WILLIAM JOSEPH THEUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
William Joseph Theus appeals his conviction and sentence for four counts of lewd and lascivious battery on a child less than 16 years of age. Among the issues raised on appeal is the claim that the trial court erred in allowing a state witness, Marilyn Barnes, a member of the Child Protection Team, to refer on direct examination to a scientific article which supported Barnes’ decision not to conduct a physical examination of the victim of the batteries. Appellant timely objected to Barnes’ reference to the article, but the objection was denied. The trial court erred. See Liberatore v. Kaufman, 885 So. 2d 404 (Fla. 4th DCA 2003)(holding that an expert cannot, on direct examination, bolster his testimony by testifying that a treatise agrees with his opinion). However, in the context of this case, we hold the error is harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). The remaining issues raised on appeal are without merit.
Accordingly, appellant’s judgment of conviction and sentence are AFFIRMED.
WOLF, VAN NORTWICK AND BROWNING, JJ., concur.
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Linn v. Basil D. Fossum, M.D., 946 So. 2d 1032 (Fla. 2006)…ross-examination, it is inappropriate to allow experts on direct examination to bolster their credibility or to supplement their opinions by “testifying that a treatise agrees with their opinion.” Schwarz, 695 So. 2d at 455; see also Theus v. State, 922 So. 2d 391, 391 (Fla. 1st DCA 2006) (trial court erred in allowing expert witness to refer on direct examination to a scientific article that supported expert’s decision not to conduct a physical examination of the victim); Quarrel v. Minervini, 510 So. 2d 977…
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McDANNOLD v. State, 959 So. 2d 320 (Fla. 1st DCA 2007)…ld’s fatal injuries, not a single fall from a bed. Accordingly, even in the absence of the minimal bolstering, Dr. Aruzza’s testimony dismissed a fall from a bed as a possible cause of the victim’s fatal skull and brain injuries. See Theus v. State, 922 So. 2d 391, 391(Fla. 1st DCA 2006) (holding improper bolstering of expert testimony amounted to harmless error pursuant to State v. DiGuilio, 491 So. 2d 1129 (Fla.1986)). The second issue we address is appellant’s eleventh ground for relief, which appellant…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Carmela Liberatore and Umberto Liberatore v. Samuel Kaufman, M.D., 835 So. 2d 404 (Fla. 4th DCA 2003)