CHARLES RICHARD PHILLIPS, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Richard Phillips appeals his convictions for two counts of sexual battery on a child under 12. The court reverses, holding that the state improperly introduced 'pedophile profile' expert testimony as substantive evidence of guilt, with the prosecutor directly linking the defendant to the profile characteristics during closing argument.
The court holds that the admission of pedophile profile testimony used as substantive evidence of guilt is reversible error, particularly when, as here, the prosecutor argues at length that the defendant meets the characteristics of the profile. Unlike profile testimony merely presented as background information without linking to the defendant, using such testimony to suggest guilt based on profile matching constitutes 'trial by pedophile profile.'
[1] Pedophile profile testimony cannot be admitted as substantive evidence of a defendant's guilt.
[2] A prosecutor's closing argument linking a defendant to the characteristics of a pedophile profile constitutes reversible error.
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“While Dr. DeMaria in his testimony did not directly link the pedophile profile to appellant, the state unmistakably did.”
Establishes that while the expert witness was cautious, the prosecutor improperly made the direct connection between the profile and the defendant
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Join FLexlaw to unlock all legal intelligenceThe victim was under the baby-sitting care of appellant's wife. After she reported sexual improprieties by appellant, he was charged with sexual batte…
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SMITH, Judge.
Appellant appeals his convictions for two counts of sexual battery upon a child less than 12 years of age. We agree that the state was allowed to introduce inadmissible “pedophile profile” testimony as substantive evidence of appellant’s guilt and therefore reverse his convictions and remand for a new trial. Because of our disposition of this point, we do not reach the remaining points raised by appellant. Regarding the state’s cross-appeal, we agree that the trial court did not err in permitting the defendant to introduce evidence that the victim in this case charged that another man committed similar illegal acts upon her. State v. Savino, 567 So. 2d 892 (Fla.1990). We write in greater detail in this case to illustrate the improper use of pedophile profile testimony in the hopes that future convictions will not be subject to reversal on this ground.
The victim in this case was under the baby-sitting care of appellant’s wife. After she reported sexual improprieties by appellant to the authorities, he was charged with these sexual battery offenses. At his trial, the state presented the testimony of the victim,1 evidence of her prior consistent statements made to an HRS worker, a member of the Child Protection Team, and a friend of her grandmother, and admissions made by appellant to a deputy sheriff. In addition, the state called Dr. Michael DeMaria, a clinical psychologist, who testified over objection about the profile of a sexual abuser of children, describing, among other things, the two basic subgroups of a pedophile.
While Dr. DeMaria in his testimony did not directly link the pedophile profile to appellant, the state unmistakably did. In closing argument, the prosecuting attorney stated:
Going back to what Dr. DeMaria said, you heard he was an expert in his field, particular dealing with sexual victims and their perpetrators. He told you about the two types of pedophiles that there were. There were aggressive pedophiles and fixated pedophiles. The defense will probably tell you that there is no way that this man can do this to these children because he’s married. Well, you heard Dr. DeMaria say that one of the pedophiles is the regressed pedophile, and the regressed pedophile is often mar-riedi Just because you’re married does not mean you’re a pedophile — that you’re not a pedophile, excuse me, as the defense would probably have you believe. Then.he told, you about some of the things that pedophiles do or some of the things they think about. He told you they fantasize about having sex with children. Its constantly on their mind. He told you that they read books about sex with children, they watch movies or videos and that sometimes they need a release for that. Sometimes it can be masturbation and sometimes it can go further, which is the actual touching of the children. He told you that when pedophiles are playing with children, they get sexual feelings from playing with children. He told you that they try to deny their feelings so that they think hey, I’m normal, everybody thinks like this. And he told you they put themselves in situations where they have ready access to children, which is exactly what Mr. Phillips did, opened his home for baby-sitting so he could have ready access to children. And then, once again, as Dr. DeMaria told you with pedophiles it starts out with love, but it crosses the line, and the State submits that’s exactly what happened here.
And again, the prosecutor argued:
As Dr. DeMaria said, they try to generalize their feelings and believe that everybody thinks things like that. And when he [appellant] was talking about the sexual feelings, he [appellant] said I imagine they go through anybody’s mind. The State submits they don’t go through anybody’s mind ...
Significantly, during the state’s rebuttal closing argument the prosecutor said:
And lastly, the defense talks about the fact that anybody — the State is saying that anybody who just happens to like, have access to children must be pedophiles. That’s not what the State said. The State told you that there is a whole set of factors that you look at to determine if a person is a pedophile, not just one, a whole set of factors, those factors being whether or not they fantasize about children, whether or not they read books with children, whether or not they see movies with children, whether or not they have sexual thoughts going through their mind when they are playing with children, whether or not they masturbate when they are thinking about children and fantasizing about children, and whether or not they put themselves in situations where they have access to children. Its not one factor that makes you a pedophile, its a combination of factors. And the defendant had that combination of factors....
In both the majority and minority opinions in this court’s recent decision of Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991) (en banc), on reh’g questions certified, 16 F.L.W. D2693 (Fla. 1st DCA, Oct. 14, 1991), this court condemned the practice of using pedophile profile testimony as substantive evidence of a defendant’s guilt. While five members of the court would have permitted such testimony if offered for the purpose of providing juror understanding, the remainder of the court was of the view that admission of such testimony was error. However, a majority of the court agreed that admission of such testimony is subject to a harmless error analysis. While in Flanagan this court found the admission of such testimony to be harmless, it is our view that the admission of the testimony in this case cannot be considered as harmless error. In Flanagan, the profile testimony was not linked to the defendant, whereas in this case, the prosecutor argued at length that appellant met the characteristics of the profile. Thus, Dr. DeMaria’s testimony was used to show that because appellant met the characteristics of the profile, he committed the crime. Unlike Flanagan, this was trial by pedophile profile, which we find to be reversible error. Accordingly, appellant’s convictions are REVERSED, and this case is REMANDED for a new trial.
MINER, J., and WENTWORTH, Senior Judge, concur. ON MOTION FOR CERTIFICATION
PER CURIAM.
On motion filed by the state, we certify to the Florida Supreme Court the two questions certified as matters.of great public importance in Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991) (en banc), on reh’g questions certified, 16 F.L.W. D2693 (Fla. 1st DCA Oct. 14, 1991):
1. Is expert scientific testimony which does not meet the test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923) for admissibility of novel scientific evidence otherwise admissible as background information in a criminal trial? 2.Is Pedophile/child sex offender profile evidence admissible in a criminal trial?
SMITH and MINER, JJ., and WENTWORTH, Senior Judge, concur. . The victim’s testimony established the commission of one sexual battery, but not the other.
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Turtle v. State, 600 So. 2d 1214 (Fla. 1st DCA 1992)…ue that was not outweighed by the prejudicial effect it may have had. We conclude that this issue is governed by our recent decision in a similar case involving two counts of sexual battery upon a child less than 12 years of age, Phillips v. State, 589 So. 2d 1360 (Fla. 1st DCA 1991), questions certified (Fla. 1st DCA Dec. 26, 1991). The issue there presented was whether the trial court erred in allowing the state to introduce “pedophile profile” testimony as substantive evidence of the defendant’s guilt. The…
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GAY v. State, 607 So. 2d 454 (Fla. 1st DCA 1992)…red, or at any other time below, appellate counsel, citing to this court’s opinions in Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA1991) (en banc), on reh’g questions certified, 16 F.L.W. D2693 (Fla. 1st DCA Oct. 14, 1991) and Phillips v. State, 589 So. 2d 1360 (Fla. 1st DCA1991), on reh’g questions certified, 589 So. 2d at 1362-63, which disapproved of pedophile profile testimony as substantive evidence of a defendant’s guilt, argues that the admission of such testimony constituted fundamental error in th…
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Perera v. State, 873 So. 2d 389 (Fla. 3d DCA 2004)…2d 827, 829-30 (Fla.1993). See also Gay v. State, 607 So. 2d 454 (Fla. 1st DCA 1992) (where the court stated that the defendant was linked to the crimes charged through pedophile profile evidence received from an expert witness); Phillips v. State, 589 So. 2d 1360, 1361 (Fla. 1st DCA 1991)(where expert testified as to the characteristics of pedophiles and the [*392] prosecutor “argued at length” that the defendant met the profile characteristics). While we recognize that pedophile profile testimony is inadmi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Savino, 567 So. 2d 892 (Fla. 1990)
- Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991)