Gilbert v. State
| Decision Date | 13 August 2021 |
| Docket Number | No. 2D19-1622,2D19-1622 |
| Citation | 324 So.3d 598 |
| Parties | John Walter GILBERT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Keith W. Upson, Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee; Allison C. Heim, Assistant Attorney General, Tampa; and Helene S. Parnes, Senior Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
IT IS ORDERED that the motion for rehearing is granted to the extent that the opinion dated June 11, 2021, is withdrawn and the attached opinion is substituted therefor.
No further motions for rehearing will be entertained in this appeal.
In this case, a child accused her adult relative of sexual misconduct. A jury believed the child and convicted John Gilbert of sexual activity with a child by a person in familial or custodial authority. Because the trial was capably run and the evidence presented was not so tainted that the jury could not determine whether (or not) to believe the victim's version of the operative events, we affirm. We recognize that this case is a close call on evidentiary issues, and we write to explain our ruling.
When the victim was a teenager, an estranged adult male relative (Mr. Gilbert)—with whom she had almost no prior contact—sent her a "friend request" on Facebook. The victim was living with other relatives, at the time, but had hopped between family members’ homes throughout her childhood because her parents had been out of the picture. Eventually, the relatives with whom the victim was then living allowed her to move in with Mr. Gilbert.
Mr. Gilbert had been living by himself. After the victim moved in, the two shared Mr. Gilbert's home alone. The victim's boyfriend sometimes spent weekends at Mr. Gilbert's home, but the victim otherwise began to settle into her new life with Mr. Gilbert, who got her a puppy and began fixing up a car for her.
After a few months of living with Mr. Gilbert, the victim told her boyfriend that Mr. Gilbert was sexually abusing her. Within a day, a relative came to pick the victim up. The abuse was reported to the police. The victim confronted Mr. Gilbert about the abuse over Facebook Messenger and took screenshots of their conversation. The relative bought the victim a journal, and the victim wrote down what had happened. The victim used and read from that journal throughout her subsequent interview with the Child Protection Team.
Thereafter, the State charged Mr. Gilbert with sexual activity with a child in violation of section 794.011(8)(b), Florida Statutes (2019). At trial, the State supported the abuse allegations with the Facebook message screenshots, a video of the victim's interview with the Child Protection Team, and the victim's journal. Mr. Gilbert's defense principally focused on his theory that the victim fabricated the abuse—after he and the victim had a fight—to convince her other relatives to let her move back to their home. Throughout the trial, defense counsel tried to prove this motive and that the victim had a history of lying. The jury believed the victim and convicted Mr. Gilbert as charged.
Mr. Gilbert challenges the trial court's admission of the Facebook message screenshots and the victim's journal into evidence. Mr. Gilbert also attacks two comments in the State's closing argument as fundamental error. Lastly, Mr. Gilbert argues that the cumulative effect of these claimed errors necessitates a new trial. We disagree and affirm in all respects.
Mr. Gilbert first argues, as he did below, that the Facebook message screenshots were inadmissible as unauthenticated hearsay. Before trial, Mr. Gilbert moved to exclude the messages, claiming they could have been altered because the State's exhibit was the victim's personal screenshot of the messages. He also contended that the State did not verify the messages by a subpoena to Facebook or a cell phone extraction. The trial court admitted the screenshots after the victim testified that they accurately depicted what was on her Facebook Messenger.
"We review a trial court's evidentiary decision for abuse of discretion, understanding that its discretion is limited by the rules of evidence and controlling decisions interpreting them." Bullington v. State , 311 So. 3d 102, 107 (Fla. 2d DCA 2020). Section 90.901, Florida Statutes (2019), requires authentication "sufficient to support a finding that the matter in question is what its proponent claims." Because "the ultimate determination of the authenticity of the evidence is a question for the fact-finder," the supreme court has "indicated that authentication for the purpose of admission is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic." Mullens v. State , 197 So. 3d 16, 25 (Fla. 2016).
While neither we nor the supreme court have ruled on the proper authentication of Facebook messages, "communications" generally can be "authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances." State v. Torres , 304 So. 3d 781, 784 (Fla. 4th DCA 2020). And "[t]he case law regarding authentication of electronic communications is evolving." Id. at 783.
Torres involved the authentication of messages from another social media platform, Kik. The Fourth District ruled that "the contents and distinctive characteristics of the messages, ‘taken in conjunction with the circumstances’ " were sufficient to authenticate a screenshot of Kik messages between the victim and the defendant. Id. at 784–85. In concluding that the State had made a prima facie case for authentication, the Torres court noted that (1) the defendant and the victim had an "extensive history of texting" over Kik; (2) the defendant's nickname was listed on the screenshots of the messages; and (3) the parties "referenced facts known only to the defendant and the victim" (a gift the defendant gave the victim and a place where the defendant sexually abused the victim) in the messages. Id. at 784.
Torres is on all fours with this case. The victim and her relative testified to Mr. Gilbert and the victim's "extensive history" of communicating over Facebook Messenger. Mr. Gilbert's real name (as opposed to a nickname) and his profile picture were included in the screenshots, an identification scenario stronger than that featured in Torres . Cf. id. at 782 (). Even more, the victim and Mr. Gilbert referenced "facts only known by" them in the messages—the car that Mr. Gilbert was fixing up for the victim and Mr. Gilbert's frustration with transporting the victim's boyfriend back and forth for weekend visits. Torres also addresses Mr. Gilbert's contention that the messages could have been altered since they were not retrieved by a cell phone extraction or a subpoena to Facebook. The Fourth District rejected these same contentions, explaining that "any argument that the victim fabricated the messages will ... go to the weight of the evidence, not its admissibility." Id. at 785. For these reasons, we align with our sister court and conclude that the trial court did not err in finding the State met the authentication requirement.1
The trial court admitted the journal as an exhibit during the State's redirect examination of the victim. Although the trial court provided no explanation for overruling Mr. Gilbert's hearsay objection, it admitted the journal immediately after defense counsel extensively cross-examined the victim on fact-specific inconsistencies between her testimony and the journal. Mr. Gilbert challenges that ruling, arguing that the only hearsay exception that would support admission of the journal—a prior consistent statement under section 90.801(2)(b) —didn't apply because Mr. Gilbert's "entire defense" was "that [the victim]'s fabrication was not recent." The State counters that Mr. Gilbert's generic hearsay objection did not preserve this argument and that any error in admitting the journal was harmless.
Mr. Gilbert's hearsay objection was sufficient to preserve this issue for appeal for two reasons. First , when a party makes a hearsay objection, a trial court is tasked with "consider[ing] all possible hearsay violations, exceptions, and exclusions"—even exceptions that the proponent of the hearsay did not argue. Neeley v. State , 883 So. 2d 861, 864 (Fla. 1st DCA 2004). Second , "the State , as the evidentiary proponent, ... had the burden of supplying a proper predicate to admit this evidence under an exception to the rule against hearsay." Yisrael v. State , 993 So. 2d 952, 956 (Fla. 2008) (emphasis added). Accordingly, Mr. Gilbert's generic hearsay objection was adequate to preserve his argument against applying the prior consistent statement exception.
We agree with Mr. Gilbert that the journal does not qualify as a prior consistent statement. Because the victim's alleged "motive to fabricate"—her desire to move back to her prior residence—"predated" the journal, it couldn't be used to rebut Mr. Gilbert's defense theory. Bullington , 311 So. 3d at 108–09 (); see § 90.801(2)(b).
Nonetheless, we conclude—based on our decision in Bullington —that the trial court's error in admitting the journal was harmless. See Bullington , 311 So. 3d at 109 ...
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Claire v. Fla.
... WILLIAM ST. CLAIRE, Petitioner, v. STATE" OF FLORIDA, Respondent. No. 2:19-cv-720-JES-MRM United States District Court, M.D. Florida, Fort Myers Division June 3, 2022 ... \xC2" ... distinctive characteristics taken in conjunction with the ... circumstances”); Gilbert v. State , 324 So.3d ... 598 (Fla. 2d DCA 2021) (admitting screenshots of Facebook ... Messenger messages after the victim testified that ... ...
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Summation
...harmful, and incurable, and damage the fairness of the trial such that the public interest requires a new trial. Gilbert v. State , 324 So. 3d 598 (Fla. Dist. Ct. App. 2021), review denied, No. SC21-1282, 2021 WL 5919031 (Fla. Dec. 15, 2021). In trial for sexual activity with a child, prose......