Ramayo v. State

132 So. 3d 1224, 2014 WL 768862, 2014 Fla. App. LEXIS 2585
CourtDistrict Court of Appeal of Florida
DecidedFebruary 26, 2014
DocketNo. 3D11-3336
StatusPublished
Cited by3 cases

This text of 132 So. 3d 1224 (Ramayo 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
Ramayo v. State, 132 So. 3d 1224, 2014 WL 768862, 2014 Fla. App. LEXIS 2585 (Fla. Ct. App. 2014).

Opinion

SALTER, J.

Alexeis Ramayo appeals from a judgment of conviction and sentence following a jury trial. He was convicted of sexually molesting his three-year-old niece, S.N.R., in the absence of any physical evidence and in the absence of any eyewitness testimony (other than the child’s videotaped interview). The jury returned a verdict of not guilty as to sexual battery on a child under 12, but guilty of battery as a lesser included offense of sexual battery, and a verdict of guilty on separate counts of lewd and lascivious exhibition and molestation. We reverse and remand for a new trial on the three counts as to which the jury found Mr. Ramayo guilty, concluding that the testimony of a pediatrician (who made no physical findings of abuse but diagnosed the case as one of “sexual abuse by history”) impermissibly bolstered S.N.R.’s statements.

[1225]*1225I. Proceedings in the Circuit Court

The evidence adduced both before and at trial was sharply conflicting. There was no DNA or other forensic evidence to prove or disprove guilt. Mr. Ramayo’s wife, from whom he was separated well before the alleged incident, and her sister (S.N.R.’s mother), freely admitted that they had a poor relationship with Mr. Ra-mayo before the alleged incident occurred. At the time of the investigation,1 and later upon remote video testimony observed by the jury, S.N.R. gave inconsistent accounts of what happened and dubious answers to questions designed to determine whether she knew the difference between true and false, and between right and wrong. When interviewed by an expert psychologist before trial, S.N.R. initially denied that anyone had touched her private parts or had seen anyone else’s private parts. After an assistant state attorney had a private discussion with the child, S.N.R. was crying, and she then told the psychologist that yes, Mr. Ramayo had done those things. The psychologist testified that she asked the child why she was crying, and S.N.R. said, “the other lady tricked me.”

The case proceeded to trial. During jury selection, the prosecutor intimated that the jury might wonder how there might be police reports that would not be introduced into evidence. After a defense objection, the trial judge sustained the objection and gave the venire a curative instruction. The trial judge denied a defense motion for a mistrial based on the prosecutor’s statement.

Of greater significance, the State offered (over repeated objection) expert testimony by Dr. Walter Lambert, a physician specializing in pediatrics. Dr. Lambert testified that he is a pediatrician at the University of Miami and a medical director for the Child Protection Team for Miami-Dade and Monroe Counties. A 1985 graduate of the University of Miami School of Medicine, Dr. Lambert testified that he is an associate professor of clinical pediatrics at U.M.’s medical school. He is a Florida board-certified pediatrician with a subspe-cialty in child abuse, but not a psychologist.

Dr. Lambert described the Child Protection Team as a “group of people independent of the Department of Children and Families, independent of law enforcement, of the State Attorney’s office to look at [child abuse] cases that are reported as suspicious.” He described the team’s job as “to say if it’s true, if it’s not true, or we can’t tell.” He said the Team is multidisciplinary, including social workers and psychologists as well as physicians. Most of his work, he said, “is going to involve allegations of inflicted injuries, problems with nutrition, failure to thrive, and allegations of sexual abuse.” He testified that he has conducted such investigations since 1988. He estimated that he has conducted about 5,000 evaluations with the Child Protection Team over that period.

Dr. Lambert testified that he teaches at the Medical School and lectures “fairly extensively across the United States and South America, occasionally other places.” Over a renewed defense objection (relating to the nature of, and basis for, his opinion in the case, and not to his impeccable credentials as a pediatrician), Dr. Lambert was accepted by the trial court as an expert witness in “pediatric child maltreatment and sexual abuse.”

During the continued direct examination, Dr. Lambert described the guidelines [1226]*1226for his investigations with the Child Protective Team and the difference between an “acute” case (child patient presenting with pain, visible signs of injury, or physical evidence susceptible to forensic analysis) and a case (as here) that is past that stage. Dr. Lambert examined S.N.R. when she was approximately three years and ten months old. The examination took place sixteen days after the alleged incidents. Dr. Lambert’s testimony and contemporaneous written report (admitted into evidence) found no bruises or lesions; and no discharge, rash, or other lesions in the area of her genitalia and rectum. Dr. Lambert testified that “She had a completely normal exam. She would have an exam like that if she had walked into my office and I was her regular pediatrician that I would have expected.” But based on S.N.R.’s statements, Dr. Lambert rendered an opinion that “this case represents sexual abuse by history.”

On cross-examination, Dr. Lambert explained that “history” meant “the history the person provided when they presented themselves,” as well as reports by others (in the present case, this was the State’s forensic investigator who had interviewed the mother and S.N.R. the same day Dr. Lambert examined S.N.R.).

Mr. Ramayo testified that he had not committed any of the alleged acts, and that S.N.R.’s mother (his sister-in-law) had a very bad relationship with him. He testified that he was separated from his wife (the sister of S.N.R.’s mother). The defense emphasized that Mr. Ramayo’s wife and sister-in-law were upset with him over an IRS refund check that they did not want to share with him, and Mr. Ramayo contended that the alleged crimes could not likely have been committed in a one-bedroom apartment with nine persons in it.

As noted, the jury returned guilty verdicts on two of the four counts, a guilty verdict on a lesser included offense as to a third count, and a verdict of not guilty on the charge of sexual battery on a victim under 12. This appeal followed.

II. Analysis — Bolstering

Dr. Lambert’s qualifications, experience, and good faith are not questioned by the parties or the Court. Mr. Ramayo’s legal argument, instead, is that Dr. Lambert’s expertise, credentials, and articulate testimony may have so bolstered the child’s testimony as to announce guilt before the jury heard all the evidence and considered the case. Dr. Lambert’s testimony that there were no physical findings during his examination of S.N.R. supporting an allegation of sexual abuse was proper. It was also proper for him to opine that the absence of physical findings does not necessarily disprove the allegation of sexual abuse, particularly given the sixteen-day interval between the alleged incident and Dr. Lambert’s physical examination of S.N.R.

What Dr. Lambert could not do, however, was to opine directly on S.N.R.’s credibility or otherwise vouch for her truthfulness. Geissler v. State, 90 So.3d 941 (Fla. 2d DCA 2012). In Geissler, the allegations of child sexual abuse were related by a seven-year-old. The child was examined by an advanced registered nurse practitioner and medical examiner with the New Port Richey office of the regional Child Protection Team.

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Related

Rodriguez v. State
230 So. 3d 1249 (District Court of Appeal of Florida, 2017)
Scott v. State
218 So. 3d 476 (District Court of Appeal of Florida, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
132 So. 3d 1224, 2014 WL 768862, 2014 Fla. App. LEXIS 2585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramayo-v-state-fladistctapp-2014.