Flanagan v. State (586 So. 2d 1085, 1991)

MINER, Judge.

Raising several issues, appellant, Dennis Flanagan, seeks review of his conviction and life sentence for sexually battering his mentally retarded 9 year old daughter. Specifically, he asserts: 1) the trial court erred in admitting a physician’s testimony as to the identity of the child’s sexual abuser pursuant to the medical diagnosis/treatment exception to the hearsay rule; 2) the trial court erred in allowing the jury to view videotaped testimony of the victim during its deliberations; 3) the trial court erred in admitting expert testimony regarding general characteristics of child sex abuse offenders and the home environments in which child sexual abuse frequently occurs; 4) the trial court erred in admitting similar fact evidence relating to a sexual act appellant committed on another child; and 5) the trial court erred in denying appellant’s motion for a mistrial based upon improper prosecutorial comment and based upon certain testimony of a separately charged individual. For the reasons which follow, we affirm Flanagan’s conviction and sentence.

The charges on which Flanagan was tried stemmed from incidents which, according to a state witness, occurred over a period of a year or more. The witness, Brenda Hartley Harrison, appellant’s erstwhile live-in girlfriend, testified that she met appellant in 1983 shortly before Christmas at a flea market in Albany, Georgia. At the time, she was 15 years old and he was 30. In January of 1984, she ran away with appellant, a married truck driver, and travelled to South Florida with side trips to Mississippi and Alabama. After about two months, she returned to her Albany home. Within a day or two of her return, appellant went to Albany to get her and the two of them returned to Wakulla County, Florida, where they moved into a home on his father’s property where appellant’s then wife, Peggy, was living. This housekeeping arrangement was apparently unacceptable to Peggy and she moved out after a day or two. Shortly thereafter, Flanagan and Brenda moved out of the home and into an older model Dodge van until a more suitable living place could be found.

By putting two small trailers together and building on, appellant and Brenda solved their housing problem. In June of 1985, Brenda, at age 16, gave birth to the couple’s son and the following month appellant’s two daughters from one of his prior marriages, T.P., 7 years old at the time and the victim in this case and C.F., the victim’s 5 year old sister, moved in with them.

Brenda next testified that shortly after the children arrived, appellant stated to her that he was going to teach his daughters how to have sexual intercourse before they grew up and before they were “forced into it by someone else”. According to Brenda, appellant decided to have sex with T.F. because C.F., although two years younger, was much more intelligent than T.F. and would be more likely to “go and tell” than would T.F.

His choice made, Dennis Flanagan, if Brenda’s testimony be believed, on multiple occasions subjected his little girl to all manner of unspeakable sexual outrages, the detailing of which on these pages would add but little to the jurisprudence of this state. It is enough to say that the acts Brenda described would evoke in all but the most insensitive persons, feelings of shock and revulsion. From time to time, at appellant’s direction, Brenda assisted him in these acts. She recounted one occasion in which she held T.F.’s arm to steady the little girl while appellant was lying on his back engaged in intercourse with the child. Fear of appellant was the reason she gave for her participation.

After a false start or two, Brenda finally left appellant to go to her grandmother’s home in Louisiana. However, before she left, she told appellant’s former wife, Peggy Fulton, about appellant’s sexual abuse of T.F. Together, she and Peggy told Imogene Whaley, a school bus driver on whose bus T.F. regularly rode from her home to Sopchoppy Elementary School and back. Mrs. Whaley advised Mr. Coyle, principal of Sopchoppy Elementary School, who, in turn, reported the matter to John Harper, a district intake counselor with the State Department of Health and Rehabilitative Services. (HRS).

On November 19, 1986, John Harper interviewed T.F. at school in the presence of Deborah Thibos, a guidance counselor at Sopchoppy Elementary School. After the child confirmed the report he had received, he notified law enforcement authorities and drove T.F. to Tallahassee for the purpose of conducting what is known as a “first strike” interview. This interview was videotaped, after which the child was taken to Dr. James Penrod, a pediatrician member of the Tallahassee Child Protection Team for a medical examination.

Prior to his examination of T.F., Dr. Pen-rod was advised that the child had alleged that her father had sexually abused her. Upon entering the examination room, the doctor introduced himself and, because T.F. was a young child and “very reticent because of the situation”, used what had been told to him about her allegations “as a basis for my role in questioning”. He said: “I understand you have had some problems with your father. What has happened with your father?” T.F. answered: “He tried to stick me”. As Dr. Penrod drew her out with further questioning, T.F. said that appellant had “tried to stick [his penis] in me” three or four times and that “he put Vaseline on it”. She also denied that anyone else touched her or tried to stick anything in her.

Dr. Penrod next testified as to the results of his physical examination of T.F. He found in this pre-pubital youngster an abnormally enlarged vaginal opening, a wholly relaxed vaginal muscle and no remnant of a hymeneal membrane. He described the sum of these findings as highly unusual in a child so young and as being consistent with repeated vaginal penetrations.

A few days after Dr. Penrod examined T.F., she was taken to Dr. Evelyn Goslin, a child psychologist and an expert in child sexual abuse for evaluation and an assessment of whether or not T.F. had been traumatized and to make recommendations as to a course of treatment. During this evaluation, Dr. Goslin did not mention anything of a sexual nature to T.F. and the child volunteered nothing about her earlier allegations. After her interview with Dr. Gos-lin, T.F. and her younger sister, then in the custody of H.R.S., were returned to a shelter for abused children. Thereafter, they were placed with their paternal grandparents.

When law enforcement officers sought to arrest appellant on the instant charges, he was out of the area in connection with his truck driving occupation. Apparently, during this or perhaps an earlier trip, he had made the acquaintance of another young woman, Brenda Lutz, a waitress at a truck stop he frequented. He asked her to marry him, she accepted, and the two of them eventually began living together somewhere in the Ocala, Florida area.

According to Brenda Lutz’s trial testimony, while on their way to purchase an engagement ring for her, appellant, who was driving a truck owned by Sprayberry Trucking Company of Tallahassee, stopped at a roadside telephone booth to call his father in Wakulla County on some matter. At that time, he learned that officers were looking for him in connection with sexual abuse charges involving his daughter. He completed the call and then told Brenda about the charges “up in Tallahassee”. The following day, appellant and Brenda Lutz drove to Tallahassee in the Sprayber-ry truck and picked up his van at the truck yard. From there, appellant went to consult with an attorney after which he and Brenda left in a Sprayberry truck for Virginia.

Upon their return from Virginia, appellant again called his father, this time from Wildwood, Florida. After the call, he told Brenda that they needed to “get out of there quickly”. They returned to Ocala and rented a trailer. After writing to his employer to advise where it could be found, appellant drove the Sprayberry truck to the Spur truckstop in Ocala and abandoned it. In this letter, appellant told his employer that by the time “they got the letter, that he would be out of state”.

Using the name Brent Lutz and Brenda’s Social Security number, appellant soon found a job in the Ocala area. He was, however, without transportation as Brenda’s car was not operable. This necessitated his return to the Tallahassee area to pick up his van. When he got to the home of a friend who was keeping the van for him, law officers arrived at the friend’s home. He escaped capture at that time by having his friend lock him in the trunk of the friend’s car while the friend’s wife drove appellant’s van to a rendezvous point outside Tallahassee. There, appellant got into his van and returned to Ocala. Shortly thereafter, on a tip from Brenda Lutz, appellant was arrested at his place of employment on the instant charges by a Marion County deputy sheriff. Upon his arrest he denied his true identity in the face of mounting evidence to the contrary and only admitted he was Flanagan when booked at the Marion County Jail.

In addition to the substantive testimony at trial of Drs. Penrod and Goslin, T.F., John Harper, Ms. Thibos, Brenda Harrison and Brenda Lutz, V.L., a child 11 years old at the time of the events she described, testified over defense objection that during the time period in question, she lived in a house next door to appellant and was a frequent visitor in appellant’s home. She recounted one occasion when she was visiting appellant’s home overnight. She was “trying to go to sleep on the couch” when Brenda Harrison called her into the bedroom where appellant was laying on his back on the bed, unclothed. She testified that Brenda “picked me up and put me on top of him and said, ‘this is how you ride a horsey’.” Brenda, she said, was holding her by her waist on appellant’s lower abdomen and appellant was “moaning and groaning”. When asked by the prosecutor “Did anything hurt you that night?”, she answered, “My private.”

After final arguments of counsel and instructions on the law by the court, the prosecutor stated: “Judge, one other matter. There is the T.V. and the VCR. Can we have someone set them up in the jury room?” The trial court then instructed the jury: “ — if you wish that to be setup for you, if it’s necessary to do so, would you please tell the Bailiff, where both the attorneys and the court can be there to see that it is placed in there. O.K.” Immediately thereafter, the jury left the courtroom to begin its deliberations.

Dennis Flanagan was convicted of one count of sexual battery on T.F., acquitted on another count and thereafter adjudicated and sentenced. The instant appeal then ensued.

Because we find that the first and third points raised by appellant dealing with the testimony of Drs. Penrod and Goslin warrant the most extensive analysis, we deal first with his other allegations of reversible error beginning with his contention that the trial court erred in permitting the jury’s apparent unsupervised viewing of the victim’s videotaped testimony during its deliberations.

So far as we have been able to determine, no appellate court in Florida has yet reached this question although the issue was raised in Chambers v. State, 504 So.2d 476 (Fla. 1st DCA 1987). In Chambers, however, the court found the issue was not preserved for appellate review in that defense counsel failed to object when the jury requested to view the videotape in question.

While not yet specifically addressed by a Florida court, courts in other states have ruled on this issue. In Martin v. State, 747 P.2d 316 (Ct.Crim.App.Ok.1987), the Oklahoma court held that a videotape of a child’s testimony could not be submitted to the jury for its unrestricted and repeated viewing during jury deliberations. The court noted that although the Oklahoma statute permitted the jury, after having retired, to make a request to again hear certain testimony, videotaped testimony of a child witness was distinguishable from a dispassionate reading of trial testimony to the jury. The court stated that the risk of prejudice was great in this situation. In Chambers v. State, 726 P.2d 1269 (Wy.1986), the court construed a statute allowing the jury to request additional information and found that the statute did not change the common law rule against submitting testimony or materials to the jury for unsupervised and unrestricted review during deliberations, and did not permit trial courts to repeat large amounts of testimony just because the jury made such a request. The court stated that the trial court, instead, should isolate the precise testimony which can solve it (the problem raised by the jury), and weigh the probative value of the testimony against the danger of undue emphasis. Chambers at 1276.

In Taylor v. State, 727 P.2d 274 (Wy.1986), the court found that permitting the jury to view videotaped testimony of a 3 year old sexual abuse victim was prejudicial error where the trial court did not supervise the viewing of the videotape, did not inquire as to why jurors wanted to view the videotape and did not determine specific facts sought by the jury. In Taylor, the only evidence supporting the conviction was the young child’s testimony. See also Schmunk v. State, 714 P.2d 724 (Wy.1986); State v. Fried, 92 N.M. 202, 585 P.2d 647 (Ct.App.), cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978); 585 P.2d 647 (Ct.App.New Mexico 1978); and United States v. Binder, 769 F.2d 595 (9th Cir.1985) cert. denied, 484 U.S. 1073, 108 S.Ct. 1044, 98 L.Ed.2d 1007 (1988). In Binder, the court found that allowing the jury to see and hear the child victim’s videotaped testimony a second time in the jury room during deliberations unduly emphasized such testimony. Again, in Binder, the only evidence of criminal acts was presented through the videotaped testimony.

Appellant’s argument on this point is necessarily predicated on certain assumptions: 1) that the cartridge encased videotape in question was in the jury room during deliberations; 2) that a television set and a VCR, without which the videotape could not be viewed, were taken to the jury room during deliberations; 3) that the jury actually viewed the videotape in question during deliberations; and 4) that the jury’s viewing of the videotape was unsupervised. We find that the only assumption that finds any support whatever in the record is assumption number l. Indeed, the trial court specifically instructed the jury immediately before deliberations began that only upon request would the T.V. set and the VCR be taken into the jury room and then only under the watchful eye of the court and counsel. For us to conclude on the record before us, as has appellant, that the apparatus absolutely necessary to view the videotape in question was, in fact, set up in the jury room, that the jury, in fact, viewed the videotape during deliberations and that such viewing was unsupervised and unrestricted, is to give full sway to surmise and conjecture and substitute speculation for record support.

We observe that in all of the cases from other jurisdictions cited above, the jury actually viewed the videotaped testimony during deliberations. An analysis of these cases reflects the courts’ concern that to permit unrestricted, unsupervised viewing of the videotaped testimony in the jury room might result in undue emphasis being placed on such testimony to the prejudice of the accused, particularly where that testimony constituted the only evidence of guilt.

Because the facts of the case at hand do not require us to decide whether or under what circumstances a jury may be permitted to view videotaped testimony during its deliberations, we leave that question to abide another day in an appropriate case. However, so that an accused person may not be unfairly prejudiced in this regard, we urge informed caution when such questions arise and commend to the bench and bar such guidance as the cited cases provide.

Here, the only thing the record reflects is that the video cassette containing T.F.’s “first strike” interview testimony may have found its way to the jury room along with other evidentiary exhibits. Assuming that such was the case and that the presence of this videotape in the jury room was unauthorized, we find a recent Florida Supreme Court case to be instructive and supportive of the position we take on this point. In State v. Hamilton, 574 So.2d 124 (Fla.1991), the supreme court was called upon to decide whether the recommendation of a jury in the penalty phase of a capital case must be set aside because of unauthorized publications present in the jury room during deliberation. In applying the harmless error standard set forth in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), the court stated:

“Our courts have applied a harmless error analysis that requires close scrutiny of the type of unauthorized material at issue, its relation to the issues at trial and the extent to which jurors actually consulted the material ...” (Emphasis added).

The mere presence of the videotape in the jury room without a record showing of “the extent to which jurors actually consulted the material” persuades us and we hold that there was no reasonable possibility that the video cassette in the jury room affected the jury’s verdict in this case. Di Guilio; Paz v. United States, 473 F.2d 662 (5th Cir.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 52 (1973); United States v. Howard, 506 F.2d 865 (5th Cir. 1975).

Flanagan next argues that the trial court erred in admitting so-called Williams Rule testimony of an incident of sexual abuse committed by appellant on the child, V.L. However, we find that the similar fact testimony of V.L. in this case was clearly relevant to prove a material fact in issue—motive or intent, as required by Section 90.404(2)(a), Florida Statutes (1985). Gibbs v. State, 394 So.2d 231, 232 (Fla. 1st DCA), aff'd., 406 So.2d 1113 (Fla.1981) (existence of a lustful attitude towards stepdaughter, proven by prior sexual assaults, makes it more likely or probable that the defendant possessed the same state of mind on the date of the offense); Potts v. State, 427 So.2d 822 (Fla. 2d DCA), rev. den., 434 So.2d 888 (Fla.1983). See also cases cited in E. Cleary, McCormick on Evidence, Sec. 190, at 560-61 and Supp. at 59 (3d ed. 1984 and Supp.1987). Thus, the testimony of V.L. was properly admitted as similar fact evidence showing a unique characteristic or combination of characteristics.

Likewise, we do not agree with appellant’s argument regarding the Supreme Court’s holding in Heuring v. State, 513 So.2d 122 (Fla.1987). In Heuring, the court reversed the defendant’s conviction because evidence of the defendant’s molestations of children other than his stepdaughter and daughter was improperly admitted. Appellant argues that Heuring stands for the proposition that the rule permitting similar fact evidence in cases involving sexual battery upon children is limited to only illicit sex between family members. However, in our view, the court in Heuring simply held that the evidence of extra-familial molestations, as presented, was not sufficiently similar to the charged offenses. In the instant case, the trial court found that there was sufficient similarity between the sexual battery of 11 year old neighbor child V.L. and the offense against T.F. We find no error in this ruling and affirm on this point.

Regarding appellant’s argument that the trial court erred in denying his motions for mistrial, we similarly find no error. Appellant’s trial counsel first moved for a mistrial after the prosecutor told the jury during his opening statements: “You are going to find that Brenda (Harrison) has entered pleas to six felonies and is awaiting sentencing.” The trial court overruled the objection but did not rule on the motion for a mistrial. Appellant’s failure to secure a ruling on the motion may be considered a waiver and the issue therefore has not been preserved for appellate review. See Leretilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA), cert. den., 359 So.2d 1216 (Fla.1978).

Appellant also moved for a mistrial following Brenda Harrison’s testimony that appellant “had made promises that he would never mess with any more kids.” The trial court denied the motion and permitted the state to re-examine Brenda Harrison as to why she returned to appellant after having left him. She corrected her response to say, “Because he had promised that he would not hurt (T.F.) any more and that things would get better, be better.” In addition to the arguable nature of the words first used by the witness, appellant did not request a curative instruction as to that response. We consider such a request to be a necessary prerequisite for a motion for mistrial. Ferguson v. State, 417 So.2d 639, 641 (Fla.1982); Palmer v. State, 486 So.2d 22, 23 (Fla. 1st DCA 1986). Accordingly, we find no merit to appellant’s arguments on this point.

A pivotal point in this appeal is appellant’s contention that the trial court erred in permitting Dr. James Penrod to testify that T.F. identified appellant as her sexual abuser. Such testimony, argues appellant, is inadmissible hearsay in that the child’s ascription of fault and identity are not, as required by Section 90.803(4) of the Florida Evidence Code, reasonably pertinent to diagnosis or treatment of the condition she presented when examined by the doctor. For any one of three reasons, we find appellant's argument on this point to be without merit.

First, under the facts of the case, we are not persuaded that T.F.’s statement to Dr. Penrod was hearsay at all. Section 90.801(2)(b) provides that a statement is not hearsay 1) if the declarant testifies at trial; 2) is subject to cross-examination concerning the statement; and 3) the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive or recent fabrication. (Emphasis added). At trial, T.F. testified on direct examination that appellant was her abuser, which testimony was consistent with her earlier statements to John Harper, Deborah Thibos and Dr. Penrod. However, on cross-examination, appellant’s counsel elicited from the child that she had told Dr. Goslin only a few days before trial that Brenda Harrison rather than appellant had “hurt” her. Given that T.F. had only a minute or two earlier on direct examination once again identified appellant as her assailant, defense counsel’s cross-examination of the little girl impliedly, at least, suggested that her direct testimony on the identity of her abuser was either the product of improper influence exerted on her by some person or persons or amounted to a recent fabrication. Consequently, on the record before us, the objected to testimony was, by definition, not hearsay in that T.F., the declarant, testified at trial and was subject to cross examination regarding the statement; the statement itself was consistent with her testimony on direct examination; and it was admissible to rebut the inference(s) raised by defense counsel’s cross examination.

Even were we to conclude that Dr. Penrod’s recounting of what T.F. told him with regard to appellant was hearsay, we would nonetheless hold such testimony to be admissible under the medical diagnosis and treatment exception to the Florida hearsay rule. In so holding, we would align this court with the clear trend of authority which admits identifying statements in child sexual abuse prosecutions. The rationale for such admission is that, within the context of incidents of child sexual abuse occurring in the home, for treatment purposes statements of identification are inseparable from other statements regarding the incident. See Graham, The Confrontation Clause, the Hearsay Rule and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 529 (1988); McCormick on Evidence, Sec. 297 (3d Ed.1984).

Florida’s diagnosis and treatment exception to the hearsay rule is patterned after the federal exception contained in Rule 803(4) of the Federal Rules of Evidence, which provides:

Statements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Although the Florida rule is worded somewhat differently, we believe the distinction between the two rules on the issue before us is of no legal moment and that the Florida rule should be construed in accordance with federal decisions interpreting the federal rule. See Moore v. State, 452 So.2d 559 (Fla.1984). See also C. Ehrhardt, Florida Evidence, § 803, at 467 (2d Ed.1984) (“the exceptions contained in Section 90.803 are similar to those enumerated in Federal Rule of Evidence 803”).

With respect to the medical hearsay identity issue, the leading case supporting the position we take is United States v. Renville, 779 F.2d 430 (8th Cir.1985). There, the court approved the trial court’s admission of certain statements identifying the defendant as the abuser of the child, which statements the child had made to a physician during a medical examination. In so ruling, the Eighth Circuit observed that a statement by a child sexual abuse victim identifying the abuser as a member of the child’s immediate household would be generally admissible because such statements are the type that physicians reasonably rely upon in determining a diagnosis and/or course of treatment. 779 F.2d at p. 438. The court reasoned:

First, the child abuse involves more than physical injury; the physician must be attentive to treating the emotional and psychological injuries which accompany this crime. The exact nature and extent of the psychological problems which ensue from child abuse often depends on the identity of the abuser.

The Renville court concluded that because of the emotional and psychological component presented in sexual abuse of children at home, such cases were “wholly different” than those in which the injury complained of is “purely somatic.” In cases of the latter type, the general rule banning statements of fault was applicable because no facet of the treatment involved could relate to the identity of the individual at fault or prevent recurrence of the injury. In a word, in “purely somatic” injury cases, statements of fault or identity may be irrelevant to diagnosis or treatment and thus do not qualify for admission under the diagnosis and treatment exception to the hearsay rule.

In United States v. Provost, 875 F.2d 172 (8th Cir.), cert. denied, 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127 (1989), the court applied the Renville rationale not only to statements made by a victim to her treating psychologist, but also to her examining physician. See also United States v. Shaw, 824 F.2d 601, 608 (8th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988).

Courts in a number of states, some with more restrictive medical diagnosis hearsay exceptions than the federal exception, have held that statements such as the one in the case at hand are admissible. For example, in People v. Wilkins, 134 Mich.App. 39, 349 N.W.2d 815 (1984), the defendant was convicted of committing first degree criminal sexual conduct with his 9 year old stepdaughter. A hospital emergency room doctor and an official of the County Department of Protective Services for Children referred the victim to a physician, the director of the Family Assessment Clinic. During her examination of the victim, the victim identified the defendant as her assailant. At trial, the physician testified to this statement.

On appeal, the appellant argued that the statement should not have been admitted under the medical diagnosis hearsay exception because it was not reasonably necessary to medical diagnosis or treatment, not that it was not made for the purpose of medical diagnosis or treatment. The appellate court noted that there were no Michigan cases on point so it looked to the federal rule. While the court observed that the federal exception was broader because it only restricted the exception to statements that were reasonably pertinent to diagnosis or treatment, it still held that the victim’s statement was properly admitted into evidence. Other state courts have modeled their approaches in such cases after Renville, focusing on the child, child sexual abuse context and prevention of child sexual abuse in their decisions. For example, in State v. Nelson, 138 Wis.2d 418, 406 N.W.2d 385 (1987), the state charged the defendant with one count of intentionally and feloniously having sexual contact with his daughter who was approximately 3 years old. At trial, the state presented no eyewitness testimony and did not call the victim to testify. Instead, the state presented evidence of the assault and the victim’s link to the assault through the testimony of the victim’s mother, the victim’s treating psychologist, and another psychologist. Specifically, the treating psychologist testified that during some of the numerous sessions he had with the victim, she implicated her father. The other psychologist also testified that, during several sessions with the child, she had implicated her father.

The Wisconsin Supreme Court first determined that the victim’s statements were made with the knowledge that they.were to be used as a basis for diagnosis and treatment, and then embarked on a discussion concerning the propriety of the trial court’s admission of the victim’s statements as to whom her abuser was.

The general rule is the statements as to who was at fault are ordinarily inadmissible under the exception for statements made for the purpose of diagnosis or treatment. The reason behind this rule is that statements identifying the assailant seldom are made to promote effective treatment.

However, while treatment of a physical injury would rarely require disclosure of the identity of the assailant, it is recognized that disclosure of the identity of the assailant is reasonably necessary to provide treatment for a victim of child abuse. Child abuse cases often involve emotional and psychological injuries as well as a physical injury. Treatment of these emotional and psychological injuries of a child abuse victim often depends upon the identity of the abuser.

See also State v. Maldonado, 13 Conn.App. 368, 536 A.2d 600 (Ct.App.), cert. denied 207 Conn. 808, 541 A.2d 1239 (1988) (the court held that statements made by the victim, which identified the defendant as her assailant to a security guard at the hospital were admissible); State v. Vosika, 83 Or.App. 298, 731 P.2d 449, on reconsideration, 85 Or.App. 148, 735 P.2d 1273 (1987) (the court reasoned that, from the perspective of the foster mother, social worker, and pediatrician, the victim’s statements regarding the identity of her abuser were essential to correctly treat the child); State v. Bullock, 320 N.C. 780, 360 S.E.2d 689 (1987) (the court held admissible the victim’s statements to a pediatrician/child medical examiner concerning the identity of her abuser); State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985) (the court held that the statements of one of the victims to her grandmother concerning the identity of the defendant as the perpetrator of the crime were admissible); State v. Gregory, 78 N.C.App. 565, 338 S.E.2d 110 (1985) (the court held that statements by the victim to her grandmother were admissible based upon Smith).

In State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987), the state charged the defendant with having improper sexual contact with his stepdaughter and another child both of whom were under 12 years of age. At trial, the psychologist of one of the victims testified, relating that the victim told her that the defendant had kissed her and placed his penis in her “privates” and in her mouth. The Arizona Supreme Court found these statements were properly admitted into evidence under the medical diagnosis/treatment hearsay exception. The court held:

—the identity of the victim’s assailant and other statements attributing fault ordinarily are inadmissible under Rule 803(4) because because identity and fault usually are not relevant to diagnosis or treatment....

This general rule, however, is inapplicable in many child sexual abuse cases because the abuser’s identity is critical to effective diagnosis and treatment.

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At least in child sexual abuse cases, we therefore join the growing number of jurisdictions which recognize that statements regarding the abuser’s identity fall within Rule 803(4) whenever, as here, identity is relevant to proper diagnosis and treatment. When the abuser’s identity is elicited and given to further treatment, the doctor’s and the declarant’s “selfish interest[s]” in giving and obtaining proper treatment are a sufficient guarantee of trustworthiness to at least allow the jury to evaluate the statements.

In State v. Aguaito, 318 N.C. 590, 350 S.E.2d 76 (1986), the defendant was indicted on a charge of first degree rape for engaging in vaginal intercourse with his 9 year-old stepdaughter. Subsequently, a pediatrician in the child medical examiner program examined the victim who related that the defendant was the perpetrator. On appeal, the defendant argued that the victim’s statements in this regard were not made for the purpose of medical diagnosis or treatment but for the purpose of gathering evidence for the state. The North Carolina Supreme Court disagreed, noting that there was no evidence that law enforcement officials initiated the visit. Specifically, the social worker took the victim to the doctor several months before trial. On this basis, the court distinguished its decision in State v. Stafford, 317 N.C. 568, 346 S.E.2d 463 (1986), where the physical examination of the victim took place just three days before trial “to prepare and present the state’s rape trauma syndrome theory at trial.” The Aguallo court concluded that the victim’s identification statements were reasonably related to treatment and diagnosis and thus were properly admitted into evidence. See also Stallnacker v. State, 19 Ark.App. 9, 715 S.W.2d 883 (1986); Goldade v. State, 674 P.2d 721 (Wyo.1983).

In contending for the application of the minority view in resolving this issue, appellant calls our attention to such cases as Torres-Arboledo v. State, 524 So.2d 403 (Fla.) cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988), Bradley v. State, 546 So.2d 445 (Fla. 1st DCA 1989) and Hanson v. State, 508 So.2d 780 (Fla. 4th DCA 1987). We find each of these cases to be factually distinguishable or otherwise inapposite.

In Torres-Arboledo, the Florida Supreme Court held that the victim’s statements to an emergency room doctor were not admissible under the medical diagnosis/treatment exception. Specifically, the victim told the doctor that “A couple of black people tried to steal his medal and shot him.” The court’s observation that “so-called statements of fault do not qualify” for admission under the medical diagnosis/treatment hearsay exception expresses the traditional view of the matter where, as in that case, the statement objected to clearly had no relevance to medical diagnosis or treatment for any condition presented. We do not, however, interpret the language quoted above to be a blanket prohibition to the admissibility of statements of fault or identity in all situations. Otherwise stated, we are not persuaded that the supreme court, by dictum, intended to limit consideration by a jury of relevant evidence admitted under this exception.

Indeed, in Danzy v. State, 553 So.2d 380 (Fla. 1st DCA 1989), this court affirmed the admission under the diagnosis/treatment exception of testimony of a doctor and nurse as to a sexual battery victim’s statements recounting the assault and naming her assailant even though the victim had initially consulted the doctor for back and neck injuries.

In Danzy, the victim, a woman in her mid-twenties, was living with her sister and appellant (her sister’s boyfriend) while she recuperated from injuries to her back and neck sustained in an auto accident. Shortly after she moved in, the appellant placed his hand inappropriately on her groin area, fondled her breasts and digitally penetrated her rectum. She ran out the front door of the apartment, tripped on the stairway and fell, re-injuring her back and neck.

After her re-injury, the victim returned to the same clinic at which she had previously been treated for her auto accident injuries. There, she saw a doctor other than the one who had initially treated her. He asked her how she had been re-injured. At first, she would say only that she had fallen down a flight of stairs. Noting her increasing agitation and feeling it important to learn why she was so upset and how she had fallen, the doctor persisted with his questioning. Finally, the victim told him of the incident preceding her fall and identified her assailant. She was then sent to the hospital for a sexual assault examination. While there, she told the nurse, who testified as to such statement at trial, that she had been sexually battered. In sustaining the trial court’s admission of the testimony in question, the court reasoned:

The appellant argues that because the victim consulted the doctor for her back and neck injury, her statement concerning the sexual battery was irrelevant for treatment or diagnosis of that condition. While it is true that the victim went to the doctor initially for examination of her back and neck following her fall, the trial court did not err in finding that her statement describing the sexual battery is nonetheless admissible as “reasonably pertinent” to diagnosis or treatment of the victim’s general condition. In so ruling, the trial judge evidently found, as we do also, that this statement is reasonably pertinent because the doctor him-selffelt it necessary to inquire how the victim aggravated her injury and why she was so visibly upset. The doctor specifically testified that he believed it was important to find out why his patient was in obvious distress. By the same token, the statement to the nurse at the emergency room was made to assist a medical examination.

Danzy, 553 So.2d at 381. (Emphasis supplied).

Aside from its departure from rigid adherence to the generalized traditional view, Danzy is instructive for a number of reasons. First, it addresses admissibility of evidence offered to describe cause or inception of injury in terms of its reasonable pertinence to diagnosis or treatment of the declarant’s “general condition”. Second, it stresses, and we believe rightly so, that what is “reasonably pertinent” to diagnosis and/or treatment is properly viewed from the perspective of the examining physician rather than the vantage point of an appellate court. Thirdly, as did Professor Graham in his treatise previously cited, it implicitly recognizes the practical improbability if not impossibility of separating the “what happened?” from the “who caused what happened?” in describing incidents of sexual assault.

We do not cite Danzy for the general proposition that in all sexual abuse prosecutions, statements of identity or fault will be admitted under the exception as being reasonably pertinent to diagnosis or treatment. We simply observe that, to be admissible under the exception, statements of fault or identity must rest on a proper predicate and be found by the trial court to be reasonably pertinent to diagnosis or treatment. There are, however, inescapable similarities between Danzy and the instant case. Both cases involved sexual abuse occurring in the home at the hand of one who lived there. Although the victim in Danzy was a mature woman in her mid-twenties and the victim in the instant case was a child of tender years, the examining physician in each case expressed concern regarding the emotional and psychological state of the victim. In each case, the trial court evaluated the statement offered and found it to be reasonably pertinent to diagnosis and treatment. In both cases, the appellant invited this court, through the exercise of hindsight and a considerable period of time after the fact, to decide what the examining physician needed to know or whether he needed to know what he thought he needed to know in arriving at a diagnosis or prescribing an appropriate treatment regimen. As did the Danzy court, we likewise decline the invitation and, in so doing, note that the standard of appellate review of a trial court’s admission of such evidence is whether the trial court abused its discretion in admitting the evidence. Here we find no such abuse of discretion.

Our attention has also been called to Bradley v. State, 546 So.2d 445 (Fla. 1st DCA 1989), wherein a panel of this court held that a statement made by a person seeking confirmation of her suspicion of pregnancy to a nurse at a family planning clinic was not admissible under the medical diagnosis/treatment exception to the hearsay rule. There, the victim realized, about one month after a sexual assault by the defendant, that her menstrual cycle had been interrupted. Only then did she tell her mother of the assault. The victim and her mother visited a family planning clinic for a physical exam and a pregnancy test. While there, she told a staff member that she had been raped about one month previously, a fact which was entered onto the victim’s health history form. At trial, the supervisor of the clinic testified regarding this entry.

This court held that such a “statement” did not fit within the medical diagnosis hearsay exception, because the victim did not visit the clinic to receive treatment for injuries due to assault or rape. Because she visited the clinic specifically for a pregnancy test, the court reasoned that a statement that the victim was raped was not shown of record to be reasonably pertinent to this determination. Thus, we find Bradley to be inapposite because, in the present case, the victim visited Dr. Penrod as a direct result of appellant’s sexual assault on her.

Appellant also relies on Hanson v. State, 508 So.2d 780 (Fla. 4th DCA 1987). There, the court found erroneous the admission of the victim's statements to the examining physician that the defendant had had sexual intercourse with her. However, in Hanson, the defendant had no connection with the victim’s household, a fact in and of itself which may have militated in favor of the conclusion reached there. See Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988),

Even if our reasoning that Dr. Pen-rod’s testimony regarding T.F.’s identification of appellant as her abuser was not hearsay under the circumstances is flawed, or our conclusion that even if hearsay, it qualified for admission under Florida’s medical diagnosis/treatment hearsay exception is erroneous, that portion of Dr. Penrod’s testimony would still not be a basis for reversal under the rationale of Salter v. State, 500 So.2d 184 (Fla. 1st DCA 1986), described in Kopko v. State, 577 So.2d 956 (Fla. 5th DCA 1991) as reflective “of the overwhelming view that cumulative or repetitive evidence cannot be harmful error.”

In Salter, the counselor on the child protection team testified that the child victim told her that a man had touched her on her private parts. This court held that even if such admission was error, it was harmless:

An error in admitting testimony is harmless when substantially the same evidence was presented to the jury through the testimony of other witnesses. Palmes v. State, 397 So.2d 648, 653 (Fla.1981), and Begley v. State, 483 So.2d 70 [(Fla. 4th DCA 1986)]. Here, the child testified concerning the lewd and lascivious assault by the appellant, and her mother and friend testified that immediately after the incident, the child reported the assault to them. Accordingly, we conclude that the testimony of the Child Protection Team counselor was merely cumulative and did not give significant additional weight to the child’s testimony. Id.

See also Coy v. Iowa, 487 U.S. 1012, 108 S.Ct 2798, 101 L.Ed.2d 857 (1988); Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989), rev. den., 563 So.2d 635 (Fla.1990); Cook v. State, 531 So.2d 1369, 1371 (Fla. 1st DCA 1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1542, 103 L.Ed.2d 846 (1989); Westley v. State, 416 So.2d 18 (Fla. 1st DCA 1982); Fern v. Krantz, 351 So.2d 1144 (Fla. 3rd DCA 1977); Perkins v. State, 779 S.W.2d 918 (Tex.App.1989); State v. Green, 603 S.W.2d 50 (Mo.App.1980).

In this case, T.F. testified in person and on videotape. John Harper and Deborah Thibos testified, without objection, that T.F. told them her father was her sexual abuser. Brenda Harrison testified that appellant, sometimes with her assistance, sexually abused T.F. Dr. Penrod’s unobjected to testimony established beyond peradventure that the condition of the child’s private parts was consistent with repeated penetration. Important to note, also, is the fact that appellant has never contended that T.F. was not sexually abused. The thrust of his defense below was that he did not commit sexual abuse on her. Thus, as T.F.’s identification of appellant as her assailant was placed before the jury by other witnesses in addition to Dr. Penrod, we find there is no reasonable possibility that the admission of the doctor’s testimony im-permissibly influenced the jury’s verdict. Any error in its admission was therefore harmless. DiGuilio, supra.

Before we leave this point, we believe it appropriate to address the role of the physician as a member of the Child Protection Team (CPT). We do so because of some suggestion that the physician, in carrying out his responsibilities as a team member, primarily serves a police function, i.e. investigating a crime as an agent for the state. As did the North Carolina Supreme Court in State v. Aguaito, supra, and this court in Gresh v. State, 560 So.2d 1266 (Fla. 1st DCA 1990), we reject this argument as being inconsistent with legislative intent, clearly expressed, that a CPT physician’s examination shall serve to produce a diagnosis and a plan of treatment for child sex abuse victims. See generally Secs. 415.502, 415.503, 415.504 and 415.5055, Fla.Stat.

Nothing in the record before us suggests that law enforcement officers initiated Dr. Penrod’s examination of T.F. or that her visit to Dr. Penrod was to prepare her to give testimony at trial. See State v. Stafford, 317 N.C. 568, 346 S.E.2d 463 (1986). Indeed, the record unequivocally shows that John Harper, an intake officer with HRS, received a referral concerning an alleged sexual abuse of the victim by her father. Based on an interview with the child, Harper took the little girl to Dr. Penrod. Nothing in the record even remotely hints that the visit by T.F. to Dr. Penrod’s office was for any purpose other than diagnosis and treatment if she had been sexually assaulted. We thus conclude that in examining T.F., Dr. Penrod acted in the role contemplated by the Florida legislature in Chapter 415, i.e. as medical examiner and evaluator for the CPT rather than as a criminal investigator for some law enforcement agency.

We now turn our attention to appellant’s last issue on appeal. Simply stated, he contends that the trial court committed reversible error in permitting Dr. Evelyn Goslin, an acknowledged expert in the areas of child psychology and child sexual abuse to testify in limited fashion about results of studies which identify certain shared characteristics of persons who commit child sexual abuse and the home settings in which child sexual abuse frequently occurs.

With respect to the so-called “offender profile” portion of Dr. Goslin’s testimony, our review of the record reflects that it consumed but 2 of some 46 pages of her testimony. Once elicited, such testimony was never again mentioned during the trial. When Dr. Goslin was asked by the prosecutor whether her offender profile testimony meant that a person who possessed one or more of the characteristics she described was necessarily a child abuser, she replied in the negative, thus qualifying her description of the studies referred to as not useful in proving or disproving that one was or was not a child abuser. In this regard, Dr. Goslin’s observations are consistent with the present state of the law in this country that “offender profile syndrome” has not yet seasoned or been refined to the point where it commands substantial support in the scientific community as substantive evidence that one who possesses one, some, or all of the syndrome characteristics is, in fact, an abuser. Otherwise stated, at present, the use of offender profile testimony is not admissible as substantive evidence to prove the guilt of one charged with child sexual abuse.

On whether scientific acceptance of such testimony will come in the future, thereby meeting the exacting standards first laid down in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and thereafter followed in numerous cases, we need not speculate. Nor, within the context of this appeal, need we attempt a definitive determination of the validity of the studies describing this syndrome or their relevance to any defense raised by the appellant. Such is the case for two reasons. First, we are not persuaded that the testimony in question, described by Dr. Goslin as providing “background information” which is a “standard focus” of “almost every study”, is inadmissible to promote juror understanding of a phenomenon which is “not so understandable that people know as much about it as a qualified expert with the requisite skill and exposure to numerous studies in the field.” Ward v. State, 519 So.2d 1082 (Fla. 1st DCA 1988). See also Kruse v. State, 483 So.2d 1383 (Fla.App. 4th DCA 1986), cause dismissed, 507 So.2d 588 (Fla.1987) and Johnson v. State, 393 So.2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981).

Secondly, we conclude that even if the trial court abused its discretion in admitting the objected-to testimony, such error, under the facts of this case, was harmless and does not require reversal of appellant’s conviction. Dr, Goslin expressly advised the jury that she was not offering the testimony as proof of appellant’s guilt. The evidence adduced was isolated, brief and was not made a feature of the trial or referred to in any way during other testimony or in argument of counsel. Moreover, independent of the so-called profile evidence, sufficient other evidence, much of which was not objected to, was placed before the jury to support appellant's conviction. Indeed, the totality of the evidence adduced below persuades us that there is no reasonable possibility that the jury based its verdict solely on Dr. Goslin’s offender profile evidence. DiGuilio, supra. See also Duley v. State, 56 Md.App. 275, 467 A.2d 776 (Ct.App.1983) and State v. Durfee, 322 N.W.2d 778 (Minn.App.1982).

In addition to her offender profile testimony, Dr. Goslin also testified, even more briefly, as to certain “common denominators in the home environment” that “over the past 15 years” have come up “often enough in families where sexual abuse occurs to be highly significant.” The primary characteristic she recounted was lack of privacy in the home. Other testimony, not objected to, revealed that in the home T.F. shared with appellant, her younger sister and Brenda Harrison, there were no interior doors of any kind. Moreover, there was no testimony that coverings of any kind protected bathroom users or bedroom occupants from even the casual scrutiny of other household members or visitors. As with the offender syndrome testimony, other than an objection during proffer of this testimony that it was “speculative”, defense counsel thereafter made no motion to strike nor did counsel request a cautionary instruction as to the purpose for which such testimony could be received. Even assuming that appellant’s counsel preserved his objection for appellate review and that this testimony was erroneously admitted, we do not find a predicate for holding the admission of such evidence to be reversible error for the same reasons ascribed above.

We conclude this analysis on a cautionary note directed to the trial bench and bar. We confess to mounting trepidation with respect to the use of some expert witnesses in criminal prosecutions. It must be remembered that the purpose of the expert witness, by whomever called, is to offer guidance to lay-jurors on matters beyond their understanding. It is not the role of expert witnesses to “fill in the gaps” when substantive evidence which should be offered on some disputed issue is lacking.

Appellant’s conviction and sentence are AFFIRMED.

JOANOS, C.J., and BOOTH, NIMMONS and WIGGINTON, JJ., concur.

ERVIN, J., concurs in part and dissents in part with opinion with which ZEHMER, J., concurs and SMITH, J., concurs in part.

SMITH, J., concurs in part and dissents in part with opinion with which SHIVERS and KAHN, JJ., concur.

ZEHMER, J., concurs in part and dissents in part with opinion with which ERVIN, J., concurs.

BARFIELD, J., concurs with opinion.

WOLF, J., concurs with opinion with which KAHN, J., concurs, and ZEHMER, J., concurs in part.

KAHN, J., concurs with opinion. (Did not participate in Oral Argument).

ALLEN, J., recused.

. As part of a plea bargain, Brenda Hartley Harrison entered pleas of no contest to six felony counts arising out of her role in appellant’s sexual abuse of T.F. She also agreed to testily against him. Under the plea agreement, she reduced her prison exposure from over 20 years to 7 to 9 years.

. This videotape was later admitted into evidence and shown to the jury over defense objection that T.F. was not a competent witness and that showing the tape violated defendant's confrontation clause rights.

. Using Brenda’s name and Social Security number was apparently not his only effort to shed his true identity. According to Brenda, to assist appellant in acquiring a new identity, she drove him to a cemetery near Anthony in rural Marion County to examine tombstones in search of the name of a deceased person roughly his age, in whose name he could apply for a new Social Security number.

. After presentation of all the evidence and over defense objection, the trial court ruled that the videotape might be made available to the jury because “[i]t was filed here and is an exhibit and not objected to. Therefore, admissible as such.” It is unclear in the record whether the cassette was actually taken into the jury room or not. Also, the record affirmatively indicates that, contrary to the trial court’s observation, defense counsel did, in fact, object to the tape going into the jury room.

. Although not addressed by counsel below or in the instant appeal, we must necessarily deal with this question if we are to decide the issue raised by appellant.

. Both John Harper and Deborah Thibos testified at trial, without objection, that T.F. named appellant as her sexual abuser.

. At appellant’s request, the trial court ordered Dr. Goslin to do a follow-up evaluation of T.F. This evaluation took place some seven months after Dr. Goslin first interviewed the child. Dr. Goslin testified that when T.F. was brought back to her office and without telling her why she was there, she (Dr. Goslin) innocuously inquired of the child, "What’s happening with you?’’ and T.F. responded spontaneously, “I’m going to court next week to say that Brenda did it.” We note that T.F. was then residing with appellant’s parents and had been living with them since shortly after her first interview with Dr. Goslin.

. Section 90.803(4), Florida Statutes (1989), provides: “Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.”

. Even as she argued for application of the minority view, counsel for appellant candidly acknowledged that the position we express on this issue accords with the holdings in the majority of jurisdictions where the question has arisen.

. Q. Alright. Now, that’s not to say that any time you see one of those last two persons out of work or a person who is dominant, that that person is necessarily a child abuser?

A. Not at all, not at all.

. This testimony consumed 1 page of the 46 page record of Dr. Goslin’s testimony.

ERVIN, Judge,

concurring and dissenting.

I agree with Judge Miner’s opinion in affirming all issues except those relating to 1) the trial court’s error in allowing the jury to view videotaped testimony of the victim during its deliberations; and 2) its error in admitting expert testimony regarding profiles of child-abuse offenders and environments in which such offenders and their victims live. I also agree with his opinion in affirming the trial court’s admission of out-of-court statements made by the victim to Dr. Penrod identifying her father as the perpetrator of the abuse on the ground that such statements are not hearsay because they were consistent with the witness’s testimony and offered to rebut a charge of recent fabrication, Section 90.-801(2)(b), Florida Statutes (1985). I disagree, however, with Judge Miner’s alternative analysis on that issue, that such statements nonetheless properly fall within the medical diagnosis or treatment exception to the hearsay rule, Section 90.808(4), Florida Statutes (1985).

The remainder of this dissenting and concurring opinion will focus upon my areas of disagreement, beginning first with the statements made to Dr. Penrod, turning then to my dissenting views relating to the jury’s access to the victim’s videotaped testimony, and concluding with the profile testimony of Dr. Goslin.

I.

The trial court’s admission of statements made by the child victim identifying her father as the person who abused her.

As to Judge Miner’s conclusion that Dr. Penrod’s testimony was otherwise admissible pursuant to the provisions of section 90.801(2)(b), the rule is clear that evidence inadmissible for one purpose under the hearsay rule may be admissible for another purpose. See State v. Allen, 519 So.2d 1076, 1078 (Fla. 1st DCA 1988); Lazarowicz v. State, 561 So.2d 392, 394 (Fla. 3d DCA 1990). As in Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986), the child’s out-of-court statement to another person was properly admissible as a prior consistent statement that was made before the existence of a charge against her of recent fabrication. Accord, Anderson v. State, 574 So.2d 87 (Fla.1991); McDonald v. State, 578 So.2d 371 (Fla. 1st DCA 1991). Therefore, I agree to affirm as to this issue for the limited reason stated. As previously noted, however, I disagree with Judge Miner’s alternative conclusion, which holds that Dr. Penrod’s account of what the child victim told him was admissible under the medical diagnosis and treatment exception to the hearsay rule.

In so saying, I think it essential to examine the manner in which the physician’s question was directed to the victim. This question did not simply inquire about what happened to the child, but also called for identification of the father as the person who assaulted her. The question, “I understand you have had some problems with your father. What has happened with your father?” clearly implied the answer. (Emphasis added.) Even if such a leading question could generally be sanctioned by the medical diagnosis exception due to the tender years of the c