Francis v. StateFrancis v. State
The appellant, Robert Arnold Francis, appeals the judgments and sentences entered against him after a jury found him guilty of one count of capital sexual battery and two counts of battery. Because we find that the trial court erred in some of its evidentiary rulings, we reverse and remand for a new trial.
The appellant was charged by indictment with three counts of capital sexual battery in violation of
The trial court sentenced the appellant to life imprisonment without eligibility for parole for twenty-five years on the capital sexual battery charge and to a one year term of imprisonment on each of the battery charges. The three sentences were to be served concurrently.
The appellant filed a timely notice of appeal and contends that the trial court erred by allowing the state to present certain testimonial evidence. We agree that the trial court committed reversible error on at least two occasions.
During its opening statement, the state announced that it would present a witness who would testify that the appellant was about sixty years old and that she had met the appellant about fourteen years prior to trial when the appellant was dating her then fourteen year old sister. The appellant objected. The trial court overruled the objection based upon the state‘s argument that the testimony would be relevant to prove that the appellant was over the age of eighteen. During the state‘s case-in-chief and over the appellant‘s objection, Penny Peeno, the victims’ mother and appellant‘s sister-in-law, testified as the state had represented in its opening statement. She also testified that the appellant was about thirty years older than her sister (appellant‘s wife). The state subsequently presented the testimony of a child psychologist who had met with the victims. Over the appellant‘s objection, the psychologist was asked if he could form an opinion about the personality characteristics of a sixty year old individual who was thirty years older than his wife, and who began dating his wife when she was approximately fourteen, fifteen, or sixteen years old. The psychologist testified, over further objection, that such an individual was attracted to adolescents.
The above testimony by Ms. Peeno was irrelevant and, therefore, inadmissible because it did not tend to prove or disprove a material fact. See
Furthermore, even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
The trial court‘s error in admitting Ms. Peeno‘s testimony in violation of section 90.403 was compounded when the trial
We disagree with the state‘s argument on appeal that the testimony concerning the appellant‘s marriage was admissible as similar fact evidence pursuant to
The court also erred by allowing the state to ask certain questions while cross-examining the appellant‘s father-in-law, Howard Swartwood. Mr. Swartwood testified that the appellant had a very good reputation for truthfulness. On cross-examination, over the appellant‘s objection, the state was allowed to ask the witness if his opinion would change if he knew the appellant had dated his daughter (appellant‘s wife) behind his back when she was fourteen or fifteen years old or if he knew the appellant was engaging in intercourse with her at that time.
We agree that the state has the right to cross-examine a character witness concerning specific acts of misconduct after the prosecutor has informed the court that he has reasonable ground to believe, and does believe, that the misconduct was actually committed by the accused. Greenfield v. State, 336 So.2d 1205 (Fla. 4th DCA 1976). The incidents inquired about, however, must be relevant to the character trait involved. Butler v. State, 376 So.2d 937 (Fla. 4th DCA 1979); see also, United States v. Nixon, 777 F.2d 958 (5th Cir.1985); United States v. Glass, 709 F.2d 669 (11th Cir.), reh‘g denied, 717 F.2d 1401 (1983); but see, Robinson v. State, 393 So.2d 33 (Fla. 1st DCA 1981). Since Mr. Swartwood‘s testimony was limited to the appellant‘s reputation for truthfulness, the state‘s questions concerning the appellant‘s acts of dating and having intercourse with Mr. Swartwood‘s daughter were not relevant to the character trait at issue, and the trial court erred by allowing those questions to be asked.
Since the evidence against the appellant was less than overwhelming, we believe that there exists a reasonable possibility that the inadmissible evidence may have affected the jury‘s verdict. The trial court‘s error in permitting the introduction of this evidence, therefore, was harmful. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). We, therefore, must reverse and remand for a new trial on one count of capital sexual battery and two counts of battery.
Because of our disposition of this matter, we do not find it necessary to fully address the appellant‘s contention that the trial court erred in allowing the state to cross-examine a gynecologist, called by the appellant, as to whether the story of one of the victim‘s was believable and whether child abuse victims are generally truthful. Upon remand, however, the trial court is reminded that the testimony of an expert witness cannot be used to vouch for the credibility of another witness. Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986), petition for cert. dismissed, 507 So.2d 588 (Fla. 1987); see also, Holliday v. State, 389 So.2d 679 (Fla. 3d DCA 1980); Lamazares v. Valdez, 353 So.2d 1257 (Fla. 3d DCA 1978).
Reversed and remanded.
SCHEB, A.C.J., and THREADGILL, J., concur.