
    L.B., Appellant, v. The NAKED TRUTH III, INC., d/b/a Pleasure Emporium North, Appellee.
    No. 3D10-975.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Opinion on Denial of Rehearing Nov. 28, 2012.
    
      Michele K. Feinzig; Sheftal & Torres and Scott D. Sheftall, for appellant.
    Cole Scott & Kissane and Scott A. Cole and Alejandro Perez, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

The Plaintiff/Appellant, L.B., appeals from a final judgment entered in favor of her employer, The Naked Truth III, Inc., on her claim for negligent security. We address two of the five issues L.B. raises on appeal as they are interrelated. However, because we are reversing and remanding for a new trial, we do not address the remaining issues raised on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

L.B. worked as a sales clerk at an adult retail store owned by The Naked Truth, III, Inc. (the “Store”). On December 25, 2007, L.B. worked the overnight shift from midnight to 8:00 a.m. for a coworker. Only one sales clerk was assigned to work this shift. The Store’s security included, among other things, cameras, both inside and outside the Store, which could be viewed on monitors; extensive indoor and outdoor lighting; a locked front door which the sales clerk could open by a buzzer; and a panic alarm which could be activated by pressing a button under the counter.

At about 5:30 a.m., L.B. buzzed in a male customer who then walked to the back of the Store where the movies and viewing booths were located. Suddenly, the male customer appeared at the cashier’s counter brandishing a gun. He ordered L.B. to give him the money from the register and the safe, and then directed L.B. to lie on the floor. He then raped her. After he left, L.B. pressed the panic alarm and called 911 on her cellular phone.

Investigations revealed that four prior armed robberies had occurred at the Store during the overnight shift, the last one only two months before the attack on L.B. None of these incidents involved a sexual assault. Jose McCray (“the assailant”), who lived about twenty-two miles from the Store, was identified as the assailant. L.B. did not know the assailant; however, a coworker, Xavier Powell, stated that about three days prior to the attack, the assailant had come into the Store and asked for L.B. The coworker told the assailant that L.B. no longer worked the overnight shift.

L.B. sued the Store alleging negligent security. Both parties retained experts to testify regarding the Store’s security. Plaintiffs expert, Rosemary Erickson, Ph. D., opined that the Store failed to implement sufficient security measures after the prior armed robberies and that the rape was a crime of opportunity that was foreseeable and preventable. Defendant’s expert, Gregg McCrary, testified that the attack was a “victim-targeted” crime which was unforeseeable and unpreventable by any security measures. He also testified that the security measures in place at the Store were reasonable.

Prior to trial, the judge denied L.B.’s motion to limit the testimony of McCrary, and to exclude Powell’s testimony regarding the assailant’s inquiry about L.B.

Ultimately, the jury returned a verdict finding no negligence. The trial court subsequently denied L.B.’s motion for a new trial, and this appeal followed.

II. ANALYSIS

A. The Trial Court Abused its Discretion in Admitting the Testimony of the Store’s Security Expert that this was a “Victim-Targeted” Crime

L.B. asserts that the trial court erred in admitting the testimony of the Store’s security expert, McCrary, that this was a “victim-targeted” crime. Specifically, L.B. asserts that McCrary’s testimony was speculative because it was based upon hearsay, and constituted inadmissible testimony as to “motive” pursuant to Smithson v. V.M.S. Realty, Inc., 536 So.2d 260 (Fla. 3d DCA 1988). The Store also cites to Smithson as support for its position that the testimony admitted was proper.

In Smithson, Smithson, a mall theatre manager, was murdered while he attempted to make a night deposit at a mall bank. The surviving wife sued the mall owners alleging inadequate security. The jury returned a defense verdict, and plaintiff appealed. Plaintiff argued that the trial court erred in permitting defendant’s expert to testify regarding the robbers’ motive for choosing to rob Smithson. As in the instant case, the plaintiff contended that the expert relied on inadmissible and prejudicial hearsay testimony. There the expert interviewed the assailants and, in testifying, recited their explanation of the plan and motive for committing the crime.

The Smithson court stated:

The purpose of expert testimony is to “assist the trier of fact in understanding the evidence, or in determining a fact issue ...,” § 90.702, Fla. Stat. (1985), but “expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.” Husky Indus., Inc. v. Black, 434 So.2d 988, 992 (Fla. 4th DCA 1983). The witness was qualified to render an opinion on security matters and on the defendant’s allegedly negligent security procedures, but not on the robbers’ motives for choosing Mr. Smithson as their target. The reasoning behind the cocon-spirators’ conduct is a matter beyond the scope of his expertise.

Smithson, 536 So.2d at 262 (citations omitted). L.B. points to this portion of the opinion in support of her argument that defendant’s expert testimony was inadmissible. L.B. contends that this Court already has determined that this type of evidence is not admissible in negligent security cases.

The Store distinguishes Smithson based on this Court’s statement that, “Although an expert witness is entitled to render an opinion premised on inadmissible evidence when the facts and data are the type reasonably relied on by experts on the subject, ... the witness may not serve merely as a conduit for the presentation of inadmissible evidence.” Id. at 261-62 (citations omitted). The Store argues that here the expert was not merely a conduit for inadmissible evidence because Powell testified that the assailant asked for L.B. a few days before the attack. Therefore, although McCrary relied on this statement to arrive at his opinion, the statement was not introduced solely through the expert’s testimony.

The Store’s reading of Smithson, however, is incorrect. This Court in Smithson further held that “[wjhere the expert’s actual opinion parallels that of the outside witness, then the outside witness should be produced to testify directly.” Id. at 262 (quoting Sikes v. Seaboard Coast Line R.R., 429 So.2d 1216, 1222 (Fla. 1st DCA 1983)). Powell testified at trial that the assailant asked for L.B. a few days prior to the attack. As such, it was unnecessary for the security expert to opine on this matter.

Moreover, as previously noted, admitting McCrary’s testimony on the issue of whether this was a victim targeted crime is contrary to this Court’s ruling in Smithson. As in Smithson, McCrary “was qualified to render an opinion on security matters and on the defendant’s allegedly negligent security procedures, but not on the [assailant’s] motives for choosing [L.B.] as [his] target. The reasoning behind the [assailant’s] conduct is a matter beyond the scope of his expertise.” Smithson, 536 So.2d at 262. Accordingly, based on the authority of Smithson, we find that the trial court abused its discretion in admitting McCrary’s opinion that this was an unforeseeable victim-targeted crime.

B. The trial court did not abuse its discretion in admitting the coworker’s testimony.

The final issue we address is whether the trial court abused its discretion in admitting Powell’s testimony. L.B. moved in limine to exclude, as hearsay, Powell’s testimony that three days prior to the incident the assailant came into the Store and asked if L.B. was working. The trial court agreed that the statement was hearsay because the Store was relying on the content of the question to prove that the assailant was in the Store specifically looking for L.B. However, the trial court permitted the testimony under section 90.803(3), Florida Statutes (2009), as a “state of mind” hearsay exception for statements offered to prove or explain subsequent conduct. At trial, Powell testified that:

A. Yes. I mentioned a gentleman who actually — he stood out because he did something that normal customers don’t do. He walked into the Store. He stopped in front of the ATM machine. The ATM machine is only three feet from the door. He asked me, was [L.B.] working, and I told him, “She doesn’t work this shift anymore,” and he made a face and turned around and walked out the door.

L.B. argues that the trial court abused its discretion in admitting Powell’s testimony of the assailant’s out-of-court inquiry because there was no statement of the assailant’s state of mind, or any intent, plan or motive, as required by section 90.803(3)(a) (2).

Section 90.803(3), Florida Statutes (2009), states:

(3) Then-existing mental, emotional, or physical condition.—

(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
(b) However, this subsection does not make admissible:
1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will.
2. A statement made under circumstances that indicate its lack of trustworthiness.

“Testimony concerning out-of-court statements of the declarant’s then existing mental or emotional condition, when offered to prove the truth of the matter asserted, are admissible under section 90.803(3).” Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 803.3a (2011 ed.). The only requirement is that the evidence be relevant to an issue in the case. Id.

The trial court relied upon D.M.L. v. State, 976 So.2d 670 (Fla. 2d DCA 2008), in reaching its conclusion that the testimony was admissible to prove the assailant’s state of mind. In that case, D.M.L. was found guilty of criminal mischief in connection with damage to Cory’s truck. The trial court excluded the testimony of D.M.L.’s girlfriend that she was on the phone with Cory’s girlfriend around the time of the offense, and that she heard Cory state in the background, “There he is.” The Second District reversed, finding not only that the testimony was relevant to D.M.L.’s defense, but that the testimony should have been admitted under section 90.803(3) because it proved Cory’s “state of mind, i.e., that he was looking for D.M.L., or to prove or explain Cory’s subsequent act of swinging the bat at D.M.L.” Id. at 674. We agree with the trial court and affirm on this issue.

Here, as in D.M.L., Powell’s statement that the assailant was in the Store asking for the victim three days before the assault was both relevant and admissible under section 90.803(3). First, the statement was relevant to the issue of foreseeability. Secondly, it was admissible under section 90.808(3) because it tends to prove the assailant’s subsequent action, i.e. in returning to the Store to look for or assault L.B. Consequently, the trial court did not abuse its discretion in admitting this evidence.

III. CONCLUSION

Accordingly, for the reasons stated above, we reverse the final judgment entered in favor of the Store, and remand for a new trial excluding McCrary’s testimony that the sexual assault was a “victim-targeted” crime. We affirm, however, the trial court’s ruling admitting Powell’s testimony.

Affirmed in part; reversed in part and remanded for a new trial.

ON MOTION FOR REHEARING

PER CURIAM.

The appellee’s motion for rehearing is denied.

CORTIÑAS and LAGOA, JJ., concur.

ROTHENBERG, J.

(dissenting).

Although I initially agreed with the majority’s decision to reverse the jury’s verdict in favor of the defendant, The Naked Truth, III, Inc. (“the store”), upon further reflection, I believe we erred. I would, therefore, grant rehearing and affirm the jury’s verdict.

The evidence introduced at trial is as follows. L.B., a sales clerk employed by the store, was working the “graveyard shift” on the night of December 25, 2007, when a man, who was later identified as Jose McCray (“the assailant”), entered the store, robbed L.B. at gunpoint, and raped her. It is undisputed that the establishment is well-lit, with regular and neon lighting throughout the store; there were sixteen cameras in operation at the time of the assault (some of the cameras record continuously, twenty-four hours a day, while others record when triggered by a motion sensor); there were signs inside the store informing patrons that they were being videotaped by cameras on the premises; the store utilized “drop safes” to limit the cash being held in the registers to an amount of less than $200; the sales clerks were able to view twelve of the sixteen cameras simultaneously via a monitor from a slightly elevated platform that also provided greater visibility of the store and its patrons; there was only one door (except for an emergency exit) which was locked; and patrons were only able to enter if the sales clerk “buzzed” them in. The store also contained several alarm systems, including a perimeter alarm, a fire alarm, a burglar alarm, police alarms, and panic alarms that could be triggered by pressing a fixed alarm button or activated remotely. Although L.B. was aware of these measures, and she was trained in how to use them, she testified that she did not have an opportunity to activate any of the alarms during the attack.

L.B. filed a complaint against the store claiming negligent security. In support of her claim, L.B. offered the expert testimony of Rosemary Erickson, Ph.D., who opined that this was a random but foreseeable crime of opportunity that could have been prevented if the store had utilized additional security measures, including employing an armed security guard and constructing a bullet proof barrier between the sales clerk and the store’s patrons. Dr. Erickson testified that because the store did not have these additional security measures in place, the store was negligent.

The store called several witnesses in direct response to these claims: another store employee, Xavier Powell (“Powell”); the lead detective; and an expert, Gregg McCrary. Powell testified as follows. The assailant entered the store three days prior to the assault on L.B. while Powell was working the late night shift. The assailant, who was not a regular customer, stood out because he did not act like a normal customer. The assailant merely walked into the store, asked for L.B. by name, and when he was told that she did not work that shift anymore “he made a face and turned around and walked out the door” and immediately exited the store. Unlike normal customers, the assailant did not “browse” around the store; did not look at any videos or purchase anything; and the entire “process” took twenty to thirty seconds. Further, when asked to describe the look on the assailant’s face when he was told L.B. no longer worked that shift, Powell testified the assailant appeared upset and disappointed.

Although the lead detective provided a detailed account of his investigation, the relevant portion of his testimony for purposes of this appeal is that the assailant lived in Broward County, twenty-two miles from the store.

The store’s security expert, Gregg McCrary, was offered and qualified by the trial court to render expert opinions on law enforcement and security matters. McCrary worked as an FBI agent for twenty-five years. He worked in the FBI’s Behavioral Science Unit for eight years; provided training and operations support; and trained FBI field agents in the investigation of sex crimes and violent crimes. During his tenure with the FBI, McCrary specialized in violent crimes, and based on his research, training, and experience, he became an expert in sex crimes and sex crime investigations. McCrary’s research was focused on the etiology of these crimes — to learn how and why sex crimes are committed in order to prevent them from being committed in the future. His research included interviewing killers, rapists, and child molesters, and studying the crimes they had committed.

McCrary’s expertise in the fields of violent crimes, sexual crimes, and crime prevention are well documented. He has taught at various law enforcement academies, including the National Police Academy of Spain, the National Police Academy of Portugal, the French National Police, and Scotland Yard. Since his retirement from the FBI, he has worked as a consultant, trained approximately 200 of the Fortune 500 companies on the prevention of workplace violence, trained companies on the prevention of robberies and other violent crimes, and presently teaches graduate level courses in forensic psychology and other criminal justice subjects at three national universities.

McCrary disagreed with the opinion rendered by L.B.’s expert — that the robbery and sexual assault of L.B. was a random act that was foreseeable and preventable, and that the store was therefore negligent by failing to provide additional security measures. McCrary testified that the evidence suggests L.B. was specifically targeted by the assailant, and victim-targeted crimes are difficult to prevent. McCrary explained that victim-targeted crimes are “some of the most difficult crimes to prevent” because the offender is more prone to take greater risks to reach the targeted victim.

In support of his conclusion, McCrary noted that the assailant came into the store three days before the assault, specifically asking for L.B. by name, and when he was told that L.B. no longer worked that shift he became upset, looked disappointed, and left the store without looking at or purchasing any items. McCrary also noted that the assailant did not live near the store — he lived in Broward County, twenty-two miles from the store. Importantly, the information McCrary relied on in forming his opinion that this was a victim-targeted crime was based on evidence admitted at trial, which the majority concedes was properly introduced.

McCrary testified that if this was a victim-targeted crime, it would have been difficult to prevent, and he provided as an example the shooting of Ronald Reagan in public by John Hinckley, despite the security measures in place to protect President Reagan. McCrary noted that in the instant case, the assailant had not been deterred by the locked door, bright lighting, cameras, monitors, signs warning patrons that they were being recorded, and the fact that there were other customers in the store at the time. Although the assailant may not have been aware that there were two other customers in the store when he first began the assault, when he later became aware that he and L.B. were not alone, he continued to assault L.B.

MY DISAGREEMENT WITH THE MAJORITY OPINION

The majority bases its reversal of the jury’s verdict on its conclusion that McCrary’s testimony runs afoul of this Court’s ruling in Smithson v. V.M.S. Realty, Inc., 536 So.2d 260 (Fla. 3d DCA 1988). Although the majority opinion sheds little, if any, light as to how specifically McCrary’s testimony conflicts with Smithson., it appears the majority’s decision is based on its conclusion that, although McCrary was qualified to render an opinion on security matters and whether the store was negligent, he could not opine “on the assailant’s motives for choosing L.B. as his target.” The problem with this conclusion is that Smithson does not hold that a witness may never be qualified to render an opinion regai’ding an assailant’s motive, but more importantly, McCrary did not even attempt to testify as to the assailant’s motive in committing these crimes. In fact, McCrary specifically stated that he was “not a mind reader” and he had no idea what the assailant’s motive was in targeting and attacking L.B.

A. Smithson

In Smithson, this Court found that the trial court erred in permitting the shopping mall owner’s expert to offer testimony regarding the robbers’ motives for committing the robbery and the murder of the victim. This Court’s conclusion was based on two findings: (1) the expert was not qualified to testify as to the perpetrators’ motives for choosing the victim as their target; and (2) the expert’s opinion regarding motive was based on his interview with the perpetrators, who did not testify at the trial, and which was recounted by the expert in his presentation to the jury. In sum, this Court found the expert was not qualified to testify as to motive and that he was being used as a conduit for the introduction of inadmissible hearsay evidence.

Smithson is inapplicable to the instant appeal. McCrary did not opine as to the assailant’s motive for targeting L.B. He stated that he was unqualified to render such an opinion. He also was not used as a conduit for inadmissible hearsay evidence. As already noted, L.B.’s co-worker, Powell, testified that the assailant came into the store three days prior to the assault looking and asking for L.B. by name, and when the assailant was told L.B. no longer worked that shift, he looked upset and disappointed and immediately left the store. Powell’s testimony, coupled with the lead detective’s testimony that the assailant lived twenty-two miles from the store, the evidence that the assailant returned three days after inquiring about L.B., and the fact that the assailant did not simply commit a robbery, but raped the very person he had inquired about, suggested this was a victim-targeted crime— evidence the majority concedes was properly admitted at trial.

Thus, because McCrary did not offer any opinion as to the assailant’s motive in targeting L.B. or in committing the crimes, and McCrary was not used as a conduit for the introduction of inadmissible evidence, the admission of McCrary’s testimony does not conflict with any holding, finding, or ruling in Smithson. McCrary merely relied on the evidence properly admitted at trial in forming his opinions that: (1) these were victim-targeted crimes; (2) victim-targeted crimes are difficult to prevent; and (3) the store was not negligent in failing to provide additional security measures to protect its employees.

B. McCrary was qualified to render the opinions he gave

Although McCrary did not testify as to the assailant’s motive, as the majority incorrectly states, he did testify that in his expert opinion, he believed these were victim-targeted crimes; victim-targeted crimes are difficult to prevent; and the store was not negligent in failing to provide additional security measures to protect its employees. The issue, therefore, is whether McCrary was qualified to render these opinions.

The standard of review for the trial court’s decision concerning the qualification of an expert witness and the scope of his testimony is abuse of discretion. See Cnty. of Volusia v. Kemp, 764 So.2d 770, 773 (Fla. 5th DCA 2000); see also Hinojosa v. State, 857 So.2d 308, 309 (Fla. 2d DCA 2003) (“A trial court has wide discretion in areas concerning the admissibility of evidence, and such rulings will not be disturbed absent an abuse of discretion.”). The record demonstrates the trial court did not abuse its discretion.

As already detailed earlier, McCrary had over twenty-five years of training and experience working with the FBI in the area of sexual crimes and other violent crimes. He not only served for many years as a field agent in the investigation of these types of crimes, he specialized and became an expert within the department as to these types of crimes. McCrary did extensive research on the etiology of sex crimes and other violent crimes in order to learn how and why they are committed in order to prevent future commission of these traumatic crimes. In addition to these qualifications, McCrary has taught at a number of police academies here and abroad, including Scotland Yard, and he has consulted with and trained hundreds of companies, including 200 of the Fortune 500 companies, on the prevention of workplace violence, including robberies and other violent crimes. McCrary currently teaches graduate level courses in forensic psychology and another criminal justice subject at three national universities.

Based on McCrary’s extensive experience, as already detailed, no one could reasonably conclude that McCrary was unqualified to render an opinion as to whether, based on the evidence introduced at trial, these crimes were likely victim-targeted crimes; victim-targeted crimes are difficult to prevent; and whether the security measures employed by the store were reasonable and adequate. Thus, the trial court did not abuse its discretion in permitting McCrary to testify regarding these issues.

C. If McCrary’s testimony was improper, L.B.’s expert’s testimony was improper

L.B.’s expert testified that the attack upon L.B. was foreseeable, completely pre-veritable, and L.B. was the victim of a random, opportunistic sexual assault. L.B.’s expert, a forensic sociologist, who works with OSHA in developing security guidelines for late-night retail establishments, was no more qualified to render an opinion that this was a random, opportunistic, preventable attack, than McCrary was to render an opinion that this was a victim-targeted, difficult to prevent, attack. They were both also qualified to testify regarding the security measures taken by the store, whether the measures were reasonable and adequate, and whether the store was negligent in failing to take additional precautions to protect its employees.

When considering L.B.’s motion to limit McCrary’s testimony, the trial court specifically inquired as to what L.B. expected her expert to testify to, and determined that the testimony was admissible because McCrary was qualified to render opinions on security matters and procedures; he did not intend to testify as to the assailant’s motives; his testimony was being used to refute the testimony of L.B.’s expert; and McCrary’s testimony was not based on inadmissible hearsay. Thus, the record and the trial court’s ruling reflect that what we have here are two qualified experts who offered conflicting opinions after considering the same admissible evidence, thus presenting a question for resolution by the jury, which resolved the question in the store’s favor.

CONCLUSION

The premise upon which the majority bases its reversal — that the store’s expert, McCrary, improperly testified as to the assailant’s motive for attacking L.B. — is incorrect. The record conclusively refutes this finding. McCrary never testified as to motive, and, in fact, admitted that he was unqualified to opine as to motive. McCrary, however, did, offer testimony to refute L.B.’s expert’s opinion that the attack upon L.B. was a random, opportunistic attack that was preventable, and that the store was negligent in failing to provide additional security measures. McCrary testified that based on the evidence he reviewed, and which was properly admitted at trial through other witnesses, he believed the attack on L.B. was a victim-targeted assault that was difficult to prevent; the security measures in place at the store were reasonable and adequate; and the store was not negligent. No abuse of discretion has been shown because the qualification and scope of an expert lies within the sound discretion of the trial court, McCrary was clearly qualified to render the opinions he offered, and McCrary’s testimony differed from that of L.B.’s expert’s testimony only as to the conclusions he reached. Thus, the jury’s verdict should be honored, and the judgment should be affirmed.

I, therefore, respectfully dissent.

ON MOTION FOR REHEARING EN BANC

Before WELLS, C.J., and SHEPHERD, SUAREZ, CORTINAS, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ and LOGUE, JJ.

PER CURIAM.

The appellee’s motion for rehearing en banc is denied. 
      
      . Generally, admission of evidence is within the discretion of the trial court, and the trial court's ruling will not be disturbed on appeal absence a clear showing of an abuse of discretion. See, e.g., Davis v. Caterpillar, Inc., 787 So.2d 894, 897 (Fla. 3d DCA 2001); Cnty. of Volusia v. Kemp, 764 So.2d 770, 773 (Fla. 5th DCA 2000).
     
      
      . Additionally, a review of case law in other jurisdictions reveals that criminal behavior testimony in negligent security cases is generally disfavored. See Birge v. Dollar Gen. Corp., 2006 WL 5175758 (W.D.Tenn. Sept.28, 2006); Eghbalpour v. BP W. Coast Prods., 2007 WL 841264 (Cal.App. 2 Dist.2007); Vittengl v. Fox, 967 S.W.2d 269 (Mo.Ct.App.1998), and cases cited therein. These courts have given various reasons for excluding this evidence, including; lack of expertise, Egh-balpour, at *2 ("Mr. McGoey is a security expert, not an expert in the inner workings of the criminal mind.”); confusing or misleading to jury and speculative, Vittengl, 967 S.W.2d at 279 ("Expert testimony may well confuse or mislead a juiy when the expert is offering conclusions about a matter which is not a proper subject of expert testimony. In such a case, the jury may be swayed by the speculation of the witness.”); and lack of evidence of reliable methodology, Birge, 2006 WL 5175758.
     