Jaggers v. State, 86-2344

• Decision Date: 20 December 1988
• Docket Number: No. 86-2344,86-2344
• Citation: 14 Fla. L. Weekly 51,536 So.2d 321
• Parties: 14 Fla. L. Weekly 51 Rickey JAGGERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 321

536 So.2d 321

14 Fla. L. Weekly 51

Rickey JAGGERS, Appellant, v. STATE of Florida, Appellee.

No. 86-2344.

District Court of Appeal of Florida, Second District.

Dec. 20, 1988.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Jaggers was convicted and sentenced to three consecutive sentences of life in prison without eligibility for parole for twenty-five years on three separate counts of sexual battery perpetrated on three children under the age of eleven. Specifically, Jaggers was accused of vaginal digital penetration of his daughter and stepdaughter, Crystal Jaggers and Melissa Mitchell, and injuring the sexual organ of his niece, Erica Gibbs, in an attempt to penetrate her vagina, between and including October 1, 1984, and the month of September 1985. In this appeal, Jaggers challenges the judgment and sentences on various grounds.

First and foremost, we conclude that appellant is correct in that his motion for judgment of acquittal (directed verdict) on the two counts of sexual battery involving his daughter and stepdaughter should have been granted based on the posture of the case and the status of the evidence in the trial court. Appellant's appellate counsel charitably suggests that that issue involving appellant's motion for judgment of acquittal may not have been adequately preserved below because appellant's trial counsel made too "general" a motion and, therefore, we are powerless to effect review of the issue absent fundamental error.

We do not agree that the motion below was too nonspecific or that we are powerless to review absent fundamental error. Appellant's motion below clearly stated that the motion was based upon the state's failure to "prove a prima facie case" of capital sexual battery. It is clear from the record that the trial judge and counsel for the state understood and approached consideration of the motion from the standpoint of whether the evidence was sufficient to prove the essential element, penetration of the alleged victims, so as to sustain the charges of capital sexual battery of children under the age of eleven years. We find that there was a total lack of reliable evidence to support the element of penetration in regard to the two counts of sexual battery involving appellant's daughter and stepdaughter. Fla.R.Crim.P. 3.380.

The principal incident leading to these charges occurred while Jaggers was bathing the three girls. The precise time that incident occurred cannot be more specifically determined than the time period alleged in the amended information. Jaggers' five-year-old niece testified at trial that Jaggers had touched all three girls "down there," referring to the vaginal area, while they were in the bathtub and that when he touched her "it hurt." She also related a similar incident involving Jaggers that occurred while she was lying on the bed or couch when she slept overnight at the Jaggers' residence. Sergeant Kuhn, a Pasco County deputy sheriff in charge of the juvenile division which handles crimes against children, investigated the sexual abuse allegations against Jaggers. She testified that Jaggers' niece told her, demonstrating through the use of an anatomically correct doll, that Jaggers touched the niece in a private area, pointing to the doll's vaginal opening. The niece's mother testified about her daughter's statement that Jaggers had placed his finger inside her "pee-pee" and that of Jaggers' stepdaughter.

The testimonies of Jaggers' daughter and stepdaughter were introduced at trial by means of their video taped depositions, conducted after a hearing pursuant to section 92.53, Florida Statutes (1985). ¹ At that hearing, the trial court heard testimony from the guardian ad litem for the Jaggers children to the effect that it would be in the children's "best interests" to testify by means of video tape outside the presence of Jaggers. The essence of the guardian's testimony was related to the influence being exerted by the children's mother, who consistently maintained her husband's innocence in front of the children. Although some reference was made by the guardian to reviewing a psychological report performed on the children, that report was apparently not introduced as evidence at the hearing and cannot be considered.

Immediately after hearing the guardian's testimony, the trial court entered a ruling that there was a substantial likelihood that these children would suffer at least moderate emotional trauma or mental harm if they were required to testify in open court. The defense counsel objected to the court's determination of trauma on the ground that it was not supported by any specific findings of fact as required under section 92.53(7). The court approved the video taping of the children's testimony stating that its finding of trauma was based upon the facts as testified to by the guardian. During the video taping, Jaggers was permitted to view the victims through a one-way mirror and hear their testimonies, but they in turn could not see or hear him. Jaggers, through his counsel, thoroughly exercised his right to cross-examine the witnesses at the depositions.

Appellant's four-year-old daughter and seven-year-old stepdaughter, through their testimony introduced by the state in its case in chief at trial by means of the video taped deposition, testified concerning an incident when all three children were in a bathtub together. The bathtub incident could not have taken place later than early May 1985. They testified only that appellant touched them in the vaginal area with his hand while they were bathing. The daughter and stepdaughter specifically testified that appellant did not penetrate the vagina with his finger, the only instrument of penetration urged by the state.

The stepdaughter's video taped testimony established that Jaggers touched the "privates" of all three girls with his finger, but she stated that Jaggers touched "around the hole but did not go inside." This testimony contradicted previous statements she had made in November and December 1985, to several persons including Sergeant Kuhn, Dr. Montemayor, a pediatric specialist, and Laura Kelley, a child abuse counselor. These witnesses testified, over appellant's objection, to prior statements made by Jaggers' daughter and stepdaughter that were consistent with vaginal penetration by Jaggers with his finger. During the course of the deposition, Jaggers' stepdaughter identified a drawing she had made during her interview with Dr. Crum, a child psychologist, which depicted the three girls in a bathtub and contained the writing, "[M]y daddy stuck his finger up my vagina."

Jaggers' daughter also denied any sexual abuse by Jaggers in her video taped testimony. Her testimony was directly contradictory to her earlier out of court responses to questions regarding the sexual abuse allegation against Jaggers. These responses included out of court statements she made to Dr. Montemayor and Sergeant Kuhn in November 1985, and to her grandmother, Mrs. Mitchell, in September 1985.

We conclude that the state's attempts to remedy the negative trial testimony by the daughter and stepdaughter on the issue of penetration with the unsworn, out of court victim statements that were themselves often contradictory and not made at a time closely approximate to the alleged occurence, were not sufficiently reliable to warrant admission into evidence. The time of the out of court statements, relative to the time of the incident charged and the circumstances of the statements, are critical to a determination of reliability. See Perez v. State, 536 So.2d 206 (Fla.1988). That testimony, offered under section 90.803(23), Florida Statutes (1985), was relied on as substantive evidence. However, in this case, it amounts to nothing more than evidence of prior inconsistent statements of a testifying witness which are not admissible except when offered to contradict and to impeach the direct testimony offered at trial. We conclude that evidence of such prior unsworn, inconsistent statements, not subject to cross-examination at the time they are made, cannot constitute the sole evidence upon which to sustain appellant's convictions of the sexual battery by penetration of his daughter and stepdaughter. State v. Moore, 485 So.2d 1279 (Fla.1986). To hold otherwise would put us in conflict with Moore.

Moreover, we do not find the intent of section 90.803(23) is to allow the state to breathe substantive reliability into such prior inconsistent statements when they are otherwise admissible only to impeach those prosecuting victim witnesses whose testimony is introduced by the state at trial. Before it is admissible, evidence offered under section 90.803(23) must, like any other evidence, also comply with all applicable evidentiary rules of admissibility and purpose. The rule that prior inconsistent statements may not be used substantively as the sole evidence to convict (see Moore), applies to Section 90.803(23) evidence as well. Once the state introduced the exculpatory testimony, the inculpatory prior unsworn statements became prior inconsistent statements and should not have been allowed into evidence, in this case, for any purpose, and certainly not as substantive evidence. To allow the state to use as its sole evidence of the commission of the crime charged such prior unsworn, out of court statements which were not subject to cross-examination by the defendant, under the facts of this case violated appellant's sixth amendment right to confrontation and cross-examination. See Moore, 485 So.2d at 1282 (Overton, J., concurring specially); Everett v. State, 530 So.2d 413 (Fla. 4th DCA 1988). Moreover, to interpret section 90.803(23) otherwise would allow that section to be used to avoid the provision of section...