oliver locked the bedroom door. The other incident occurred while she and Oliver were alone in his swimming pool.

This evidence was sufficient for the jury to conclude that Oliver was in a position of familial or custodial authority. The girls looked up to Oliver as a father figure. They trusted and confided in him. Their own father was deceased and they were *677 not close to their step-father. Thus, there was a recognizable bond of trust between Oliver and the girls similar to that of father and child.

In addition, the twins' mother trusted Oliver enough to let them stay overnight at his home and go on vacation with him. Oliver was one of the girls' soccer coaches. All of the incidents occurred at Oliver's home at times when Oliver was alone with the girls or others were asleep. Thus, Oliver was in a position of custodial authority over the girls because they frequently stayed overnight with him and were alone with him at his house when the incidents occurred.

Admission of Expert Testimony

The State called Dr. Thomas Dikel, who was accepted, without objection, as an expert in child sexual abuse, child psychology and neuropsychology. He testified that although there was "no single post sexual abuse syndrome" and "no way to look at a child and say this child's been sexually abused," there were some typical behaviors. These included (1) the victim's desire to act "hyper-normal" after being sexually abused; (2) denying sexual abuse at first; (3) delaying disclosure; (4) disclosing the facts in piecemeal fashion; and (5) the victim's attempts to control their emotions.

Oliver argues that the trial court erred in admitting Dr. Dikel's testimony, over objection, because it was improper profile evidence. He cites to Hodden v. State, 690 So.2d 573 (Fla.1997), which held that expert testimony regarding the child sexual abuse accommodation syndrome was not admissible because it had not been proven to be generally accepted in the scientific community, as required under Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

However, Hodden noted that the Frye standard "is not applicable to an expert's pure opinion testimony which is based solely upon the expert's training and experience." Id. at 579-80. In this case, Dr. Dikel carefully couched his testimony solely in relation to his professional experience. Thus, it was pure opinion testimony not subject to Frye.

We also disagree with Oliver's contention that Dr. Dikel's testimony constituted improper vouching for the credibility of the victims. It is well-established that an expert may not directly testify as to the truthfulness of the victim in a child sexual abuse case. Tingle v. State, 536 So.2d 202, 205 (Fla.1988). However, Dr. Dikel did not directly testify about the victims in this case. Instead, he offered observations from his experience regarding b

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Oliver v. State, 977 So. 2d 673, 2008 WL 534934 (Fla. Ct. App. 2008).

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