DAVIDSON v. STATE (2019)

Following a jury trial in 2009, Victor Davidson was found guilty of 205 counts of the originally charged 272 counts of possession of material depicting a sexual performance of a child. This court per curiam affirmed his conviction and seventy-five-year prison sentence. Davidson v. State, 75 So.3d 747 (Fla. 5th DCA 2011). We denied his 2014 petition for habeas corpus asserting ineffective assistance of appellate counsel. Through counsel, he now appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 postconviction motion in which he makes numerous claims that he was prejudiced by allegedly ineffective assistance of trial counsel. We reverse in part the order summarily denying Appellant's rule 3.850 motion and remand for an evidentiary hearing with regard to only the claims based on: (1) counsel's failure to call “Mitch” as a fact witness at trial; (2) counsel's failure to call a cybercrimes expert to testify at trial; and (3) cumulative error regarding the previously listed two claims. We affirm the summary denial of all other claims without discussion as they are meritless.

Appellant first asserts that his trial counsel was ineffective for failing to call several fact witnesses.¹ Appellant cannot show that he was prejudiced by trial counsel's failure to call two teenage sisters whose complaints led to the police investigation of his computers, as their testimony would have referred only to initial charges of lewd and lascivious molestation that were dropped. Likewise, the testimony of certain friends or relatives of the sisters and Sergeant Gayhart could only have shed light on the credibility of the sisters; however, the sisters' credibility had no bearing on whether Appellant possessed illegal child pornography. Thus, the postconviction court properly summarily denied ground one as to those five witnesses.

However, the documents attached to the order of summary denial do not conclusively refute the claim that Mitch, the boyfriend of the fifteen-year-old sister, should have been called. Appellant asserts that Mitch would have testified that Mitch's actions led to unintentional downloading of the child pornography onto Appellant's computer. Appellant claims Mitch was available to testify at trial, but he did not supply Mitch's last name in his original motion and failed to provide the last name when given an opportunity to amend for that purpose. However, given Mitch's supposed relationship to one of the sisters, it should be possible to locate him if he exists. Given that it is Appellant's burden to prove ineffective assistance of counsel, the burden also falls on him to sufficiently identify any uncalled witness so that the court can properly consider what his testimony might have been, his availability, and any reasons that trial counsel chose not to call him. Accordingly, the postconviction court shall conduct an evidentiary hearing concerning the failure of counsel to call fact witnesses to testify with regard to Mitch only.

Next, Appellant claims that his counsel was ineffective for failing to call a generically described cybercrimes computer expert who Appellant alleges would have testified that the child pornography was inadvertently downloaded onto his computer due to malware, which if proven would tend to negate the required “knowledge” element of Appellant's possession of these illegal images. A claim of ineffective assistance of counsel based on counsel's failure to call an expert witness “need not, in every case, name a specific expert and attest that the specific expert would have been available to testify.” State v. Lucas, 183 So.3d 1027, 1034 (Fla. 2016). Thus, because the documents attached to the order summarily denying this claim do not conclusively refute Appellant's claim, an evidentiary hearing must be conducted.²

Last, Appellant asserts a claim of cumulative error. Because we are reversing and remanding for an evidentiary hearing as to the two claims discussed above, we likewise reverse the summary denial of the cumulative error claim for further consideration. See Batista-Irizarry v. State, 266 So.3d 254, 257–58 (Fla. 5th DCA 2019).

As to all other grounds, sub-grounds, claims, and sub-claims, we affirm the postconviction court's summary denial of Appellant's rule 3.850 motion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.

FOOTNOTES

1.   In his motion, Appellant named additional fact witnesses whose testimony he claims should have been presented, but by failing to present any arguments on appeal, he abandoned his claims as to K., Z., D., and C. See Ward v. State, 19 So.3d 1060, 1060 (Fla. 5th DCA 2009).

2.   Appellant's claims that his counsel was ineffective for failing to call a medical expert and a digital images expert are considered waived as he fails to identify what their testimony would have been, thus failing to satisfy Nelson v. State, 875 So.2d 579 (Fla. 2004). See Ward, 19 So. 3d at 1060.

EDWARDS, J.

EVANDER, C.J., and ORFINGER, J., concur.