Davis v. State, No. 89-2118

• Court: Court of Appeal of Florida (US)
• Writing for the Court: WOLF
• Citation: 569 So.2d 1317
• Parties: 15 Fla. L. Weekly D2739 Louis D. DAVIS, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 89-2118
• Decision Date: 08 November 1990

Page 1317

569 So.2d 1317 15 Fla. L. Weekly D2739 Louis D. DAVIS, Appellant,
v.
STATE of Florida, Appellee. No. 89-2118. District Court of Appeal of Florida,
First District. Nov. 8, 1990.

Henry R. Barksdale of Henry R. Barksdale, P.A., Milton, for appellant.

Robert A. Butterworth, Atty. Gen., Cynthia Shaw, Asst. Atty. Gen., Tallahassee, for appellee.

WOLF, Judge.

This is an appeal from a judgment and sentence finding the appellant guilty of four counts of sexual battery on a child under 12 years of age, in violation of section 794.011(2), Florida Statutes, and of one count of lewd and lascivious act in the presence of a child, in violation of section 800.04, Florida Statutes. The appellant raises three issues on appeal, two of which merit discussion: 1) Whether the trial court erred by allowing the use of hearsay statements of child victims under section 90.803(23), Florida Statutes, without considering indicia of unreliability as well as indicia of reliability; and 2) whether there was sufficient evidence to support the element of penetration in regard to two counts of sexual battery by vaginal digital penetration. We affirm.

On appeal, Davis argues that while the trial court enumerated the indicia of reliability of the hearsay statements as provided in section 90.803(23), Florida Statutes, the court did not address the indications of unreliability raised by the defense.

Section 90.803(23)(c), Florida Statutes, requires only that "the court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection." There is no statutory requirement that findings necessarily reflect a balance of indicia of unreliability with indicia of reliability. The appellant cites Ehrhardt, Florida Evidence, section 803.23(a) (2d ed. Supp.1989), to support his argument. Ehrhardt indicates that the statutory provision regarding findings on the record "envisions that the court will set forth the specific reasons that the court relied upon as well as why the reasons indicating a lack of reliability were discounted." Ehrhardt,

Page 1318

Florida Evidence (2d ed. Supp.1989) (emphasis added). This portion of Ehrhardt is quoted in Salter v. State, 500 So.2d 184, 185 (Fla. 1st DCA 1986), and Griffin v. State, 526 So.2d 752 (Fla. 1st DCA 1988). It is noteworthy, however, that neither of these cases nor Ehrhardt's Evidence elaborates further. ¹ Although it may be useful in certain instances to have findings weighed in such a manner, we do not find it to be required by Florida law.

During the court proceedings to determine the reliability of hearsay statements, the court made the following findings on the record:

The court finds the mental and physical age of these child witnesses are very young and tender, and the children are immature and incapable of making an intelligent narration to the jury. But the court is satisfied that because of the nature of the abuse and the duration of the abuse which was revealed or disclosed within a short period after the time allegedly it occurred, and because of the opportunity of the defendant to be in the presence of the children to commit such alleged acts and his relationship to the children, the court finds that there are sufficient indicia of reliability because these--some of these allegations [or] purported acts are confirmed by at least one eyewitness ... [observations] independent of any reports to the mother ... independent disclosures made by [the victims] ... medical corroboration of sexual trauma.... [T]hese matters and allegations are interlocking and reinforce each other. [There were] different families involved and the hearsay statements were made to a number of people, not merely to the two mothers involved.... [T]he court finds that because of these reports which were made independent of each other, but within recent proximity...