          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-2825
                  _____________________________

THURSTON MCBRIDE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                           August 7, 2018


PER CURIAM.

     Appellant, Thurston McBride, appeals the trial court’s Order
Denying Motion for Post-Conviction Relief, challenging the trial
court’s ruling on four claims of ineffective assistance of counsel.
For the reasons that follow, we agree with Appellant that he is
entitled to reversal as to his claim that trial counsel was ineffective
in failing to investigate and introduce into evidence the victim’s
school attendance records. We otherwise affirm.

     Appellant was tried and found guilty of sexual battery on a
child under twelve by a defendant eighteen years of age or older.
The victim, who was thirteen years of age at the time of trial,
testified that Appellant, who had been married to the victim’s
godmother, sexually battered him on one occasion while Appellant
lived with the victim, his godmother, and his godsister. The victim
further testified that he did not know when the abuse occurred.
When the victim was eleven, he disclosed the abuse to his mother,
with whom he was then living, and a child protection team
member. He testified that both his godsister and godmother were
aware of the abuse, that his godsister tried to get into his room
when the abuse was occurring, and that she subsequently told
Appellant to “get out.” When asked if he started skipping school
after the incident, the victim affirmatively responded. When asked
why, he replied, “Because I was just afraid of the world.” During
his interview with a child protection team member, which was
played before the jury, the victim claimed that the incident
occurred when he was five years of age and that his godsister
picked his lock when the abuse was occurring and began arguing
with Appellant. When asked how he felt about his godmother’s
advice to let God handle it, the victim stated, “I just went to my
room. I didn’t go to school.” When asked how long he did not go to
school for, he replied, “Well, I skipped school for two weeks.” He
further stated, “I used to get on the bus to go to school. When I got
to school, I used to leave.” When asked if anyone ever found out
about his skipping school, he replied, “No.” When asked what got
him to return to school, he stated, “Because I was thinking that I
was never going to get an education and I just need to get over it.”
He further stated during his interview that Appellant returned to
his home “[l]ike a year . . . later” when the victim was “like six or
seven.” After stating that Appellant had previously whipped him
and physically abused him with his fists, the victim claimed that
Appellant, when he returned to his home, abused him so bad that
he could not stand. The victim claimed that he did not go to school
for two weeks because he was in the hospital. The State did not
present any hospital records to verify this testimony.

     During the defense’s case, both the victim’s godsister and
godmother testified that they knew nothing about the alleged
abuse. The victim’s godsister denied picking the victim’s lock or
arguing with Appellant, and both women testified that they would
have called the police had they known about any abuse. The
victim’s godmother further testified that she last saw Appellant in
2004. During his closing argument, trial counsel stated in part,
“Now, [the victim] told you on – he told Ms. Lustgarten at CPT that
right after the incident, he would skip school as a five year old. He

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would skip school. But he decided to go back to school because he
thought he needed to get an education. As a five year old, he made
that conscious decision.” After the jury found Appellant guilty as
charged, the trial court sentenced him to a mandatory life
sentence. In his direct appeal, Appellant argued that the trial
court reversibly erred in allowing the State to cross-examine him
and the victim’s godmother concerning inadmissible collateral
crime evidence. We per curiam affirmed Appellant’s conviction
and sentence. McBride v. State, 123 So. 3d 564 (Fla. 1st DCA
2013).

    In his Second Amended Motion for Postconviction Relief,
Appellant raised nine claims, only four of which are at issue in this
appeal and only one of which merits discussion. In Ground 1,
Appellant alleged that trial counsel was ineffective in failing to
investigate and introduce into evidence the victim’s school
attendance records.

     During the evidentiary hearing, postconviction counsel moved
the victim’s school records into evidence without objection. The
records consisted of the victim’s elementary school “Pupil Progress
Report Cards (K through 2nd grade).” The records show that the
victim had one to three absences in various quarters over the three
years. Trial counsel testified that he believed he had enough
evidence to impeach the victim at trial and that he unsuccessfully
tried to get in touch with the victim’s teacher. When asked if he
did not seek the school records because he did not think they were
that big of an issue, he replied, “Again, I don’t remember here
making a tactical decision one way or the other about the school
records.”

     In the Order Denying Motion for Post-Conviction Relief, the
trial court noted in part as to Ground 1, “There was only one
mention of the victim missing school and that was the victim’s
statement during the CPT interview . . . . Based on all of the
evidence, the Court finds that counsel’s representation did not fall
below an objective standard of reasonableness. Additionally, the
Court finds [Appellant] has failed to show any prejudice.”
Appellant moved for a rehearing, arguing in part that, contrary to
the trial court’s finding, the fact that the victim missed school was


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mentioned on more than one occasion at trial. The trial court
denied the motion without comment. This appeal followed.

      In order to establish a successful ineffective assistance of
counsel claim, a defendant must show that counsel’s actions or
omissions were deficient and that the deficiency so affected the
proceeding      that     confidence      in    the      outcome      is
undermined. Johnston v. State, 70 So. 3d 472, 477 (Fla. 2011)
(citing Strickland v. Washington, 466 U.S. 668 (1984)). When
assessing alleged deficiency, a court must determine whether the
identified acts or omissions were outside the wide range of
professionally competent assistance. Johnston, 70 So. 3d at 477.
There is a strong presumption that counsel’s actions were
reasonable. Id. “‘[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been considered
and rejected and counsel’s decision was reasonable under the
norms of professional conduct.’” Id. (Citation omitted). “[C]ourts
should make ‘every effort . . . to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time.’” Pennington v. State, 34 So. 3d 151, 155 (Fla. 1st DCA
2010) (quoting Evans v. State, 975 So. 2d 1035, 1043 (Fla. 2007)).
The prejudice requirement is satisfied if there is a reasonable
probability that but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Id. A reasonable
probability is “one sufficient to undermine this Court’s confidence
in the outcome of the trial . . . .” Simmons v. State, 105 So. 3d 475,
498 (Fla. 2012). In reviewing a decision of the postconviction court
denying claims after an evidentiary hearing, an appellate court
reviews the trial court’s findings of fact under the competent,
substantial evidence standard of review. Reynolds v. State, 99 So.
3d 459, 486 (Fla. 2012). A trial court’s application of the law to the
facts is reviewed de novo. Id.

     Appellant is correct that the trial court’s finding that the
victim’s act of skipping school was only mentioned once during
trial is not supported by competent, substantial evidence. While,
as the trial court set forth, the victim stated during his child
protection team statement that he skipped school after the sexual
abuse, he was also asked during trial whether he skipped school
after the incident. The victim affirmatively responded before

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testifying that he was “just afraid of the world.” Moreover, the
victim claimed during his interview that he skipped school for two
weeks approximately a year after the sexual abuse as a result of
Appellant’s physical abuse.

     As for trial counsel’s alleged ineffectiveness, although counsel
testified during the evidentiary hearing that he believed he had
sufficient evidence with which to impeach the victim’s credibility,
he also testified that he unsuccessfully sought to contact the
victim’s teacher. Indeed, trial counsel thought it important enough
to mention the victim’s claim of skipping school during his closing
argument at trial and to question a five-year-old’s ability to make
the conscious decision to return to school based on his belief that
he needed an education. Yet, had trial counsel obtained the
victim’s school records, the victim’s claim that he skipped school
following the abuse could have been discredited rather than it
simply being implied during the defense’s closing argument that
the victim’s claim was unreasonable and fabricated. Not only is
this a situation where the only evidence against Appellant came
from the victim, but the victim claimed to have skipped school as
a direct result of the sexual abuse. Therefore, as Appellant asserts,
whether the victim skipped school was a pivotal issue in this case.

     Moreover, to the extent that the State attempts on appeal to
characterize trial counsel’s failure to acquire the victim’s school
records as a tactical decision, trial counsel offered no such
testimony. Instead, he testified that he did not recall making a
tactical decision one way or the other about the school records. For
these reasons, we agree with Appellant that trial counsel’s failure
to investigate the victim’s claims about skipping school and to
obtain the victim’s school records was deficient. See Jennings v.
State, 123 So. 3d 1101, 1118 (Fla. 2013)(holding that trial counsel
was deficient in failing to adequately investigate and impeach a
State witness where “counsel deprived the jury of the ability to
make a fully informed decision about [the witness’s] credibility,”
noting that there was no suggestion that trial counsel had any
strategic reason to limit his cross-examination of the witness, and
setting forth, “[G]iven the available impeachment evidence and the
incriminating nature of [the witness’s] testimony, trial counsel’s
failure to adequately prepare for and cross-examine [the witness]
was deficient performance”).

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     As for whether Appellant was prejudiced by counsel’s
deficiency, the records showed that, contrary to the victim’s claim
that he skipped school for two weeks, he missed at most one to
three days per quarter for the years in question. Given that the
victim’s credibility was the key issue in this case, we find that the
failure to investigate and obtain the victim’s school records is
sufficient to undermine confidence in the outcome of the trial. We,
therefore, conclude that Appellant has demonstrated the requisite
prejudice to obtain postconviction relief. Cf. id. at 1120 (holding
that trial counsel’s deficiency did not prejudice the appellant
where the statements at issue did not represent the only evidence
against the appellant and where the State presented considerable
other evidence of the appellant’s guilt such that trial counsel’s
failure to impeach a State witness did not undermine confidence
in the jury’s guilty verdict).

    Accordingly, we reverse the order on appeal as to Ground 1
and remand for a new trial.

    AFFIRMED in part, REVERSED in part, and REMANDED for a
new trial.

WOLF, LEWIS, and RAY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Rachael E. Reese of O'Brien Hatfield, P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.




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