RICKY NELSON DEEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of sexual battery on a child under 11 years old. The trial court excluded evidence of the victim's prior sexual activity with others, and the appellate court reversed, holding that such evidence should have been admitted because the state introduced pediatric testimony about physical abnormalities that could have resulted from prior sexual encounters.
The court reversed and remanded for a new trial, holding that evidence of prior sexual encounters should have been admitted. The court rejected the state's narrow definition of 'injury' as only visible wounds and held that once the state introduced pediatric testimony about genital abnormalities, the defendant was entitled to present evidence of prior sexual activity to show an alternative source for those abnormalities.
[1] Evidence of a victim's prior consensual sexual activity with others may be admitted in a prosecution for sexual battery if it is established in camera that the evidence m…
[2] Evidence of a victim's prior consensual sexual activity with others may be admitted in a prosecution for sexual battery if it is established in camera that the evidence t…
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Join FLexlaw to unlock all legal intelligence“Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease”
Establishes the statutory framework governing admissibility of prior sexual conduct evidence in sexual battery prosecutions
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with sexual battery on an 11-year-old or younger victim. A pediatrician examined the victim over 45 days after the alleged abuse…
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[*16] UPCHURCH, Judge.
Appellant was convicted of sexual battery on a child eleven years of age or younger.1 Appellant contends that the trial court erred in refusing to admit evidence of the victim’s prior sexual acts with others. We agree and accordingly reverse and remand for a new trial.
This issue focuses on the definition of “injury” under section 794.022(2), Florida Statutes (1983), which provides as follows:
Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.
At trial, a pediatrician testified for the state that she had examined the victim on July 13,1984, over forty-five days after the date of the alleged abuse. She testified that she performed a general physical examination which proved to be normal except for finding slightly abnormal genitalia. The pediatrician observed that the entrance to the victim’s vagina was slightly more open than normal and her hymenal ring was not intact.
The state argues that because the physical examination reflected that the victim had sexual relations sometime in the past, but not necessarily the immediate past, these abnormalities cannot be considered injuries. The physical evidence, argues the state, did not irrevocably link the defendant to the crime so as to merit a showing of a source of injury other than the defendant. It appears that the state interprets the statute and the word “injury” to imply some kind of visible wound, rather than mere abnormalities and enlargements of the genitalia which could have been caused at an earlier date.
We disagree with the state’s overly restrictive definition. We conclude, however, that the admissibility of the evidence of prior sexual encounters does not depend solely on the meaning of the word “injury” and should have been admitted. The testimony of the pediatrician served to corroborate other testimony of appellant’s complicity. In view of the young age of the victim and without the evidence of prior acts, the jury would probably conclude that the physical changes in the child resulted solely from the alleged encounter with appellant. The state could have elected not to question the pediatrician about the child’s abnormal genitalia but, having done so, appellant was entitled to rebut this evidence by showing that there could have been another cause.
REVERSED and REMANDED for a new trial.
COBB, C.J., concurs.
COWART, J., dissents without opinion.
. § 794.011(2), Fla.Stat. (1983).
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Audano v. State, 641 So. 2d 1356 (Fla. 2d DCA 1994)…rsons other than the defendant. § 794.-022(2), Fla.Stat. (1993); McGriff v. State, 601 So. 2d 1320 (Fla. 2d DCA 1992); In the Interest of K.C., 582 So. 2d 741 (Fla. 4th DCA 1991); Skipper v. State, 537 So. 2d 1138 (Fla. 5th DCA 1989); Deel v. State, 481 So. 2d 15 (Fla. 5th DCA 1985), review denied, 488 So. 2d 831 (Fla.1986). Here, the nurse practitioner testified that the physical findings of intercourse could have occurred anytime in the preceding three years. B.H.’s mother [*1361] continued to have intermi…
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Schwarck v. State, 568 So. 2d 1326 (Fla. 3d DCA 1990)…physician’s testimony was relevant to the extent that it showed that the victim’s condition was consistent with having been sexually molested by the defendant as she described. Skipper v. State, 537 So. 2d 1138 (Fla. 5th DCA 1989) and Deel v. State, 481 So. 2d 15 (Fla. 5th DCA 1985), rev. denied, 488 So. 2d 831 (Fla.1986), relied upon by the defendant, are inapposite because in this case the defendant was specifically permitted to show during cross-examination of his wife that the doctor’s findings concernin…
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Baeza v. State, 489 So. 2d 36 (Fla. 4th DCA 1986)…rly excluded evidence from which the jury could have concluded that the defendant was not the source of his stepdaughter’s injury. This error requires reversal and remand for new trial on the two counts involving the stepdaughter. See Deel v. State, 481 So. 2d 15 (Fla. 5th DCA 1985); see also Commonwealth v. Majorana, 503 Pa. 602, 470 A. 2d 80 (1983); People v. Mikula, 84 Mich.App. 108, 269 N.W. 2d 195 (1978). We reach a different conclusion, however, with respect to the two counts in which the stepson was…
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