Jones v. State

• Decision Date: 24 February 1999
• Docket Number: No. 97-2446,97-2446
• Citation: 728 So.2d 788
• Parties: Douglas Leo JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

728 So.2d 788

Douglas Leo JONES, Appellant, v. STATE of Florida, Appellee.

No. 97-2446

District Court of Appeal of Florida, First District.

February 24, 1999.

Rehearing Denied March 31, 1999.

Nancy A. Daniels, Public Defender; Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Laura Fullerton Lopez, Assistant Attorney General, Tallahassee, for Appellee.

WEBSTER, J.

In this direct criminal appeal, appellant seeks review of a conviction for attempting to commit a lewd or lascivious act upon a child. He argues that the trial court erred when it denied his motion to exclude the child victim's out-of-court statements regarding the offense. Concluding that the trial court correctly denied appellant's motion, we affirm.

The state filed an information charging appellant with the commission of a lewd or lascivious act upon a child. It subsequently served appellant with a notice, pursuant to section 90.803(23)(b) of the Florida Evidence Code, stating that it intended to offer at trial the alleged child victim's out-of-court statements; and a notice, pursuant to section 90.404(2)(b) of the Florida Evidence Code, stating that it intended to offer at trial similar fact evidence of another crime, wrong or act. Appellant responded by filing two motions in limine. In the first, he argued that the alleged child victim was incompetent to testify at trial, and that the out-of-court statements could not meet the reliability requirement set out in section 90.803(23)(a)1 of the Florida Evidence Code. In the second motion in limine, appellant argued that the proposed similar fact evidence was inadmissible for a number of reasons. The trial court denied the motion in limine addressed to the similar fact evidence, and appellant does not challenge that ruling on appeal. The trial court later ruled, after an evidentiary hearing, that the alleged child victim would not be competent to testify at trial. At a subsequent hearing on the admissibility of the alleged child victim's out-of-court statements, appellant again argued that the statements should be excluded pursuant to section 90.803(23)(a)1 because they were not sufficiently reliable. Appellant also argued that the similar fact evidence could not be used to satisfy the corroboration requirement imposed by section 90.803(23)(a)2b when the child witness is unavailable because it did not corroborate the offense charged. The trial court subsequently denied appellant's motion to preclude the use of the out-of-court statements at trial, holding that the statements were sufficiently reliable to satisfy section 90.803(23)(a)1, and that the similar fact evidence could be used to satisfy the corroboration requirement imposed by section 90.803(23)(a)2 b. Appellant then pled no contest to the reduced charge of an attempt to commit a lewd or lascivious act, reserving the right to seek review of the order denying his motion to exclude the out-of-court statements at trial, which order the state agreed was dispositive. This appeal follows.

To the extent relevant, section 90.803(23)(a) of the Florida Evidence Code reads:

(a) Unless the source of information or the 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 or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any 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, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).

The trial court concluded that the alleged child victim was unavailable to testify at trial. Therefore, the child's out-of-court statements would be admissible at trial only if (1) the trial court found that they satisfied the reliability requirement of section 90.803(23)(a)1 and (2) there was "other corroborative evidence of the abuse or offense," as required by section 90.803(23)(a)2 b.

In State v. Townsend, 635 So.2d 949 (Fla.1994), our supreme court held that trial courts must follow a two-step approach to determine the admissibility of out-of-court statements pursuant to section 90.803(23) when a child victim is unavailable to testify at trial:

First, the trial judge must determine whether the hearsay statement is reliable and from a trustworthy source without regard to corroborating evidence. If the answer is yes, then the trial judge must determine whether other corroborating evidence is present. If the answer to either question is no, then the hearsay statements are inadmissible.

Id. at 957. According to the court, such an approach was necessary to ensure that a defendant's rights pursuant to the confrontation clauses of the state and federal constitutions were protected. Id. It is undisputed that the trial court followed this procedure.

The trial court made detailed written findings in support of its decision that the out-of-court statements were reliable and from a trustworthy source. Appellant argues with some force that the trial court's findings are not supported by the record. However, the standard of review on this question is abuse of discretion. E.g., Perez v. State, 536 So.2d 206 (Fla.1988); Barton v. State, 704 So.2d 569 (Fla. 1st DCA 1997). Having carefully reviewed the record, we cannot say that the trial court's decision as to reliability and trustworthiness was an abuse of discretion.

Once it had determined that the statements were reliable, the trial court was next required to determine whether there was "other corroborative evidence of the abuse or offense." Fla. Evid.Code § 90.803(23)(a)2 b. The trial court concluded that such evidence existed in the form of...