A.M., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A juvenile was adjudicated delinquent for sexual battery and related offenses against his younger sister and niece. The appellate court affirmed the conviction, finding that hearsay testimony from the victims' mother and treating physician was properly admitted and that any error was harmless beyond a reasonable doubt given the strong in-court testimony from the child victims.
The court affirmed the adjudication, finding that the mother's testimony was not hearsay because it was offered to establish when the report was made rather than to prove the truth of the assaults, and that any error in admitting the physician's hearsay statements was harmless beyond a reasonable doubt given the compelling in-court testimony from the victims themselves.
[1] Statements made to a parent or guardian regarding sexual assaults are not offered to prove the truth of the matter asserted, but rather to establish the time when the rep…
[2] Testimony of a medical professional regarding statements made by a victim for the purpose of medical diagnosis or treatment may be admissible under a hearsay exception.
Previewing 2 of 4 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“It is unnecessary to decide the correctness of admitting that part of the physician's hearsay testimony which served only to bolster the victims' competent identification testimony. It can be said beyond a reasonable doubt that the verdict here was not affected by the introduction of the physician's statement.”
Establishes the harmless error standard applied by the court—even if hearsay was improperly admitted, the error did not affect the verdict given the strong in-court testimony from victims.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA.M., a juvenile, sexually abused his ten and eleven-year-old sister and niece on multiple occasions. The victims' mother discovered the abuse after A…
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PER CURIAM.
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 woman who was the mother1 of one girl and the stepmother of the other girl. At the nonjury trial the victims testified that A.M. had sexually abused them, at times in the presence of each other. Their mother testified that on one occasion she saw the defendant coming out of the girls’ bedroom in the middle of the night, and that another time A.M. was discovered, clad only in bikini briefs, asleep between her two daughters in their bed. The woman further testified that the girls told her that A.M. had beaten, threatened, and raped them several times. At that point, the court overruled the defense’s hearsay objection.
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 (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.”2 It is unnecessary to decide the correctness of admitting that part of the physician’s hearsay testimony which served only to bolster the victims’ competent identification testimony. It can be said beyond a reasonable doubt that the verdict here was not affected by the introduction of the physician’s statement. Ciccarelli v. State, 531 So. 2d 129, 132 (Fla.1988).
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 (Fla. 4th DCA 1986); see also Ciccarelli, 531 So. 2d 129; Ingvaldsen v. State, 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.]
BASKIN, Judge
(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 reasonably pertinent to diagnosis or treatment.” “[N]ot only are statements of symptoms admissible under this exception, but statements which describe the inception or cause of injury are also admissible if the statements are reasonably pertinent to diagnosis or treatment.” Danzy v. State, 553 So. 2d 380, 381 (Fla. 1st DCA 1989).
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 (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.
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Reyes v. State, 580 So. 2d 309 (Fla. 3d DCA 1991)…he purpose of and was pertinent to diagnosis or treatment. Consult State v. Ochoa, 576 So. 2d 854 (Fla. 3d DCA 1991); Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990); Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986); see also A.M. v. State, 574 So. 2d 1185, 1186-87 (Fla. 3d DCA 1991) (Baskin, J., specially concurring). . The exception to this rule of inadmissibility, which arises in order to counter a claim of "improper influence, motive, or recent fabrication” against the witness, § 90.801(2)(b), Fl…
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State v. Ochoa, 576 So. 2d 854 (Fla. 3d DCA 1991)…tinent to medical diagnosis or treatment. See United States v. Provost, 875 F. 2d 172, 176-77 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 170, 107 L.Ed.2d 127 (1989); United States v. Renville, 779 F. 2d 430 (8th Cir.1985); see also A.M. v. State, 574 So. 2d 1185 (Fla. 3d DCA 1991). See generally C. Ehrhardt, Florida Evidence § 803.4. . Also within subsection 90.803(4) are statements "made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate…
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Bienvenido Escoto v. State, 624 So. 2d 836 (Fla. 5th DCA 1993)…tat. (1987). However, there was no recent fabrication charge put forward by the defense in this case. We cannot say the error in this case was harmless, since there was only Escoto’s word against the child’s. See T.S. v. State Compare A.M. v. State, 574 So. 2d 1185 (Fla. 3d DCA 1991). REVERSED and REMANDED for new trial. HARRIS, C.J., and PETERSON, J., concur. . § 794.011(2), Fla.Stat. (1989). . Kesler testified as follows: [T]he child did tell me this happened on a number of occasions ... had been taken…
Authorities Cited
- Ciccarelli v. State, 531 So. 2d 129 (Fla. 1988)
- Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986)
- Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990)
- Danzy v. State, 553 So. 2d 380 (Fla. 1st DCA 1989)
- Barnes v. State, 477 So. 2d 6 (Fla. 2d DCA 1985)
- Egil Ingvaldsen v. State, 539 So. 2d 613 (Fla. 4th DCA 1989)