Scott v. State

218 So. 3d 476, 2017 Fla. App. LEXIS 6163
District Court of Appeal of Florida·Decided May 3, 2017·No. 3D15-2882·Published·Cited by 4 cases

Opinion

*478 ROTHENBERG, J.

Jeff Scott, the defendant, appeals from a final judgment of conviction and sentence for three counts of sexual activity with a child by a person in familial or custodial authority, a first-degree felony. § 794.011(8)(b), Fla. Stat. (2014). The defendant argues on appeal that three alleged errors warrant reversal. Specifically, the defendant contends that: (1) the prejudice caused by the victim’s testimony that she tried to commit suicide after the abuse outweighed its probative value; (2) an expert witness’s recommendation that the victim should receive sexual abuse therapy improperly bolstered the victim’s credibility; and (3) the prosecution improperly appealed to the jury’s sympathy for the victim during closing arguments. For the following reasons, we affirm.

I. Standard of Review

If the defendant had properly objected to these claimed errors at trial, we would be reviewing the admission of the victim’s testimony, the expert’s testimony, and the State’s closing arguments for an abuse of discretion. See Cardona v. State, 185 So.3d 514, 520 (Fla. 2016); O’Connell v. State, 480 So.2d 1284, 1286 (Fla. 1985). The defendant, however, concedes that these alleged errors were not properly preserved for appellate review. The defendant must, therefore, establish fundamental error to obtain a reversal.

“Fundamental error is defined as the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” McDonald v. State, 743 So.2d 501, 505 (Fla. 1999) (internal quotation omitted); see also J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998) (“An error is fundamental when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.”); Hopkins v. State, 632 So.2d 1372, 1374 (Fla. 1994) (stating that “the fundamental error doctrine should be used very guardedly”) (internal quotation marks omitted); Smith v. State, 521 So.2d 106, 108 (Fla. 1988) (“The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.”). No fundamental error has been demonstrated here,

II. The first alleged error: evidence of C.S.’s suicide attempt

During the State’s case-in-chief, C.S. briefly testified that, as a result of the defendant’s abuse, she tried to commit suicide. The defendant argues on appeal that the introduction of this testimony was improper because its probative value was outweighed by the risk of unfair prejudice. Section 90.402, Florida Statutes (2014), provides that “[a]ll relevant evidence is admissible, except as provided by law.” Section 90.403, Florida Statutes (2014), however, states that “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

Whether C.S. was sexually abused was the sole, and thus, a material issue in this case. The case law has consistently held that the behavioral changes of a victim following the alleged sexual abuse is probative of whether the sexual abuse occurred. See Petruschke v. State, 125 So.3d 274, 281 (Fla. 4th DCA 2013) (finding that testimony from the victim’s parents that the victim “wet his bed more often, woke up crying with terror, and began counseling” after the alleged abuse was relevant and admissible to prove that the abuse *479 actually occurred”); Elysee v. State, 920 So.2d 1205, 1208 (Fla. 4th DCA 2006) (holding that the mother’s testimony regarding the victim’s “morose behavior” in the days following the alleged sexual abuse was relevant and admissible). As the Fourth District Court of Appeal noted in Elysee, “[i]f the victim had engaged in conduct inconsistent with the charges, for example, attending a party and enjoying herself, immediately after she left the scene, we have no doubt that the appellant would consider that evidence to be relevant.” Elysee, 920 So.2d at 1208.

Based on the facts in the instant ease, we find that the admission of this relevant evidence, which did not become a feature of the trial, did not constitute an abuse of discretion under the balancing test of section 90.403, and certainly did not rise to the level of fundamental error. Under a fundamental error analysis, the defendant has the very high burden of showing that the alleged error reaches down into the foundation of the case, J.B., 705 So.2d at 1378, such “that a verdict of guilty could not have been obtained without the assistance of the alleged error.” McDonald, 743 So.2d at 505 (quoting Urbin v. State, 714 So.2d 411, 418 n.8 (Fla. 1998)). 1 The defendant has failed to satisfy that burden in this ease.

III. The second alleged error: Treto’s therapy recommendation

Annette Treto (“Treto”), a counsel- or employed by the Child Protection Team, whose job description includes interviewing individuals who might have suffered sexual abuse, testified that after she interviewed C.S., she recommended that C.S. “go to the Kristi House for therapeutic services for help—help with her victimization and for DCF to look into the safety of the other children in the home, their concern for the mother’s ability to protect the other children.” Although the defendant concedes that Treto did not directly testify as to C.S.’s credibility or that she believed C.S. was telling the truth, the defendant nevertheless contends that Tre-to’s testimony left the jury with the unmistakable impression that she believed that C.S. was telling the truth. Ramayo v. State, 132 So.3d 1224, 1226 (Fla. 3d DCA 2014) (stating that it is improper for an expert to vouch for the truthfulness or credibility of the victim); Geissler v. State, 90 So.3d 941, 947 (Fla. 2d DCA 2012) (“Even if the expert does not comment directly on the child victim’s credibility, expert testimony is improper if the juxtaposition of the questions propounded to the expert gives the jury the clear impression that the expert believed that the child victim was telling the truth.”) (emphasis added).

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Scott v. State, 218 So. 3d 476, 2017 Fla. App. LEXIS 6163 (Fla. Ct. App. 2017).

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