BRIAN JAMES KEARNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian James Kearney was convicted of lewd and lascivious assault upon a child and received a departure sentence. The Florida District Court of Appeal reversed his conviction, finding three significant evidentiary errors: improper expert credibility vouching, admission of insufficiently similar collateral offense evidence, and exclusion of evidence of the victim's father's potential bias and motive to fabricate.
Yes. The court erred in all three respects. The expert testimony improperly vouched for credibility in violation of precedent. The collateral offense evidence was inadmissible because the two situations were insufficiently similar despite a relaxed admissibility standard. The evidence of the father's statement regarding family reunification was admissible as non-hearsay to show bias or motive because it was not offered to prove the family would actually reunite.
[1] Expert witnesses may not testify to the credibility of an alleged victim.
[2] Collateral offense evidence is inadmissible if the offenses are not sufficiently similar to the charged offense, even under a relaxed standard.
Previewing 2 of 4 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 main issue in this case was the credibility of the accused and the accuser.”
Establishes that credibility was central to the case, making the evidentiary errors particularly prejudicial and non-harmless.
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Join FLexlaw to unlock all legal intelligenceKearney, the live-in boyfriend of a child's mother, was charged with fondling the prepubescent victim's vaginal area while she was asleep or pretendin…
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THOMPSON, Judge.
Brian James Kearney appeals his conviction and departure sentence for lewd and lascivious assault upon a child.1 We reverse the conviction based on the three errors asserted by Kearney.
First, the court erred in allowing the expert witnesses to vouch for the credibility of the alleged victim. Their testimony was similar to expert testimony ruled inadmissible in Price v. State, 627 So. 2d 64 (Fla. 5th DCA 1993).
Second, the court improperly admitted collateral offense evidence because, assuming without deciding that the two situations involved familial contexts, they are insufficiently similar even under the relaxed standard for admissibility set forth in Heuring v. State, 513 So. 2d 122 (Fla.1987). See Feller v. State, 637 So. 2d 911 (Fla.1994); Saffor v. State, 660 So. 2d 668 (Fla.1995). The collateral offense evidence was that Kearney and a girl had had a consensual sexual relationship, including intercourse and vaginal fondling, at his place of business and later in a shed on the premises of his residence. The charged offense was that, at a time when he was the mother’s live-in boyfriend, he came upon the alleged victim and fondled her vaginal area.
The child involved in the collateral offense, apparently a runaway or “throwaway” child, was nearly 16 when the incidents involving her occurred, while the alleged victim was prepubeseent and not yet eleven years old. Kearney had intercourse with the older girl while the alleged victim did not testify to intercourse. The alleged victim testified that she was asleep or pretending to be asleep at the time of the sexual contact, while the older girl’s testimony indicates that she was alert and aware when the sexual activity took place. The older girl was living with her own family when the relationship with Kearney began, and later she was living voluntarily on the grounds of Kearney’s residence. The alleged victim was living with her mother and Kearney by virtue of the mother’s custody, and was in a much more vulnerable position than the older girl. There was not an “additional showing of similarity” in order for the collateral offense evidence to be admissible. Saffor, 660 So. 2d at 671.
Third, we also agree with Kearney that the court erred in failing to admit evidence tending to prove bias or motive on the part of the victim’s father, who reported the alleged victim’s accusation. The victim’s brother would have testified to a statement by the father that once Kearney was out of the way, the family (separated by divorce) would be back together and everyone would be happy again. The court ruled the testimony inadmissible on the ground that it was hearsay, but it was not hearsay because it was not offered to prove that the family would be reunited if Kearney were out of the way. See § 90.801(l)(c), Fla.Stat. (1993).
The main issue in this case was the credibility of the accused and the accuser. We find these errors-are not harmless; accordingly, the conviction is reversed and the cause remanded for a new trial. We reverse the sentence without deciding whether it was erroneously imposed.
REVERSED and REMANDED for new trial consistent with this opinion.
PETERSON, C.J., and ANTOON, J., concur. . § 800.04(1), Fla.Stat. (1993).
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Alvarez v. State, 817 So. 2d 1037 (Fla. 3d DCA 2002)…ather was paying her off to say Hector [defendant] was molesting her.” The court ruled that statement inadmissible. That ruling was error. The statement was not hearsay, as it was not offered to prove the truth of its contents. See Kearney v. State, 689 So. 2d 1310 (Fla. 5th DCA 1997); see also section 90.801(1)(c), Florida Statutes (1997). See generally Ehrhardt, Florida Evidence § 801.2 (2000 Edition). However, when defense counsel resumed questioning Perez with the jury present, Perez testified without obj…
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Alvarez v. Crosby, 907 So. 2d 1231 (Fla. 3d DCA 2005)…im had stated in a telephone conversation that “her [the victim’s] father was paying her off to say Hector [defendant] was molesting her.” The statement was not hearsay, as it was not offered to prove the truth of its contents. See Kearney v. State, 689 So. 2d 1310 (Fla. 5th DCA 1997); see also section 90.801(1)(c), Florida Statutes (1997). See generally Ehrhardt, Florida Evidence § 801.2 (2000 Edition). “If an out-of-court statement is offered for a purpose other than proving the truth of its contents, the s…1 / 3
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Harrell v. State, 108 So. 3d 1146 (Fla. 5th DCA 2013)…State dismisses these statements as inadmissible hearsay. However, it appears based upon this limited record that the testimony would be non-hearsay and admissible to show bias under section 90.608(2), Florida Statutes. See, e.g., Kearney v. State, 689 So. 2d 1310 (Fla. 5th DCA 1997) (finding testimony that victim’s father made a statement that once defendant was out of the way the family would be back together and happy again was not hearsay and would have shown bias or motive on the part of the victim’s fat…
Authorities Cited
- State v. Fundora, 513 So. 2d 122 (Fla. 1987)
- Frederick A.R. Heuring v. State, 513 So. 2d 122 (Fla. 1987)
- Gov't Emps. Ins. Co. v. Jenkins, 637 So. 2d 911 (Fla. 1994)
- Saffor v. State, 660 So. 2d 668 (Fla. 1995)
- Price v. State, 627 So. 2d 64 (Fla. 5th DCA 1993)