Timothy HITCHCOCK, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fourth District.
*573 Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Carol Cobourn Asbury, Asst. Atty. Gen., Wеst Palm Beach, for appellee.
PER CURIAM.
Appellant, Timothy Hitchcock, defendant below, appeals his judgment and sentence for six counts of indecent assault оn his minor stepson (the victim). We reverse Appellant's conviction because the trial court erred in admitting testimony bolstering the victim's credibility where credibility issues permeаted the trial.
The objectionable testimony came from Sherri Bourg, a prison psychologist whom the trial court qualified as an expert in forensic psychology and сhild sexual abuse. Bourg witnessed the victim's medical exam and interviewed him with a police detective. Over defense counsel's hearsay objection, Bourg explained her understanding of the nature of the charges against Appellant:
In this case, I spoke to the mother and the child who reported to me that his stepfather had been molesting him and that the molestation involved the stepfather touching and rubbing his penis and sucking on his penis and also masturbating in front of the stepchild. So, the stepfather was masturbating in front of the child.
Appellant correctly argues that the trial court erred in overruling his objection to this testimony because it was inadmissible hearsay that improperly bolstered the victim's credibility. Given the significance placed on the victim's credibility, this error cannot be deemed harmless. State v. DiGuilio,
Section 90.801, Florida Statutes (1993), defines hearsay as "а statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The State argues that Bourg did not testify to any statement made by the victim and that the testimony was offered to show how Bourg determined what the allegations were and not to show the truth of the mаtter asserted. The State points out that Bourg did not comment on whether she believed that the allegations were true. In light of Florida *574 case law explained below, this argument is not persuasive.
In Escoto v. State,
The facts of the present case parallel the facts of Escoto. Bourg's testimony was hearsay that the trial court should have ruled inаdmissible. In the present case, Appellant contended that the victim fabricated the allegations against him so that Appellant would not continue to punish him for his rebellious behavior. Determining the victim's credibility was one of the jury's crucial functions. Because Bourg may have bolstered the victim's testimony, we cannot say beyond a reasоnable doubt that the erroneous admission of Bourg's testimony did not contribute to the verdict. DiGuilio,
In addition to Bourg's testimony improрerly repeating the victim's specific allegations of sexual abuse, the following testimony should not have been admitted:
STATE: When the police question a witness such as Detective Niloff was doing, have you ever observed Detective Niloff ask a question that's not completely accurate as a test question for the child?
BOURG: Yes. I'm not surе if he's using [it] as a test question for the child, but sometimes... . Sometimes when anyone is conducting a child sexual abuse interview, you might be working on an assumption and you think you're going in the right direction. So, you ask a question and the child that's not the direction the child is going in... .
STATE: Can you give me a specific example of how the child changes the direction?
BOURG: Sure. If the Whеn the detective would ask did he actually take your penis out of your pants, the child says no, he put his hands inside my pants. That would be an example of the child correсting an assumption that the detective was working on.
STATE: Okay. Were there any references as to whether the child was wearing zippered pants or whether the child was wearing shorts at the time the defendant's hands would go in the shorts?
BOURG: Yes, again the child corrected Detective Niloff and Detective Niloff asked about zippered pants оr how did the pants come down, and actually, the child said, no, the pants didn't actually ...
[Hearsay objection was sustained.]
STATE: What does this validation or correction process indicate to you as a fоrensic psychologist? [].
BOURG: Well, it suggests some amount of assertiveness on the child's part that the child will correct an authority figure and police officers, often to childrеn, are authority figures, that they'll correct them to make sure the detective understands exactly what happened in this case.
*575 STATE: Did you observe that conduct by [the victim in this сase]?
BOURG: Yes, I did.
The State correctly points out that this issue has not been preserved for appeal, which precludes us from reversing on this point. Because defense counsel did not argue at trial that Bourg's testimony validated the victim's charges of sexual abuse and improperly bolstered the victim's testimony, Appellant cannot makе that argument on appeal. Glendening v. State,
In the event that this case is retried, we feel compelled to point out the trial court's error in allowing Bourg's bolstering testimony. A trial court hаs broad discretion in determining the range of subjects on which an expert witness may testify. Glendening,
In Price, an expert witness testified that the child victim had undergone more than 20 one hour sessions and that children lose interest earliеr on if they are lying. The Price court held that this testimony, when examined in its totality, constituted an impermissible vouching for the victim's credibility. Id. Likewise, Bourg's comments that the victim's interview reflectеd an assertiveness and a desire to communicate exactly what happened gave the impression that Bourg thought the victim was telling the truth. Accordingly, the testimony was improper.
In light of the fact that Appellant's trial revolved around credibility issues, the judge's error in allowing Bourg's testimony was not harmless. The State's closing argument reflects the еmphasis placed on Bourg's testimony: "Why is that crucial? Why is that important? It shows the 12 year old wanted to be factually, truthfully [sic]... . That's critical because the Defense wants you to believe that somehow this kid is lying and made all this up." Accordingly, if the case is retried, the trial court should not admit Bourg's testimony validating the victim's criminal charges against Appellаnt.
In conclusion, we reverse on the ground that the trial court erred in admitting Bourg's testimony repeating the victim's charges of sexual abuse. Because credibility issues permeated the trial, we conclude this testimony prejudiced Appellant by improperly bolstering the victim's credibility.
REVERSED AND REMANDED.
GUNTHER, PARIENTE and STEVENSON, JJ., concur.
