PINNELL v. STATE (2003)

Harry William Pinnell appeals from his conviction and sentence for two counts of lewd and lascivious assault.   We affirm.

Pinnell asserts that the trial court reversibly erred by determining that a PACE ¹ social worker could not be questioned about a conversation with the victim as the conversation fell within the sexual assault counselor-victim privilege created by section 90.5035, Florida Statutes.   That section provides, in part:

“(1) For purposes of this section:

(a) A ‘rape crisis center’ is any public or private agency that offers assistance to victims of sexual assault or sexual battery and their families.

(b) A ‘sexual assault counselor’ is any employee of a rape crisis center whose primary purpose is the rendering of advice, counseling, or assistance to victims of sexual assault or sexual battery.

․

(2) A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a sexual assault counselor or any record made in the course of advising, counseling, or assisting the victim․ This privilege includes any advice given by the sexual assault counselor in the course of that relationship.”

§ 90.5035(1)(a),(b),(2), Fla. Stat. (1999).

The trial court found that PACE met the statutory definition of a “rape crisis center” and that the PACE social worker could be considered a “sexual assault counselor” as statutorily defined.   Consequently, the trial court held that the statutory sexual assault counselor-victim privilege applies.   After a careful examination of the record, we cannot say that, under the circumstances presented, we disagree with the trial court's factual findings regarding either the PACE Center for Girls, Inc. or its social worker.²

Affirmed.

As an additional basis for affirmance, it should be emphasized that, not only has the defendant not established the likelihood, or even the possibility, that the victim's statements to the counselor were in any way favorable to him, the circumstances strongly suggest directly to the contrary.   Thus, even if the conversation were not privileged, the appellant's argument should be rejected on the ground that he has failed in his obligation to demonstrate harmful error.   Cf. State v. Famiglietti, 817 So.2d 901, 909 (Fla. 3d DCA 2002) (Schwartz, C.J., specially concurring in part, dissenting in part), review granted, 826 So.2d 991 (Fla.2002), review dismissed, 838 So.2d 528 (Fla.2003).

FOOTNOTES

1.   PACE Center for Girls, Inc. is a gender-responsive, school-based program, established as an alternative to incarceration or institutionalization of at-risk adolescent girls in Florida.

2.   We find Pinnell's other complaint to be without merit.

FLETCHER, Judge.

SHEVIN, J., concurs.