NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BRANDEN CASS, )
)
Appellant, )
)
v. ) Case No. 2D13-4739
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed March 11, 2016.
Appeal from the Circuit Court for Pasco
County; Mary M. Handsel and
Shawn Crane, Judges.
Howard L. Dimmig, II, Public Defender,
and J. L. Perez, Special Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa,
for Appellee.
NORTHCUTT, Judge.
Branden Cass was convicted of lewd and lascivious battery and lewd and
lascivious molestation. But his trial was tainted when the court allowed the jury to hear
that Cass himself previously had been abused as well as a police detective's opinion
that this made Cass more likely to commit such crimes. Accordingly, we reverse and
remand for a new trial.
Cass, then twenty years old, was arrested based on accusations that he
sexually abused a twelve-year-old girl when he was dating the girl’s older sister and
living with their family. After being informed of his Miranda 1 rights, in a recorded
interview he spoke to a detective about how much he partied, explaining that he did so
because of stress. He said that while he lived with the family, he was made responsible
for paying most of the bills, including food, medical expenses, and school supplies.
Cass also said that he partied so much because of things that had
happened to him in the past. He told the detective that he had been molested by
babysitters and had been raped when he was young. The detective responded that
such abuse had a serious effect, especially if the victim did not receive counseling.
When Cass apparently indicated that he did not get counseling, the detective told him
"that actually explains a lot . . . people who . . . who have been exposed to something
when they were younger have a more likely chance of doing something similar down the
road because of the fact you were a victim at one time. . . . It makes you more . . . more
susceptible."
Cass filed a motion in limine to exclude the detective's statement that
Cass was more likely to commit the charged offenses because he had been sexually
abused as a child and had not received counseling. Cass sought to redact the
recording of the interview to omit the discussion of his prior sexual abuse and the
detective's opinion about its effect. The trial court denied the motion. We conclude that
1Miranda v. Arizona, 384 U.S. 436 (1966).
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the detective was not qualified to offer this opinion and that it was inadmissible in any
event.
An expert may offer an opinion when qualified "by knowledge, skill,
experience, training, or education." § 90.702, Fla. Stat. (2012). But the State presented
no evidence to qualify the detective as an expert who could opine on the likelihood that
previously abused individuals would in turn commit abuse. Cf. Hadden v. State, 690
So. 2d 573 (Fla. 1997) (requiring scientific basis before allowing expert testimony about
symptoms typically associated with sexually abused children).
Moreover, the only purpose of this evidence was to show that Cass had a
propensity to engage in the alleged behaviors that gave rise to the charges against him.
This was wholly improper. See § 90.404(2)(a) (excluding evidence of other acts when
offered solely to prove bad character or propensity). Improper propensity evidence is
presumptively harmful. Abbott v. State, 622 So. 2d 601, 602 (Fla. 2d DCA 1993)
(reversing based on improper propensity evidence despite trial court's curative
instruction); see also Foreman v. State, 965 So. 2d 1171, 1175-76 (Fla. 2d DCA 2007)
(stating that inherent prejudice comes from the risk that the jury will convict based on
the evidence of a defendant's propensity rather than relying on proof of the crime
charged).
The State correctly has not argued that this error was harmless. Although
Cass made incriminating admissions when the officers interviewed him, he recanted his
statements at trial, attributing them to his physical and mental fatigue and to his feeling
that the interviewers were pressuring him to tell them what they wanted to hear. There
was no physical evidence to support the allegations; semen and DNA were found on the
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mattress, but Cass was excluded as the donor. The alleged victim positively identified
Cass as the perpetrator, but she said that she never actually saw him or heard him
because she never opened her eyes during five encounters, and he never said
anything. She testified that the five incidents occurred at night in her bed, which she
shared with her younger sister. The victim testified that her sister was present for four
of the five incidents, yet it was agreed that the sister never saw anything happen. Other
males—the boyfriend of the victim's mother and his two teenaged sons—were in and
out of the house during the pertinent time period.
An error is harmless only if "there is no reasonable possibility that the error
contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986); see
also Castro v. State, 547 So. 2d 111, 115 (Fla. 1989) ("[I]t is not enough to show that
the evidence against a defendant was overwhelming. Error is harmless only if it can be
said beyond a reasonable doubt that the verdict could not have been affected by the
error." (internal quotation marks omitted)). We cannot say that the verdict in this case
was not affected by the erroneous admission of the improper propensity evidence.
Reversed and remanded for a new trial.
CRENSHAW, J., Concurs.
ALTENBERND, J., Dissents with opinion.
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ALTENBERND, Judge, Dissenting.
I cannot hold that the trial court abused its discretion in deciding not to
excise this small portion of Mr. Cass's recorded statement. It is important to understand
that the detective was not testifying under oath to the jury. He was questioning a
suspect using minimizing techniques to encourage the suspect to talk. Defense counsel
thoroughly cross-examined the detective bringing out that the detective had training in
interrogation, that he sometimes tricked and deceived people during interrogation, and
that he used minimizing techniques during this interview to overcome the suspect's
reluctance to admit criminal behavior.
As is often the case, this interview began with Mr. Cass denying that he
did anything wrong. The detective slowly peeled the onion, and Mr. Cass finally made
multiple incriminating statements about sexual conduct with the young victim. The
interview continued after Mr. Cass was formally arrested and had received his Miranda
warnings. During the continuation of the interview, the detective asked him if he had
had "other problems" because of his excessive partying. In the transcript in the record,
the answer is "inaudible." 2 Thereafter, the transcript reflected the following:
[DETECTIVE]: Because I know that—I know that when
you're molested, that it—a lot of times it—it affects a lot of
stuff in your life and makes things, especially if you never
dealt with it, you never went to counseling or anything for it?
CASS: (Inaudible.)
[DETECTIVE]: Well, that—that actually explains a lot,
believe it or not. I can understand. This is the thing. It's—
I'm sure you saw the infomercials and stuff, people who—
who have been exposed to something when they're younger
2The jury listened to the recording of the interview, which is not in our
record.
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have a more likely chance of doing something similar down
the road, because, in fact, you were a victim at one time.
You know what I'm saying? It makes you more—more
susceptible. And then the drinking and the alcohol, the
drinking and the drugs, they just knock down the common
sense factor or the—the self-control factor that would
normally keep you from something like this. You know what
I mean? Like you, you normally, stone sober, would you
have ever done this?
CASS: No.
[DETECTIVE]: But when you're drunk and messed up and
you're not, you know, you're not a hundred percent in your
right mind, I mean. I can—here's the thing. I can—that is
a—that's a reason that this happened, but it's—you
understand that it's not an excuse to do it. It's not—
CASS: (Inaudible.)
[DETECTIVE]: (Inaudible) but that actually makes sense.
You know what I mean? I can understand being a victim of
something and making a mistake yourself. So all BS aside,
no. I mean, it's—it's not going to make anything worse on
you or anything will make anything better and if she tells me
that this happened five times, is that right, about?
CASS: The sex? I just remember the once.
[DETECTIVE]: No, not the—not the sex. She never said the
sex happened five times, but that the—but the progressive
thing that she described, like what I told you, the—at first it
was just touching, that stuff –
CASS: (Inaudible.)
[DETECTIVE]: Is that accurate?
CASS: Pretty much.
[DETECTIVE]: Yeah.
CASS: (Inaudible) all blurry (inaudible).
[DETECTIVE]: All right. But you do remember on other
occasions going in and touching her?
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CASS: Yeah. A couple times.
[DETECTIVE]: And then just the sex was because you got
carried away?
CASS: Yes. I remember one point kind of blacking out.
Given that the detective's psychological opinions were clearly designed to
bring out this confession, it would be difficult to edit the transcript of the questioning that
prompted the answer. Perhaps the trial court could have given stronger instructions
that the detective's statements and questions during the interview were not the
evidentiary portion of the interview, but I cannot say that no reasonable judge would
have allowed this problem to be handled by cross-examination, which is exactly what
occurred in this case.
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