Smith v. State
2012 Fla. App. LEXIS 14855
| Fla. Dist. Ct. App. | 2012Background
- Appellant is the adoptive mother of the victim; victim D.S. testified to multiple acts of sexual activity beginning when he was around thirteen.
- Appellant claimed D.S. assaulted her; defense described two non-intercourse incidents and two intercourse incidents initiated by D.S., with one occurring after appellant’s hysterectomy.
- Therapist notes and communications led to a chain of events where D.S. recanted and later retracted, and the state did not disclose these contemporaneous statements initially.
- State charged multiple acts within a long time frame for lewd and lascivious conduct, and tried one count that encompassed numerous acts.
- At trial, defense sought to present testimony from ASAs Ibarra and new ASA regarding D.S.’s recantation/pressure to support motive and credibility; court denied.
- JNOV was granted on one sexual battery count; jury convicted on the remaining sexual battery count tied to post-hysterectomy intercourse and on a lewd and lascivious conduct count; court downwardly departed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether excluding Ibarra/ASA testimony was error | Appellant argues it showed motive/pressure and state nondisclosure, affecting credibility. | State contends testimony was irrelevant or prejudicial due to D.S.'s on-record statements. | Reversed for new trial; admission of Ibarra/ASA evidence required to prove motive/pressure. |
| Whether lewd and lascivious count violated unanimity | Charging multiple acts in one count violated unanimity; must elect a single act. | Whittingham permits broader charging; no fundamental error due to objection timing. | Conviction for lewd and lascivious conduct reversed and remanded to elect a single act. |
| Whether the defense theory instruction was required | Defense needed instruction acknowledging DS as the aggressor; standard instructions misled jury. | Standard instructions adequate; defense theory instruction unnecessary. | Instruction on defense theory required on retrial. |
| Whether other stated errors require reversal | Exclusion of witnesses and other errors undermine credibility and defense. | No additional reversible errors beyond those addressed. | Remand for new trial; affirmations limited to other issues addressed. |
Key Cases Cited
- Vannier v. State, 714 So.2d 470 (Fla. 4th DCA 1998) (critical witnesses must be allowed to testify to raise reasonable doubt)
- Rivera v. State, 561 So.2d 536 (Fla. 1990) (relevance governs admission of evidence supporting reasonable doubt)
- Love v. State, 971 So.2d 280 (Fla. 4th DCA 2008) (witness bias may be attacked to expose improper motive)
- Jones v. State, 678 So.2d 890 (Fla. 4th DCA 1996) (confrontation and bias concerns in evaluating witness credibility)
- Hair v. State, 428 So.2d 760 (Fla. 3d DCA 1983) (extrinsic evidence admissible for collateral impeachment to show bias)
- Correia v. State, 654 So.2d 952 (Fla. 4th DCA 1995) (extrinsic evidence used to impeach credibility and bias)
- Dempsey v. Shell Oil Co., 589 So.2d 373 (Fla. 4th DCA 1991) (principles of collateral impeachment and witness credibility)
- Campbell v. State, 2 So.3d 291 (Fla. 4th DCA 2007) (court can correct misleads when the state opens the door to testimony)
- Bozeman v. State, 698 So.2d 629 (Fla. 4th DCA 1997) (defense may introduce testimony to show bias when cross-exam insufficient)
- Mitchell v. State, 958 So.2d 496 (Fla. 4th DCA 2007) (entitlement to jury instruction on theory of defense when supported by evidence)
- Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007) (unanimity issues when single count covers multiple acts)
- Whittingham v. State, 974 So.2d 616 (Fla. 4th DCA 2008) (fundamental error analysis for charging patterns in child sexual abuse cases)
- Robinson v. State, 881 So.2d 29 (Fla. 1st DCA 2004) (unanimity concerns when single count encompasses multiple acts)