Jesus v. State
| Decision Date | 05 July 1990 |
| Docket Number | No. 89-2507,89-2507 |
| Citation | 565 So.2d 1361 |
| Parties | 15 Fla. L. Weekly D1737 Jesus P. JESUS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender and Robert Friedman, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal by Jesus P. Jesus from his conviction for sexual battery of a child and from his sentence to a term of life imprisonment with a mandatory minimum term of 25 years. We affirm.
Proof was submitted at trial that on November 6, 1988, Highway Patrol Trooper Harry Coates, while travelling westbound on West Farms Road in Indiantown, observed a small boy run out of the bushes on the side of the road. The boy signaled Coates and said "my butt, my butt," and other things in Spanish. Coates saw Jesus emerge on a bicycle from the bushes and stopped him. Don Martinez, a truck driver who frequently acts as a Spanish translator for the Martin County Sheriff's office, was dispatched to the scene. Martinez testified that the boy said that a man offered him some money to go into the woods, and that when he did, the man pushed him to the ground, dropped down his pants, and used a stick on him.
The boy was taken to Martin Memorial Hospital. Dr. Jose Serra said that the boy complained that his butt hurt. The boy told Dr. Serra that a man gave him money to go into the woods with him, and when he did, the man pushed him down, laid on top of him, and put a stick in his butt. Dr. David Melzer also saw the boy and testified that there was some evidence of bleeding from the boy's rectum. Daniel Nippes, a criminalist, testified that he analyzed some of the boy's clothes, and that there was a small quantity of seminal fluid on the crotch area of the boy's underwear and on the seat of his shorts, and fecal residue on the seat of his shorts.
Officer John Silvas, who speaks Spanish, interviewed Jesus at the Martin County Jail. Jesus told Silvas that he was twenty two years old and was born on July 10, 1966. Jesus said that the boy asked him for money, and he admitted to Silvas that he took the boy into the woods, knocked him down and tried to pull his pants off, but that he did not do anything more.
The boy testified at trial that Jesus offered him money to go into the woods and when he did, Jesus pulled off his pants and put his "thing" in his butt. At the time of the trial, the boy was nine years old.
Jesus claims that the trial court erred in admitting into evidence his statements to others. He asserts that the statements were not voluntary or admissible since he had a difficult time understanding the Spanish spoken to him, since he spoke a Guatemalan version of Spanish, and since he had only a low level of education.
Patricia Richey, a certified federal interpreter, testified that she had a difficult time communicating with Jesus at first, although it got easier. She said that Jesus used words that she did not understand and that she had to explain words to him in common Spanish. For instance, she said that Jesus did not know the difference between the Spanish words for lawyer and judge.
On the other hand, Officer Silvas said that Jesus used words that were familiar to him as ordinary Spanish, and never used words that were of a different dialect. He said that Jesus never indicated that he did not understand a question and that he responded appropriately to his questions. Silvas stated that Jesus indicated that he knew the meaning of the word "abogado" which is Spanish for lawyer. When he read Jesus his Miranda rights, Silvas said that Jesus indicated that he understood. Silvas said that Jesus spoke freely and voluntarily with him.
Martinez also testified that Jesus indicated that he understood him when he read him his Miranda rights in Spanish, pursuant to the request of a police officer. He said that Jesus responded in the same ordinary type of Spanish in which he was questioned. Like Silvas, Martinez said that Jesus never indicated that he did not understand what was being asked of him and that he responded appropriately to each question. The trial court ruled:
On the statement taken, the subsequent statement taken by detective Silvas I'm going to deny the motion because I believe that the Detective went through if not all of the requirements of Miranda, certainly the substantial ones. And that the tape and the transcript indicated that he responded yes to them. And I believe that that is sufficient showing in the record for a knowing and intelligent understanding decision to speak. And there's also--even on the transcript there's a portion that says that we should talk. I believe that the Detective said that what he said at that point was okay or something to that effect. The transcript says, "we should talk." The Detective said that what he said in effect okay we need to talk. So I find that he was adequately and sufficiently informed of his rights during the Silvas interview and that he knowingly and intelligently waived his rights after being informed and spoke with the Detective. So that one will not be suppressed, but the Martinez statement will be.
The State must demonstrate the voluntariness of a Miranda waiver by a preponderance of the evidence. Balthazar v. State, 549 So.2d 661 (Fla.1989). Although the State's burden in proving voluntariness is heavier when a defendant claims a language barrier, the standard of proof remains the same. Balthazar. In the instant case, although the evidence is conflicting, the trial court's ruling was supported by much of the evidence outlined above. Because it was the proper duty of the trial to resolve the conflict, we find no error by the trial court in admitting the statements.
Jesus contends that the state improperly relied on his statement in establishing his age for purposes of section 794.011(2), Florida Statutes 1 and, accordingly, that the state failed to present a sufficient corpus delicti, or prima facie case, without use of the statement. The trial court ruled that the appellant's age was not an element of the crime of sexual battery but was a factor to consider as part of the sentence for that crime.
In discussing the concept of corpus delecti in State v. Allen, 335 So.2d 823, 824, n. 2 (Fla.1976), the supreme court stated:
(emphasis supplied).
See also Drysdale v. State, 325 So.2d 80 (Fla. 4th DCA 1976); McQueen v. State, 304 So.2d 501 (Fla. 4th DCA 1974), cert. denied, 315 So.2d 193 (Fla.1973).
Section 794.011(1)(h) defines the crime of "sexual battery" as oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by an object. According to that section, the offender's age is not an element of the crime of sexual battery. Section 794.011 refers to a person's age only in prescribing the means by which an offender should be punished. Thus, the trial court was correct in its reasoning in denying the motion of judgment of acquittal.
The trial court permitted Martinez and Serra to testify as to what the boy told them right after the incident pursuant to the hearsay exception set out in section 90.803(23), Florida Statutes:
Hearsay exception; statement of child victim of sexual abuse or sexual offense against child.
(a) Unless the source of information or method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less, describing any act of child abuse, sexual abuse, or any other offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim and any other factor deemed appropriate, and
(2) The child either:
(a) Testifies; or
(b) Is unavailable as a witness, ...
Before admitting the child's...
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