D. Gray Thomas, Wm. J. Sheppard, and Bryan E. DeMaggio of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.
Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, for Appellee.
ON MOTION FOR REHEARING AND CERTIFICATION
We deny Appellant's Motion for Rehearing and Certification. On our own motion, we withdraw our previous opinion and substitute the following in its place.
Ronald Wayne Hendricks, Appellant, appeals his convictions for one count of battery and two counts of sexual battery on a child less than twelve years of age by a person eighteen years of age or older. Appellant raises five issues, three of which merit discussion. First, Appellant argues that the trial court abused its discretion in excluding evidence of his reputation for sexual morality. Second, he argues that the trial court committed per se reversible error by failing to invite objections from defense counsel after announcing its anticipated response to the jury's request to view a portion of the trial transcript. Finally, and relatedly, Appellant argues that the trial court fundamentally erred in denying the jury's request to view a portion of the transcript without advising the jury that it could request a " read-back." For the reasons explained below, we find no
reversible error. Accordingly, we affirm Appellant's convictions and write to explain our reasoning as to the three issues that merit discussion.
The State charged Appellant with four counts of sexual battery on a child less than twelve years of age. The victim was the daughter of Appellant's former girlfriend, in whose home he had lived for several years as part of the family. The State's evidence consisted of the victim's testimony and a recording of an incriminating telephone conversation between Appellant and the victim, who was an adult by the time of trial. In his own defense, Appellant testified that he did not commit the charged offenses. He also introduced testimony from several witnesses who stated that he had a good reputation in the community for truth and veracity. Two of these witnesses, Appellant's former wife and natural daughter, also would have testified that he had a reputation for sexual morality, but the trial court excluded this testimony based on the State's motion in limine.
Appellant's adult daughter testified that she knew " many, many, many people" who knew Appellant and that, when she was a child and Appellant was raising her, she had friends come to the home for sleepovers. She further testified that she knew Appellant's reputation in the community for truth and veracity and that she " [didn't] think it could be better." Similarly, Appellant's former wife testified that she knew " hundreds and hundreds" of people who knew Appellant, that Appellant had " outstanding morals and character," and that he was " highly, highly respected." Outside the jury's presence, Appellant's counsel advised the court that, if given the opportunity, both of these witnesses would testify that they knew Appellant's reputation in the community for being sexually moral and that it was " excellent." The trial court stood by its earlier ruling that this evidence was inadmissible.
After the jury retired to deliberate, it submitted the following written request to the trial court: " May we see the transcript of the testimony of [the victim] regarding the third charge related to the allegation about [Appellant's] placing his penis on [the victim] and ejaculating[?]" In testifying about this offense, the victim stated that this memory bothered her, that it was " probably ... the hardest for [her] to talk about," that it disturbed her, and that it was " horribly vivid in [her] head." The incident occurred on the bed Appellant shared with the victim's mother, and the victim recalled that Appellant first attempted to " force ... his penis into [her] vagina" and that " it wasn't working because [she] was so small." She explained that he then " started rubbing ... his penis against [her] vagina until ... he ejaculated on [her]."
The court considered the jury's request to view this portion of the transcript outside the jury's presence, stating, " I think the answer is no, rely on your memory." There was no response to this statement from the attorneys, although the record shows that counsel for Appellant was present. After the court announced its anticipated response and received no objections, the jury was brought into the courtroom. To the jury, the trial court stated, " Ladies and gentlemen, I have your question about the transcript, and the short answer is, no. You have to rely on your recollection and reach your decision based on that. Thank you." The jury then went back to the deliberation room. Later, it found Appellant guilty as charged of counts one and two, guilty of battery as a lesser-included offense of count three, and not guilty of
count four. After the trial court sentenced Appellant, this appeal followed.
A. Exclusion of Evidence of Appellant's Reputation for Sexual Morality
On appeal, Appellant argues that the exclusion of the evidence of his reputation for sexual morality was error because it was admissible under section 90.404(1)(a) and 90.405, Florida Statutes (2008). The State agrees that sections 90.404(1)(a) might support Appellant's theory of admissibility, but it contends that section 90.405 presents an " insurmountable bar" to the admission of evidence that a person does not have the character trait necessary to commit acts of child molestation, as this trait is not susceptible to proof by reputation evidence. We agree with the State.
A trial court's decision to admit or exclude evidence is typically reviewed for abuse of discretion. McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). However, a trial court's discretion over such decisions is limited by the evidence code and the applicable case law, and its interpretation of those authorities is subject to de novo review. Id.
As a general rule, all relevant evidence is admissible unless it is specifically excluded by a rule of evidence. Bryan v. State, 533 So.2d 744, 746 (Fla.1988). Section 90.404(1)(a), Florida Statutes (2008), provides that " [e]vidence of a person's character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except ... [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait." Under this rule, an accused is permitted to introduce evidence of any character trait pertinent to the charges against him despite the general proscription against character evidence. See id.
Section 90.405, Florida Statutes (2008), dictates the methods of proving character at trial. Under section 90.405(1), any time a person's character is admissible, it may be proven by evidence of that person's reputation. However, proof of a person's character may not be made by specific instances of conduct unless that person's character is " an essential element of a charge, claim, or defense." § 90.405(2). A defendant may not offer proof of his character by admitting evidence of an individual's opinion. See § 90.405 (listing the proper methods of proving character and omitting opinion testimony from the list); Charles W. Ehrhardt, Florida Evidence § 404.5, at 201 (2009 ed.). In contrast, reputation evidence may be admitted because " [w]hen many people in the community discuss and compare an issue, it is felt that the resulting community opinion is trustworthy." Ehrhardt, § 405.1, at 283.
No Florida case has yet held that a person accused of child molestation may or may not introduce evidence of his reputation for sexual morality for the purpose of showing he does not have the character trait necessary for committing acts of child molestation. However, the Fifth District addressed this issue in dicta in Alvelo v. State, 769 So.2d 476, 477 (Fla. 5th DCA 2000). There, the defendant, who was accused of committing lewd acts upon a child, attempted to call " a string of witnesses to testify that [he] had never abused them or anyone they knew." Id. at 477. Although the defendant in Alvelo apparently characterized this evidence as reputation evidence, it was clearly inadmissible as evidence of specific acts of conduct (or lack thereof). See Ehrhardt, § 404.5, at 201-02 n. 7. Regardless, in addressing this issue, the Fifth District observed that, " [u]nlike one's reputation for honesty or
peacefulness, traits that might be noticed by the community, whether one secretly molests children or does not would not be openly exhibited to the community." Alvelo, 769 So.2d at 477. We agree with this statement, which was also embraced by the Third District ...