GESNER PIERRE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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.
Gesner Pierre appeals his conviction for sexual battery on a child under age twelve, challenging the jury verdict, sentencing, interpreter procedures, and evidentiary rulings. The Florida Third District Court of Appeal affirms the conviction and sentence, finding no reversible error in the trial proceedings.
The court affirmed the conviction and sentence on all grounds: (1) the jury verdict clearly referred to sexual battery on a child under twelve, the only sexual battery instruction given; (2) no fundamental error occurred from the interpreter's absence where the defendant understood English and declined verbatim translation; (3) the age argument was not properly preserved for appeal as it was not raised in the motion for acquittal, and the defendant's own testimony supported the jury finding of his age; (4) most credibility objections were not preserved, and any error was harmless; (5) the child victim's hearsay statements were properly admitted under Florida Statute Section 90.803(23).
[1] A jury verdict of "sexual battery" is presumed to refer to the specific sexual battery offense for which jury instructions were provided, absent objection to the verdict…
[2] A defendant's failure to object to the absence or cessation of verbatim translation during proceedings waives the claim of fundamental error, especially when the defendan…
Previewing 2 of 6 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“the jury verdict found the defendant guilty of "[s]exual [b]attery" with a specific finding and that the defendant was "18 years of age or older"; the trial court fully instructed the jury as to the essential elements of sexual battery on a child under the age of twelve [§ 794.011(2), Fla.Stat. (1989)]; the only lesser included offense instruction given to the jury was for simple battery [§ 784.03, Fla.Stat. (1989) ]. It is therefore obvious that the verdict of guilty of "sexual battery" refers to the only jury instruction given on sexual battery—namely, sexual battery on a child under the age of twelve.”
Establishes that the jury verdict unambiguously referred to the charged offense of sexual battery on a child under twelve, resolving the defendant's challenge to the verdict.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePierre was convicted by jury of sexual battery on a child under age twelve. The trial court appointed an interpreter for Pierre, a non-English speaker…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Simple Battery cases and more on FLexlaw
PER CURIAM.
This is an appeal by the defendant Ges-ner Pierre from a final judgment of conviction and sentence for sexual battery on a child under the age of twelve [§ 794.011(2), Fla.Stat. (1989) ], which was entered below upon an adverse jury verdict. We affirm.
First, the defendant urges that the trial court erred in entering the judgment and sentence below because the jury verdict returned does not support such judgment or sentence.
We disagree.
The jury verdict found the defendant guilty of “[sjexual [bjattery” with a specific finding and that the defendant was “18 years of age or older”; the trial court fully instructed the jury as to the essential elements of sexual battery on a child under the age of twelve [§ 794.011(2), Fla.Stat. (1989)]; the only lesser included offense instruction given to the jury was for simple battery [§ 784.03, Fla.Stat. (1989) ]. It is therefore obvious that the verdict of guilty of “sexual battery” refers to the only jury instruction given on sexual battery—namely, sexual battery on a child under the age of twelve. Indeed, the defendant made no objection whatever to the form of the verdict below. Because the sentence was properly entered upon this judgment, we also reject the claimed sentencing error urged by the defendant. Lewis v. State, 566 So. 2d 270, 271-72 (Fla. 2d DCA 1990), rev. denied, 581 So. 2d 165 (Fla.1991).
Second, the defendant urges that the trial court erred in failing to have an interpreter for the defendant throughout all the proceedings below.
We disagree. The court appointed an interpreter to translate the proceedings below for the defendant whenever necessary. The defendant, however, was able to understand virtually everything that was said, and, accordingly, the interpreter ceased verbatim translation for the defendant, and, at times, did no translation at all. The defendant testified in English on direct examination and made no objection when the interpreter was not in court or was not providing verbatim translation; indeed, the interpreter informed the trial judge that the defendant had declined verbatim translation of the proceedings because he was able to understand what was being said in court. We are therefore unable to say, as urged, that any fundamental error was committed by the absence of an interpreter for some parts of the proceedings. See Larias v. State, 528 So. 2d 944 (Fla. 3d DCA 1988); Monte v. State, 443 So. 2d 339 (Fla. 2d DCA 1983).
Third, the defendant contends that the trial court erred in denying the defendant’s motion for judgment of acquittal made at the close of the state’s case because the state failed to adduce any evidence that the defendant was eighteen years of age or older. This point has not been properly preserved for appellate review. Although the defendant moved for a judgment of acquittal at the close of the state’s case, he did not do so based on the ground that he now urges on appeal; if he had, any error might have been cured by allowing the state to reopen its case and establish the defendant’s age. Under these circumstances, it is settled that the defendant may not urge, for the first time on appeal, an argument which was not raised below in a motion for judgment of acquittal. Johnson v. State, 478 So. 2d 885, 886 (Fla. 3d DCA 1985), dismissed, 488 So. 2d 830 (Fla.1986).
Moreover, the jury finding that the defendant was eighteen years or older in age is supported by the defendant’s testimony at trial.
Fourth, the defendant contends that the trial court committed reversible error in allowing the state to question certain witnesses, including the defendant, about the credibility of other witnesses. This point, however, has not been properly preserved for appellate review as to the complained-of testimony of Dr. Wunder-man and Joel Price because the defendant made no objection to such testimony; moreover, the same is true of most of the testimony of the defendant where no objection was made below. As to the testimony of Adriana Delva which was objected to, no direct opinion was ever elicited from this witness as to the credibility of another witness; and to the extent that an indirect opinion was elicited concerning the credibility of the victim’s accusation against the defendant, the defendant clearly opened the door for such a question by eliciting from the same witness testimony that the child victim was the kind of child who would lie to get her way. See Glendening v. State, 536 So. 2d 212, 221 (Fla.1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989); Assiag v. State, 565 So. 2d 387 (Fla. 5th DCA 1990); cf. Preston v. State, 528 So. 2d 896, 899 (Fla.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1356, 103 L.Ed.2d 824 (1989); Ellison v. State, 349 So. 2d 731, 732 (Fla. 3d DCA 1977), cert. denied, 357 So. 2d 185 (Fla.1978).
As to the complained-of testimony of the defendant which was objected to on two occasions, the previous admission of the same or similar testimony without objection rendered the complained-of testimony entirely harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Flanagan v. State, 586 So. 2d 1085, 1099 (Fla. 1st DCA 1991); Erickson v. State, 565 So. 2d 328, 334-35 (Fla. 4th DCA 1990), rev. denied, 576 So. 2d 286 (Fla.1991).
Moreover, our review of the totality of the complained-of testimony convinces us that no fundamental error has shown by the admission of such testimony. See Glendening, 536 So. 2d at 221; Clark v. State, 363 So. 2d 331, 333-34 (Fla.1978).
Finally, we have reviewed the various attacks made by the defendant on the admissibility of the hearsay statements of the child-victim and conclude that such statements were properly admitted under Section 90.803(23), Florida Statutes (1989). See Perez v. State, 536 So. 2d 206 (Fla.1988), cert. denied, 492 U.S. 923, 109 S.Ct. 3253, 106 L.Ed.2d 599 (1989); Jones v. State, 582 So. 2d 110, 111 (Fla. 3d DCA), dismissed, 592 So. 2d 681 (Fla.1991); Myles v. State, 582 So. 2d 71 (Fla. 3d DCA), juris, accepted, 591 So. 2d 631 (Fla.1991).
Affirmed.
PER CURIAM.
The defendant has filed a motion for rehearing, clarification, and rehearing en banc which we deny, save in one particular. We clarify our previously filed opinion and conclude, based on the circumstances of this case, that the probative value of the child-victim’s hearsay statements herein was not substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury or needless presentation of cumulative evidence. Pardo v. State, 596 So. 2d 665 (Fla.1992) approving in relevant part State v. Pardo, 582 So. 2d 1225 (Fla. 3d DCA 1991); § 90.403, Fla. Stat. (1989).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Baker v. State, 760 So. 2d 1085 (Fla. 5th DCA 2000)…others were corroborated by the testimony of prior witnesses, which substantiated Doyle’s opinions, any opinion testimony erroneously given by the detective was harmless error. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). See also Pierre v. State, 597 So. 2d 853, 855 (Fla. 3d DCA 1992). Fourth, Baker argues the trial court denied his motion for mistrial because Detective Doyle testified that Baker had been given the opportunity to provide an exculpatory motive for the killing, but failed to do so, implicat…
-
State v. Malarney, 617 So. 2d 739 (Fla. 4th DCA 1993)…Massard v. State, 501 So. 2d 1289 (Fla. 4th DCA 1986), rev. dismissed, 504 So. 2d 403 (Fla.1987). Here, it is obvious that the verdict referred to the only instruction given and the only issue litigated: sexual battery upon a child. Pierre v. State, 597 So. 2d 853 (Fla. 3d DCA 1992). Finally, the sexual battery statute refers to the defendant’s age only in prescribing the punishment. Jesus v. State, 565 So. 2d 1361 (Fla. 4th DCA 1990); but see Baker v. State, 604 So. 2d 123 (Fla. 3d DCA 1992). The defendant’s…
-
Smith v. State, 640 So. 2d 1257 (Fla. 3d DCA 1994)…92); Mann v. State, 603 So. 2d 1141 (Fla.1992); Hodges v. State, 595 So. 2d 929 (Fla.1992); State v. McCloud, 577 So. 2d 939 (Fla.1991); Farinas v. State, 569 So. 2d 425 (Fla.1990); Perez v. State, 604 So. 2d 916 (Fla. 3d DCA 1992); Pierre v. State, 597 So. 2d 853 (Fla. 3d DCA 1992); Roberts v. State, 500 So. 2d 338 (Fla. 4th DCA 1986); Tarpley v. State, 477 So. 2d 63 (Fla. 3d DCA 1985); Dodson v. State, 356 So. 2d 878 (Fla. 3d DCA), cert. denied, 360 So. 2d 1248 (Fla.1978), except that which urges error in t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (25 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Pardo v. State, 596 So. 2d 665 (Fla. 1992)
- Glendening v. State, 536 So. 2d 212 (Fla. 1988)
- Perez v. State, 536 So. 2d 206 (Fla. 1988)
- Erickson v. State, 565 So. 2d 328 (Fla. 4th DCA 1990)
- Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991)
- Darrel Michael Abbott v. State, 478 So. 2d 885 (Fla. 2d DCA 1985)
- Ellison v. State, 349 So. 2d 731 (Fla. 3d DCA 1977)
- Whatley v. Skaggs Cos., Inc., 492 U.S. 907 (U.S. 1989)