TIVI AHO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tivi Aho was convicted of four counts of involuntary sexual battery and one count of burglary with assault. On appeal, the court reversed and remanded for a new trial, finding that the trial court erred in admitting prejudicial hearsay testimony about the victim's suicidal ideation.
The court held that while the disputed testimony constituted hearsay, even if it had some relevance to the question of consent, it was properly excluded because the danger of unfair prejudice substantially outweighed its probative value. The probative value was minimal given the ten-day gap between the incident and the statement, but the prejudicial effect was substantial and likely influenced the jury's credibility determination.
[1] Hearsay evidence is inadmissible to prove the truth of the matter asserted.
[2] Evidence of a victim's state of mind may be relevant to the issue of consent.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To the extent that the disputed testimony was introduced to prove the fact that the prosecutrix contemplated suicide during the interim, it constituted hearsay.”
Establishes that the testimony was hearsay when used to prove the victim's actual suicidal contemplation.
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Join FLexlaw to unlock all legal intelligenceAppellant admitted entering the prosecutrix's apartment without permission but claimed all sexual and assault acts occurred with her consent. Ten to f…
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GRIMES, Judge.
This is an appeal from convictions on four counts of involuntary sexual battery and one count of burglary coupled with an assault upon the same person against whom the sexual batteries were perpetrated. Appellant admitted that he entered the prose-cutrix’ apartment without her permission, but he testified that he did all of the acts which comprised the sexual batteries and the assault with her consent. Appellant’s most serious contention of error concerns the rebuttal testimony of Officer Pamela Horner of the Largo Police Department about a conversation with the prosecutrix ten days to two weeks after the alleged sexual batteries had taken place. Officer Horner testified that the prosecu-trix contacted her for transportation to Pi-nellas Horizons in order to obtain counsel-ling. She said that the prosecutrix was very upset and that she stated that as a result of the incident involving appellant, she had considered committing suicide. Appellant objected to this line of testimony as being irrelevant and hearsay, but the court overruled his objection.
To the extent that the disputed testimony was introduced to prove the fact that the prosecutrix contemplated suicide during the interim, it constituted hearsay.1 The state, however, endeavors to justify the admission of the testimony on the premise that it reflected the prosecutrix’ state of mind which was relevant to the issue of consent. We cannot agree. While the testimony concerning the prosecutrix’ conversation may have had some relevance to the question of consent it would still not be admissible if the danger of unfair prejudice or confusion substantially outweighed its probative value. Perper v. Edell, 44 So. 2d 78 (Fla.1949); McCormick on Evidence § 185 (2d ed. 1972). This, we think, was the case.
The probative value of the prosecutrix’ statements and agitation cannot be said to have been very great, coming, as they did, ten days after the incident in question. Moreover, Officer Horner’s testimony was quite prejudicial. The state predicated its case against appellant upon the testimony of the prosecutrix and certain circumstantial evidence which supported her version of the events. Appellant’s sole defense was that she had consented to everything that occurred. In the final analysis, the jury had to decide between the truthfulness of the two. Evidence that the prosecutrix later told Officer Horner that she was considering suicide as a result of the occurrence was highly inflammatory and may well have tipped the scales. See People v. Egan, 331 Ill. 489, 163 N.E. 357 (1928); Bailey v. State, 30 S.W. 669 (Tex.Crim.App.1885). Cf. Bynum v. State, 76 Fla. 618, 80 So. 572 (1919), in which the court held that it was reversible error to admit testimony concerning the sufferings or impairment of health of the prosecuting witness in a rape case.
REVERSED and REMANDED for a new trial.
HOBSON, Acting C. J., and DANAHY, J., concur. . Permitting Officer Horner to state what the prosecutrix said had previously occurred would be analogous to the practice condemned in Roti v. State, 334 So. 2d 146 (Fla. 2d DCA 1976), of allowing a policeman to testify about a prior consistent statement made by the complaining witness.
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Johnson v. State, 40 So. 3d 883 (Fla. 4th DCA 2010)…on 90.403 objection.2 We conclude, based on our own review of this issue, that the trial court erred in admitting evidence of the suicide attempts; its probative value was substantially outweighed by the danger of unfair prejudice. In Aho v. State, 393 So. 2d 30, 31 (Fla. 2d DCA 1981), the Second District Court of Appeal reversed a defendant’s conviction of involuntary sexual battery because the trial court improperly admitted a police officer’s testimony that the victim stated that, as a result of the sexu…
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Petruschke v. State, 125 So. 3d 274 (Fla. 4th DCA 2013)…dence was strong given that the alleged victim was only three years old and there [*282] were no other witnesses to the alleged touching. Appellant’s reliance upon cases such as Johnson v. State, 40 So. 3d 883 (Fla. 4th DCA 2010), and Aho v. State, 393 So. 2d 30 (Fla. 2d DCA 1981), is misplaced. In those cases, the appellate courts reversed convictions for sexual crimes where the state elicited evidence that the complainants were suicidal after the alleged abuse. For example, in Johnson, a prosecution for…
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Holley v. State, 523 So. 2d 688 (Fla. 1st DCA 1988)…fense, a description con [*691] sistent with other evidence, strongly supported the victim’s testimony. Appellant contends that prejudicial error occurred when testimony about the baby’s premature birth was put before the jury. Citing Aho v. State, 393 So. 2d 30 (Fla. 2d DCA 1981), appellant maintains the evidence was introduced improperly merely to solicit the jury’s sympathy for the victim. However, appellant put at issue the date of the child’s conception by introducing testimony that the crime did not o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perper v. Edell, 44 So. 2d 78 (Fla. 1949)
- Roti v. State, 334 So. 2d 146 (Fla. 2d DCA 1976)
- Bynum v. State, 76 Fla. 618 (Fla. 1918)