Harmless Error
The Florida Supreme Court accepted a petition for disciplinary revocation of an attorney
David Michael Carnright, 33 Fonseca Ave., Coral Gables, disciplinary revocation with leave to seek readmission after five years effective immediately following a January 9 court order. (Admitted to practice: 2011) Carnright petitioned for disciplinary revocation following his felony suspension. The court granted the petition, effective immediately. (Case No. SC24-1668)
From the criminal appeal to the Florida Third District Court of Appeal which affirmed the conviction
The pertinent facts are undisputed. Carnright was charged with three counts of sexual battery for an incident that occurred on the night of March 1–2, 2018. Carnright allegedly met the victim in a bar, offered her cocaine, brought her back to his vehicle to have sex, and attempted to offer her money afterward. The primary dispute turned on consent, with the victim alleging that Carnright took advantage of her inebriation to force her to perform sexual acts against her will, and defense counsel arguing that the victim fabricated the claims to extort Carnright for drugs and money.
The State proffered evidence that Carnright made several PayPal payments to the victim shortly after the incident and that the victim promptly returned most of these payments except for $100 of an initial $300 payment. Carnright and the victim also exchanged several text messages on the night of the incident, including messages in which Carnright accuses the victim of taking his bag of cocaine and subsequently apologizes after the victim confronts him about her lack of consent. The State’s case was also supported by several witnesses to whom the victim described the incident, as well as photographs of a bump on the victim’s forehead that she testified she received from being pushed against the floor in Carnright’s vehicle. Carnright himself did not testify.
To impeach the victim’s credibility, defense counsel sought to introduce evidence of the victim’s internet search history from the days following the incident, which included searches about how to keep cocaine and Xanax from appearing in drug tests. The defense claimed that these searches would be inconsistent with the victim’s testimony that she did not remember doing cocaine with Carnright. The defense also sought to introduce text messages between the victim and her friends in the days following the incident, including messages in which the victim says that she “did coke all night with this guy” (referring to Carnright), appears to boast about receiving money from him, and suggests that she would perform oral sex for money and had done so before. The defense claimed that these messages would show that the victim’s claims were false and financially motivated.
The trial court allowed the defense to cross-examine the victim about these records, paraphrase their content, and use them to refresh her recollection, but did not allow the exact language to be shown to the jury or read into evidence. The victim ultimately acknowledged making these searches and messages, but denied ever using Xanax, maintained that she did not remember using cocaine with Carnright (but did not deny using cocaine, either), and claimed that the messages suggesting she had traded sex for money were a “joke.” The jury returned a guilty verdict on only one of the three counts, acquitting on the two predicated on unconsented oral sex. This appeal followed.
Affirmed
In sum, despite the exclusions, upon review of the trial record, no reasonable possibility exists that any error contributed to the conviction. Thus, we find any impropriety in the exclusion of the verbatim text messages to be harmless.
(Mike Frisch)