No. 89-944 | Fla. Dist. Ct. App. | Feb 12, 1991
Lead Opinion
A.M., a juvenile, appeals an adjudication of delinquency based on two multiple counts of sexual battery, sexual battery using force, sexual intercourse with a family member, and lewd and lascivious assault. The two victims, ages ten and eleven, are the defendant’s sister and niece.
After A.M. had run away from home, and had been gone for about a week, the alleged assaults came to the attention of
The treating physician, a medical examiner at the Rape Treatment Center of Jackson Memorial Hospital, then testified that both of the young girls had multiple tears of the hymen consistent with their accounts to him of repeated sexual penetrations. The physician also testified that the girls told him they were raped by the defendant. Again the court overruled the defense’s hearsay objection on the basis of the State’s argument that the testimony was admissible as fact evidence in support of the doctor’s conclusion.
In this appeal, A.M. challenges the admission of the accusatory testimony given by both the mother and the treating physician. The State argues that the statement given by the mother was not offered to prove the truth of the matter asserted, but rather to establish a time when the report of the assaults was made. We agree. See Barnes v. State, 477 So. 2d 6" court="Fla. Dist. Ct. App." date_filed="1985-09-20" href="https://app.midpage.ai/document/barnes-v-state-1723297?utm_source=webapp" opinion_id="1723297">477 So.2d 6 (Fla. 2d DCA 1985) (where the victim’s credibility was the main basis of defense, the neighbor’s testimony regarding what he was told about the defendant’s suspicious behavior was not offered to prove the truth of the matter asserted, but to prove the fact that the statements were, in fact, made to him. As such, they constituted a relevant circumstance .in the manner in which the offenses became known and, therefore, were not hearsay), rev. denied, 484 So.2d 7 (Fla.1986).
The State next argues that the physician’s statement was admissible as a hearsay exception under section 90.803(4), Florida Statutes (1989), in that it was “made for the purpose of medical diagnosis or treatment by a person seeking the diagnosis or treatment.”
We agree with the State that there is no reasonable possibility that the result would have been different without that part of the doctor’s statement which simply echoed the in-court testimony of the girls and their mother that the defendant was the assailant. Begley v. State, 483 So. 2d 70" court="Fla. Dist. Ct. App." date_filed="1986-02-05" href="https://app.midpage.ai/document/begley-v-state-1097683?utm_source=webapp" opinion_id="1097683">483 So.2d 70 (Fla. 4th DCA 1986); see also Ciccarelli, 531 So. 2d 129" court="Fla." date_filed="1988-09-08" href="https://app.midpage.ai/document/ciccarelli-v-state-1150215?utm_source=webapp" opinion_id="1150215">531 So.2d 129; Ingvaldsen v. State, 539 So. 2d 613" court="Fla. Dist. Ct. App." date_filed="1989-03-22" href="https://app.midpage.ai/document/ingvaldsen-v-state-7572545?utm_source=webapp" opinion_id="7572545">539 So.2d 613 (Fla. 4th DCA 1989).
Affirmed.
HUBBART and FERGUSON, JJ., concur.
. She is also A.M.’s sister and adopted mother.
. Section 90.803(4), includes as a hearsay exception:
Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment ... which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.
[Emphasis supplied.]
Concurrence Opinion
(specially concurring).
Although I concur in the result, I disagree with the majority’s analysis of the physician’s statements. In my view, it is necessary to decide whether the admission of the physician’s testimony constituted error. Section 90.803(4), Florida Statutes (1987), creates a hearsay exception for statements “made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment ... insofar as
The majority does not specify whether it considers the physician’s statements hearsay. In my opinion, the statements are hearsay but were properly admitted under the exception created by section 90.803(4). The physician testified that the identity of the assailant was pertinent to the diagnosis and psychological treatment of the girls.
Q. Well, at the time she made the statement to you, that her brother had been sexually assaulting her, did — was she — is part of your examination for psychological purposes, or counseling, as well?
A. Yes, because we have a social worker in the Rape Treatment Center, that counsels the patient.
Q. All right. And is it pertinent in the sense as to what type of counseling she will receive, whether a family member, in fact sexually assaulted her?
A. Yes, it’s pertinent.
The doctor’s hearsay testimony is admissible as an exception under section 90.803(4), because it contains a statement made to a physician for purposes of treatment. The challenged statements were made for the purposes of medical treatment, and the persons making the statements knew they were being made for that purpose. Lazarowicz v. State, 561 So. 2d 392" court="Fla. Dist. Ct. App." date_filed="1990-05-08" href="https://app.midpage.ai/document/lazarowicz-v-state-1867368?utm_source=webapp" opinion_id="1867368">561 So.2d 392 (Fla. 3d DCA 1990); Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986). Here, the physician questioned the victims about the identity of their assailant to enable them to be counseled appropriately at the Rape Treatment Center. Whether the assailant was a family member was a pertinent inquiry for that objective, and the trial court properly admitted the physician’s testimony.