Bisbee v. State
Bisbee v. State
Opinion of the Court
Appellant, Willie Bisbee, appeals his conviction and sentence for sexual battery upon a person less than 12 years of age. Appellant contends that the trial court improperly excluded evidence of a prior molestation of the child victim, that the trial court abused its discretion when it ruled simultaneously that appellant could introduce the victim’s taped interview as impeachment evidence and the State could introduce (in rebuttal) the victim’s prior consistent statements, and that appellant was denied a fair trial due to prosecutorial misconduct. Finding reversible error on the first issue, we reverse the conviction.
Appellant was charged with one count of sexual battery upon a person less than 12 years of age. The alleged victim, R.B., is appellant’s daughter. At the time of the trial R.B. was 9 years old; she was 7 years old at the time of the alleged incident. She testified that she lived in Tallahassee and stayed with appellant on weekends. Because appellant did not have a home, they would stay in different homes or sleep in his car. According to R.B., one Friday night after church, appellant took her to his cousin’s trailer, but no one was home, so they waited in appellant’s car; while she slept on the front seat, she felt appellant remove her clothes, pick her up, and put his “private part” in her “private part.” She testified that she pretended to be asleep during the alleged contact. R.B.’s testimony was the only evidence of the alleged incident; there was no corroborating physical evidence. Appellant testified at trial and denied the allegations.
In a deposition approximately two months before the trial, R.B. completely recanted, stating that appellant had not molested her. When asked about her recanting (deposition) testimony at trial, R.B. explained that her deposition testimony was a lie.
The defense sought to introduce evidence of a prior sexual molestation committed upon R.B. (two years before the alleged incident herein) by a third party. Appellant argued that the evidence of the prior sexual molestation would show how and why a 7-year-old would have knowledge of sexual molestation, and specifically, that the evidence was relevant to explain the drawings
Appellant argues on appeal that the trial court erred in excluding the evidence because it was relevant to the issue of R.B.’s credibility at trial and that the exclusion of the evidence denied appellant his constitutional right to a full and fair trial. The State contends that the trial court properly excluded evidence of the victim’s prior molestation because such evidence was irrelevant and should never be used to rebut the sexual innocence inference, and that there was no logical connection between R.B.’s status as a victim and her capacity to draw the pictures
Because we reverse on the basis of the prior sexual molestation evidence, we do not reach the other issues raised by appellant. Accordingly, we reverse appellant’s conviction and sentence and remand for a new trial.
REVERSED and REMANDED with directions.
. After R.B. reported the incident, the Child Protection Team conducted a "one-strike” interview where she drew three pictures which were introduced at trial without objection. R.B. identified the pictures at trial as the ones she drew and described one of them as being of her “private part,” and the others (both the same) of her "private part” and appellant’s "private part.”
Reference
- Full Case Name
- Willie BISBEE v. STATE of Florida
- Cited By
- 1 case
- Status
- Published