Stone v. StateStone v. State
Richard Sanders and Robert W. Pope of Pope & Henninger, St. Petersburg, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
ALTENBERND, Judge.
The defendant raises eight issuеs on appeal from his conviction for sexual battery on a child less than twelve years of age. We affirm the conviction, and while we reject each of the defеndant‘s points on appeal, we address three of the issues he raises.
Mr. Stone was charged by indictment with one count of capital sexual battery. The indictment specifiсally alleged that he had placed either his penis or his mouth upon the vagina of the victim. This incident occurred sometime between November of 1984 and November of 1985. At the timе of the incident, the six-year-old victim‘s parents were divorced. She lived with her mother, but would occasionally spend the night at her father‘s home. The incident occurred while Mr. Stone was baby-sitting the victim at the father‘s home. Mr. Stone was the nineteen-year-old brother of the father‘s girlfriend.
The young child also repeatedly testified that the defendant had “licked” her private. This occurred at night. She said the defendant placed a washcloth on her private before he licked it.
The first рerson to whom the victim revealed this incident was a girlfriend. The friend was eleven years old at the time of trial. This friend testified that she was staying at the victim‘s home one night when the victim told hеr that Mr. Stone had previously taken off her clothes and his clothes, and that he had gotten on top of her and placed his mouth on her private parts. The friend encourаged the victim to tell her mother.
The mother testified that her daughter and the friend had approached her late that evening. Her daughter told her about the incident. Her daughter also told her that the defendant had put his “private between her legs,” and that she had gotten wet between her legs.
Mr. Stone testified at trial. He admitted that he had baby-sat for the victim оn approximately three occasions. He denied, however, that he had ever engaged in any form of sexual conduct with her, and denied that he had ever used a washсloth on her for any purpose.
First, the defendant argues that he was entitled to a judgment of acquittal because the evidence did not establish a sexual battery. In order to establish a sexual battery, the state is not required to prove a rape or penetration. “Sexual battery” includes “oral ... union with the sexual organ of another....”
We are concerned by the fact that the victim could not precisely define the area of her body which she understood to be her private. Her shyness and embаrrassment on the witness stand were completely natural, but they are not a substitute for direct evidence. We find, however, that the jury could reasonably infer from the evidence that the defendant made contact between his mouth and the sexual organ of the victim.
We are not allowed to retry a case or reweigh the conflicting evidence submittеd to the jury. We must limit our concern to whether, after all conflicts in the evidence and all reasonable inferences derived therefrom have been resolved in favor of the verdict, there is substantial, competent evidence to support the verdict and judgment. Tibbs v. State, 397 So.2d 1120 (Fla. 1981), aff‘d, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
Bradford v. State, 460 So.2d 926, 930 (Fla. 2d DCA 1984), review denied, 467 So.2d 999 (Fla. 1985).
In light of the imprecision in the young victim‘s testimony, it is possible that the evidence establishing uniоn is partially circumstantial and hinges upon the evidence concerning the wash cloth and the mother‘s definition. Even if this is the case, it was the function of the jury and not this appellаte court to determine whether the evidence was inconsistent with any reasonable hypothesis of innocence. Heiney v. State, 447 So.2d 210 (Fla. 1984), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984). See Toole v. State, 472 So.2d 1174 (Fla. 1985); Tsavaris v. State, 414 So.2d 1087 (Fla. 2d DCA 1982), review denied, 424 So.2d 763 (1983). See also Nickels v. State, 90 Fla. 659, 106 So. 479 (1925). Although the weight of the evidence in this case could bе far greater, we do not believe it is incumbent upon parents to teach their toddlers the sexual vocabulary of Gray‘s Anatomy in order to protect them from the lifelong psycholоgical damage of sexual battery.
Second, the defendant argues that the trial court erred in admitting the testimony of a detective without first holding a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla. 1971). We find that an adequate Richardson hearing occurred and that the trial court did not err in admitting the limited testimony.
The detective worked for the Pinellas Park Police Department and specialized in crimes against children. He hаd not investigated the case against Mr. Stone. He had, however, investigated a separate case in which the victim‘s friend was also a witness. During cross-examination of the friend, defense counsel suggested that she was confusing the two cases. The state called the detective in its main case to refute this argument. The detective testified that the cаses were factually different. The state had not listed the detective on its witness list. The defense, however, had listed the detective on its witness list.
When the state first attempted to call the detective, defense counsel objected. The trial court recognized the potential problem and, thus, conducted a hearing outside the presence of the jury. As a result of the hearing, the trial court authorized defense counsel to depose the detective during the lunch break. Following the lunch break, the trial court required the state to proffer the detective‘s testimony before presenting it to the jury.
The state has an obligation to disclose a rebuttal witness to the defendant if the witness‘s testimony is reasonably anticipated. Lucas v. State, 376 So.2d 1149 (Fla. 1979). This is true even though the witness is also listed by the defendant. See Keen v. State, 456 So.2d 571 (Fla. 2d DCA 1984). The failure to disclose such a witness, however, does not automatically require the exclusion of thе witness‘s testimony. Instead, a Richardson hearing is required. Lucas, 376 So.2d at 1151. While the trial court never expressly found the failure to list the rebuttal witness to be a violation of
A Richardson hearing requires “an adequate inquiry into all the surrounding circumstances.” Richardson, 246 So.2d at 775. The trial court should consider at least:
(1) Whether the state‘s violation was inadvertent or willful;
(2) Whether the violation was trivial or substantial; and
(3) What effect, if any, the violation had upon the ability of the defendant to properly prepare for trial.
While we find that the trial court made an adequate inquiry, it would have been helpful if the trial court had expressly made findings on the record concerning the Richardson issues. The transcript of the hearing indicates that the state‘s violation was inadvertent. The trial court regarded the violation as insubstantial because of the limited scope of the testimony. The defendant did not suggest that this testimony had any significant effect upon his ability to properly preparе for trial when he was fully aware of the witness and was given the opportunity to depose the witness. See Sireci v. State, 399 So.2d 964 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); Loren v. State, 518 So.2d 342 (Fla. 1st DCA 1987).
Although we recognize that the failure to conduct a sufficient Richardson hearing is per sе reversible, we are satisfied from a review of the record as a whole that:
[T]he trial court made an adequate inquiry into the surrounding facts and circumstances of the alleged discovery violations to support its conclusions and satisfy the requirements of Richardson and its progeny.
State v. Hall, 509 So.2d 1093, 1097 (Fla. 1987).
Finally, Mr. Stone argues that the trial court erred in admitting the hearsay statements of the victim to her mоther and to her friend without making the specific findings of fact required by
In this case, the trial court conducted the hearing оutside the presence of the jury. The trial court heard the proffered testimony of both witnesses. In ruling the testimony admissible, the trial court stated its observations concerning the reliability of the testimony. Although the trial court did not make specific findings of fact as to each factor which the statute provides the trial court “may consider,” we believe the findings аre sufficient to provide a basis for the ruling. See Glendening v. State, 503 So.2d 335 (Fla. 2d DCA 1987), aff‘d, 536 So.2d 212 (Fla. 1988). Of equal importance, defense counsel did not object to the sufficiency of the trial court‘s findings. Except in cases of fundamental error, this court will not consider an issue unless it was specifically raised as the legal basis for the objection in the trial court. Washington v. State, 510 So.2d 355 (Fla. 2d DCA 1987). This is not an issue involving fundamental error. Ashford v. State, 274 So.2d 517 (Fla. 1973).
Affirmed.
SCHEB, A.C.J., and DANAHY, J., concur.