DANNY RAY BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1988-04-12
No. BQ-33
THOMPSON and ZEHMER, JJ., concur.
523 So. 2d 729 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 9 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Danny Ray Brown appeals his convictions for attempted sexual battery and commission of a lewd act upon a child less than twelve years old, challenging the admission of expert testimony that the victim was sexually abused. The court affirmed, holding that the expert's opinion was proper because it did not opine on whether a crime occurred (since "sexual abuse" is not a Florida offense), and any error was harmless given overwhelming corroborating evidence.


Holding

The court affirmed the admission of the expert's testimony for two reasons: first, because "sexual abuse" is not a crime in Florida (the defendant was charged with sexual battery, a different offense), so the statement did not opine that a crime occurred; second, even if erroneous, any error was harmless given the overwhelming corroborating evidence of guilt.


Headnotes

[1] An expert witness's opinion that a victim was sexually abused is not an opinion that a crime occurred, as "sexual abuse" is not a distinct offense in Florida.

[2] Even if an expert's testimony is erroneously admitted, the error is harmless when there is overwhelming evidence of guilt.

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Key Quotes

“there is no offense of sexual abuse in Florida”

Explains why the expert's opinion that the victim was sexually abused did not constitute an impermissible opinion that a crime had occurred

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Facts & Procedural History

A five-year-old child was examined by Linda Cooper, a counselor with the Child Protection Team qualified as an expert in child sexual abuse. After Coo…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

The appellant in this case, Danny Ray Brown, appeals his convictions of attempted sexual battery upon a child less than twelve years of age and commission of a lewd act upon a child. We affirm.

According to the trial transcript contained in the record on appeal, Linda Cooper, a counsellor with the Child Protection Team who examined the five-year-old victim in this case, was qualified as an expert in the field of child sexual abuse. After Cooper had testified regarding the types of signs she generally looked for to determine whether a child had been sexually abused, and regarding whether the victim in this case had exhibited any of those signs, the prosecution asked Cooper wheth er, based on her training and experience, she had an opinion as to whether the victim had been sexually abused. Over defense counsel’s objections, Cooper replied, “I do believe that [the victim] was sexually abused.” The defendant argues on appeal that Cooper’s response to the prosecutor’s question was improper as it constituted an opinion that a crime had been committed, and served to bolster the credibility of the victim. According to appellant, Cooper could have presented the evidence to the jury in a permissible manner by using the type of language illustrated in North v. State, 65 So. 2d 77 (Fla.1952) and Ferradas v. State, 434 So. 2d 24 (Fla. 3d DCA 1983), i.e., that the victim’s symptoms were “consistent with” one who had been sexually battered.

We affirm the admission of Cooper’s testimony for two reasons. First, the appellant in this case was charged with sexual battery of a child less than twelve years of age and found guilty of attempted sexual battery. The objected-to statement made by Cooper was that, in her opinion, the victim had been sexually abused. As this court stated in Youngblood v. State, 492 So. 2d 793 (Fla. 1st DCA 1986), there is no offense of sexual abuse in Florida. Cooper’s testimony, therefore, was not a statement of opinion that a crime had occurred or that Brown had committed sexual battery or attempted sexual battery on the victim. Second, in addition to the statement made by Cooper, the State presented the testimony of a medical doctor who had examined the victim for possible sexual abuse, the victim herself, and several family members, all of which support the judgment made by the jury. Even assuming arguendo that the statement made by Cooper was erroneously admitted, the error is harmless in light of the overwhelming evidence of guilt. Bloodworth v. State, 504 So. 2d 495 (Fla. 1st DCA 1987).

We limit our decision in this case strictly to the facts at hand, and caution that the decision is not to be construed as condoning either the use of an expert’s opinion as to the guilt or innocence of the accused or the use of expert testimony to bolster the credibility of a witness. We note that it would have been more appropriate, as argued by appellant, for the expert witness to have testified that the victim’s behavior was “consistent with” one who had been sexually battered or abused, than to have testified that the victim was sexually abused. When stated in those terms, a jury would be less likely to misconstrue the expert witness’s opinion as either evidence that the defendant committed a crime against the victim or as an opinion as to the truthfulness of the victim’s statements regarding the defendant’s conduct. See Ward v. State, 519 So. 2d 1082 (Fla. 1st DCA 1988).

Accordingly, the conviction and sentence are hereby affirmed.

THOMPSON and ZEHMER, JJ., concur.


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Citator

Cited By

  • Toro v. State, 642 So. 2d 78 (Fla. 5th DCA 1994)
    …ated child were consistent with those displayed by victims of child abuse. Id. at 1084. The court proceeded to make its analysis of admissibility of this evidence based upon the criteria set forth in Kruse. On the heels of Ward came Brown v. State, 523 So. 2d 729 (Fla. 1st DCA 1988), where an HRS child protection team counselor who examined a five-year old was qualified as an expert in the field of child sexual abuse; and the counselor was permitted to testify concerning the signs she generally looked for to…
  • Micky Dale Davis v. State, 527 So. 2d 962 (Fla. 5th DCA 1988)
  • State v. Malarney, 617 So. 2d 739 (Fla. 4th DCA 1993)
    …tim’s behavior is consistent with that of a sexually abused child has been held admissible. Calloway v. State, 520 So. 2d 665 (Fla. 1st DCA), rev. denied, 529 So. 2d 693 (Fla.1988); Ward v. State, 519 So. 2d 1082 (Fla. 1st DCA 1988); Brown v. State, 523 So. 2d 729 (Fla. 1st DCA 1988). Here, Ma-larney contends that the defense expert’s testimony that the victim’s behavior is inconsistent with that of a sexually abused child should be equally admissible. However, that defense expert's conclusion of inconsistenc…

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