MICKY DALE DAVIS, APPELLANT,
v.
STATE OF FLORIDA APPELLEE
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Micky Davis was convicted of attempted lewd and lascivious assault and lewd and lascivious assault upon his fourteen-year-old daughter based on her testimony. The appellate court reversed and remanded for a new trial, finding that the trial court improperly restricted cross-examination regarding the daughter's motive to fabricate and erroneously admitted a psychologist's testimony that invaded the jury's province of assessing credibility.
The trial court improperly restricted cross-examination of the daughter regarding her motivation to falsely accuse her father, which was critical given her credibility as the sole material witness. The psychologist's testimony that the daughter was "being frank" according to his validity scale invaded the province of the jury and should have been excluded. Attempted lewd and lascivious assault is a valid crime under Florida law, though the trial court erred in classifying it as a second degree rather than third degree felony.
[1] Restricting cross-examination regarding a witness's potential motivation to retaliate against a defendant is an abuse of discretion when the witness's credibility is cent…
[2] A clinical psychologist's testimony that a child victim was 'being frank' based on a validity scale improperly invades the province of the jury.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court improperly restricted cross-examination of the daughter in regard to an incident resulting in a burglary complaint being filed against the daughter's boyfriend by Freddie Davis during the month preceding the alleged sexual assaults. This evidence was proffered on "the issue of motivation for her (the daughter) to strike back at her father and her parents, generally, because of their motivation to eliminate the boyfriend as a friend."”
The court found that evidence of the daughter's motivation to fabricate was admissible and the trial court's restriction on cross-examination regarding this issue was reversible error.
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Join FLexlaw to unlock all legal intelligenceDavis was charged with attempted lewd and lascivious assault and lewd and lascivious assault upon his fourteen-year-old daughter based on two separate…
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COBB, Judge.
The appellant, Micky Davis, was convicted of attempted lewd and lascivious assault upon a child under Count I of an information and lewd and lascivious assault upon a child under Count III based upon two separate alleged incidents involving Davis’s fourteen year old daughter. The state’s case was based upon the direct testimony of the daughter with supportive opinion testimony by a clinical psychologist, Carl Nickeson. The defense presented testimony from the mother, Freddie, who testified to various behavioral problems of her daughter. These included the daughter’s relationship with a boyfriend, which sparked several conflicts between the daughter and her parents, and, according to the mother, threats by the daughter to “nail him (Micky Davis) to the wall.” Micky Davis himself testified to the conflicts between parents and daughter, and denied the latter’s accusations of fondling and attempted intercourse.
We agree with the appellant’s first contention on appeal: the trial court improperly restricted cross-examination of the daughter in regard to an incident resulting in a burglary complaint being filed against the daughter’s boyfriend by Freddie Davis during the month preceding the alleged sexual assaults. This evidence was proffered on “the issue of motivation for her (the daughter) to strike back at her father and her parents, generally, because of their motivation to eliminate the boyfriend as a friend.” The evidence was admissible, and, considering the critical importance of the daughter’s credibility in this case, we cannot conclude, beyond a reasonable doubt, that this error was harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Hannah v. State, 432 So. 2d 631 (Fla. 3d DCA 1983).
We also conclude that the trial court erred in denying the defense motion in limine to exclude the testimony of Nicke-son. Objection to his testimony was renewed at trial. In testifying that the daughter was “being frank” according to his validity scale in respect to having been the victim of child abuse, Nickeson was invading the province of the jury and his “validating” testimony should have been excluded. See Norris v. State, 525 So. 2d 998 (Fla. 5th DCA 1988); Norris v. State, 503 So. 2d 911 (Fla. 5th DCA 1987); Youngblood v. State, 492 So. 2d 793 (Fla. 1st DCA 1986), review denied, 503 So. 2d 328 (Fla.1987). But see, Brown v. State, 523 So. 2d 729 (Fla. 1st DCA 1988); Ward v. State, 519 So. 2d 1082 (Fla. 1st DCA 1988).
We must also consider whether or not there exists any such offense as attempted lewd and lascivious assault pursuant to sections 800.04 and 777.04, Florida Statutes (1985). The trial jury was furnished a verdict form for such an offense, at the defendant’s request, as a lesser included offense of Count I of the information, which originally charged attempted sexual intercourse with a child contrary to section 794.-041, Florida Statutes (1985). The appellant now contends that he was convicted of a wholly nonexistent crime, and, therefore, is not foreclosed from relief by his faitee to object below or even by his request for that verdict form. Cf. Ray v. State, 403 So. 2d 956 (Fla.1981).
No case has held that attempted lewd and lascivious assault does not constitute a crime. In fact, the defendant was convicted of such an offense in Johnson v. State, 292 So. 2d 426 (Fla. 2d DCA 1974). Additionally, attempt is listed as a Category II lesser offense of lewd and lascivious assault in the Schedule of Lesser Included Offenses contained in The Florida Standard Jury Instructions in Criminal Cases. We conclude that Davis was not convicted of an nonexistent crime and that he cannot complain that his conviction under Count I was for a lesser crime not included in the original charge. See Ray. We do note, however, that the trial court erroneously classified attempted lewd and lascivious assault as a second degree rather than a third degree felony, a point conceded by the state. We find no merit, however, in the appellant’s argument in regard to prosecutorial misconduct.
REVERSED AND REMANDED FOR NEW TRIAL on Count I (attempted lewd and lascivious assault upon a child) and on Count III (lewd and lascivious assault upon a child) of the information.
ORFINGER and DANIEL, JJ., concur.
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Citator
Cited By (12 total)
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State v. Townsend, 635 So. 2d 949 (Fla. 1994)…er as to the truthfulness or credibility of a witness’s statements in general. Tingle v. State, 536 So. 2d 202 (Fla.1988); Weatherford v. State, 561 So. 2d 629 (Fla. 1st DCA 1990); Fuller v. State, 540 So. 2d 182 (Fla. 5th DCA 1989); Davis v. State, 527 So. 2d 962 (Fla. 5th DCA 1988); Ward v. State, 519 So. 2d 1082 (Fla. 1st DCA 1988); Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986), review dismissed, 507 So. 2d 588 (Fla.1987). The psychologist should not have been allowed to testify regarding the credibi…
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Rondy Jones v. State, 678 So. 2d 890 (Fla. 4th DCA 1996)…In exploring the types of wrongful motives which influence witnesses, Florida courts have recognized that a criminal defendant’s dealings with or relationship to a third party could bias a witness’ testimony against him. For example, Davis v. State, 527 So. 2d 962, 963 (Fla. 5th DCA 1988), involved a defendant prosecuted for molesting his daughter. The trial court restricted cross examination of the daughter about a burglary complaint filed against the daughter’s boyfriend. The fifth district reversed, holdin…
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Fuller v. State, 540 So. 2d 182 (Fla. 5th DCA 1989)…xpert witness may not directly vouch for the truthfulness of a witness. Tingle v. State, 536 So. 2d 202 (Fla.1988) (error to permit counselor and social worker to testify they believed the alleged child victim was telling the truth); Davis v. State, 527 So. 2d 962 (Fla. 5th DCA 1988) (reversible error to allow psychologist to testify that alleged child victim was “being frank”); Norris v. State, 525 So. 2d 998 (Fla. 5th DCA 1988) (reversing sexual battery conviction on ineffective assistance of counsel ground…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Ward v. State, 519 So. 2d 1082 (Fla. 1st DCA 1988)
- Hannah v. State, 432 So. 2d 631 (Fla. 3d DCA 1983)
- Norris v. State, 525 So. 2d 998 (Fla. 5th DCA 1988)
- Norris v. State, 503 So. 2d 911 (Fla. 5th DCA 1987)
- Johnson v. State, 292 So. 2d 426 (Fla. 2d DCA 1974)
- Brown v. State, 523 So. 2d 729 (Fla. 1st DCA 1988)
- Youngblood v. State, 492 So. 2d 793 (Fla. 1st DCA 1986)