Burgess v. State
| Citation | 324 So.3d 582 |
| Decision Date | 16 July 2021 |
| Docket Number | No. 1D20-170,1D20-170 |
| Parties | Sylvester Jerome BURGESS, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Andrea Flynn Mogensen, Special Assistant Public Defender, Sarasota, for Appellant.
Ashley Moody, Attorney General, Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
Appellant was convicted of sexual battery of a child under twelve by a person eighteen or older, and he was sentenced to life in prison. On appeal, he argues the trial court erred in admitting collateral-crime evidence and child-hearsay statements. We affirm.
The State filed a notice of intent to offer the victim's child-hearsay evidence at trial, and the trial court held a hearing. At the child-hearsay hearing, the victim testified that she knew the difference between a truth and a lie and acknowledged that she was supposed to tell the truth. She testified that when she was in the fourth grade, there were a few incidents that happened between her and Appellant either in the kitchen or her bedroom. She testified that in her bedroom, Appellant put his fingers on and in her vagina, licked her vagina, told her to put his penis in her mouth, and tried to put his penis inside her vagina. The victim also testified that on another occasion, Appellant put his fingers inside her vagina in the kitchen. The victim testified that Appellant threatened to "spank" her if she told anyone about the incidents.
At the child-hearsay hearing, Sergeant Phillips testified that the victim told him Appellant inappropriately touched her several times. The victim told him that she woke up with Appellant on top of her, kissing her, and touching her. Sergeant Phillips asked the victim whether Appellant touched her outside or inside of her clothes. He also asked her whether Appellant touched her vagina with his hands, his mouth, or his penis, and if he penetrated her. The victim replied that Appellant kissed her and then penetrated her vagina with his fingers and his penis. The victim also stated that she was afraid to go home because she did not want to be around Appellant. Sergeant Phillips testified that he never suggested to the victim that she had been sexually abused by Appellant.
After the child-hearsay hearing, the trial court entered a written order allowing the victim's hearsay statements to Sergeant Phillips.
The State also filed a notice of intent to offer evidence of other crimes, wrongs, or acts, alleging that Appellant committed other acts that were relevant and similar to the act charged in the present case. The trial court held a hearing on the collateral-crime evidence where multiple witnesses testified. L.R., the collateral-crime victim, recounted staying with one of her mother's friends in 2006. While she was there, Appellant told her to come to the bedroom where he touched her vagina with his hands. Appellant also touched her with his penis and put it inside her vagina. She stated that she knew what a condom was, but Appellant did not use one. L.R. told Appellant to stop while they were engaging in sexual intercourse. After the incident, she went to the hospital. She was about twenty years old at the time, but suffered from a mental disability
.
A witness staying with L.R. testified that their caretaker went to the store and left L.R. and Appellant alone. The witness testified that he went to the bathroom, and when he came back, L.R. was crying. The witness told the caretaker that L.R. was crying, and the caretaker called the police.
L.R.'s mother testified that in 2006, she left her daughter with her neighbor. The neighbor later called and told her that Appellant had touched L.R. During the phone call, she could hear L.R. in the background "hollering and crying." L.R.'s mother met her daughter at the hospital, and L.R. told her mother that Appellant had touched her. L.R.'s mother testified that L.R. suffers from an unknown mental disability
.
A DNA analyst with the Florida Department of Law Enforcement (FDLE) developed a foreign DNA profile from L.R.'s underwear. After comparing the foreign DNA from L.R.'s underwear with a buccal swab collected from Appellant, the analyst determined that there was "no discrepancy between the two" samples.
The trial court entered a written order granting the State's request to introduce the collateral-crime evidence.
Following the pretrial hearings and orders, the case went to trial. During trial, both Sergeant Phillips and the victim recounted their testimony given during the child-hearsay hearing. The victim again testified that Appellant touched her vagina with his hands and his mouth and attempted to penetrate her vagina with his penis. The State also introduced the victim's forensic interview, and it was played for the jury. The victim's forensic interview was consistent with the victim's testimony at trial and her testimony at the child-hearsay hearing. During the interview, the victim also stated that Appellant "did not use protection" because "there were no wrappers around."
An FDLE analyst testified that a complete Y-STR profile was found on the victim's vaginal swabs, and Appellant or someone from Appellant's male lineage were possible sources of the DNA.
The remainder of the State's case focused on the collateral-crime evidence. Before the State presented the evidence, the trial court read a cautionary instruction to the jury stating that the evidence concerning other crimes, wrongs, or acts allegedly committed by Appellant was to be considered only for the purpose of corroborating the testimony of the victim.
L.R., the collateral-crime victim, recounted the testimony she gave at the collateral-crime hearing. The DNA analyst from the collateral-crime hearing also testified. He stated that the foreign DNA found in L.R.'s underwear matched Appellant's DNA and was 1.4 billion times more likely to be from Appellant than someone else.
Following the collateral-crime witnesses, Appellant testified on his own behalf. He testified that he stayed with the victim and her family for four days after Christmas. Appellant testified that he saw the victim the morning of January 2, 2018, when she was getting ready for school. He testified she was fully dressed and going to the kitchen. Appellant denied the victim's allegations of sexual misconduct.
Regarding the collateral-crime evidence, Appellant testified that he knew L.R. in 2006 and had sex with her. After his girlfriend at the time went to the store, he entered L.R.'s room to see if she was hungry. He testified that L.R.'s foot touched his penis, and she invited him to have sex with her in his girlfriend's bed, which they did. Appellant stated he had no reason to believe that L.R. was less than twenty years old or had a mental disability
. Eventually, L.R. told Appellant's girlfriend that the two of them had sex. Appellant was upset and left. He was later arrested, but the case was dismissed. Appellant stated that because L.R. never told him to stop, he believed the act was consensual.
Appellant was found guilty of sexual battery on a child under twelve by a person eighteen or older with the special findings of sexual penetration and sexual contact and sentenced to life in prison. Appellant was also designated a sexual predator.
Appellant challenges the reliability of the victim's statements to Sergeant Phillips where she initially disclosed the sexual abuse. We review a trial court's finding that a child victim's hearsay statements are reliable and come from a trustworthy source for an abuse of discretion. Small v. State , 179 So. 3d 421, 424 (Fla. 1st DCA 2015).
Section 90.803(23) of the Florida Evidence Code provides a hearsay exception for the statements of a child victim. For a hearsay statement to be admissible, the source of the information through which the statement was reported must be trustworthy and the time, content, and circumstances of the statement must reflect that the statement is reliable. State v. Townsend , 635 So. 2d 949, 954 (Fla. 1994).
Factors that a trial court may consider when determining whether a statement is reliable include:
[T]he statement's spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation.
Id. at 957–58. "A trial court must make specific findings of fact on the record as to the basis of its ruling." Cabrera v. State , 206 So. 3d 768, 772 (Fla. 1st DCA 2016) ; G.H. v. State , 896 So. 2d 833, 835 (Fla. 1st DCA 2005) ().
Here, the trial court found: (1) the statements were general in nature; (2) the victim's uncomfortable demeanor was logical given the nature of the disclosure and the surprise of the inquiry; (3) the disclosure occurred only hours after the incident; (4) this was the first information provided to someone who asked about the incident; (5) there was no indication that the victim had any ill will toward Appellant or a motive to fabricate the disclosure; (6) given the close proximity to the incident the victim was likely under the emotional effects of the incident; (7) the language used by the victim was appropriate for the circumstances she was describing and her age; and (8) no evidence suggested that the victim was improperly influenced to make the disclosure. The trial court provided...
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