Moore v. State, BR-495

• Decision Date: 06 April 1988
• Docket Number: No. BR-495,BR-495
• Citation: 13 Fla. L. Weekly 2049,530 So.2d 61
• Parties: 13 Fla. L. Weekly 2049, 13 Fla. L. Weekly 890 James Henry MOORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 61

530 So.2d 61

13 Fla. L. Weekly 2049, 13 Fla. L. Weekly 890

James Henry MOORE, Appellant, v. STATE of Florida, Appellee.

No. BR-495.

District Court of Appeal of Florida,

First District.

April 6, 1988.

On Motion for Rehearing and

Clarification Aug. 31, 1988.

Michael E. Allen, Public Defender and Ann Cocheu, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradford L. Thomas, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant James Henry Moore appeals his conviction and sentence, after a jury found him guilty of the offense of aggravated child abuse. Three points are presented for our review: (1) whether the trial court erred in admitting appellant's pre-trial statements into evidence as impeachment, when appellant did not testify at trial; (2) whether the trial court erred in departing from the recommended guideline sentence, on the basis of violation of a position of trust; and (3) whether the trial court erred in imposing costs against appellant without prior notice. We affirm in part and reverse in part, and remand for resentencing.

In a two-count information, appellant was charged with aggravated child abuse and with sexual battery of his 17-year old daughter. The evidence at trial established that the daughter's life had been spent with first one relative and then another. She was residing with appellant and his girlfriend at the time of the incident which is the subject of this appeal, but had been there only three weeks. Three months before moving into appellant's house, the daughter lived with her boy friend and his family.

According to the daughter's testimony, appellant disliked her boy friend and disapproved of her relationship with him. On April 11, 1986, she spent the night with her boy friend, and appellant ordered her out of his house. The daughter considered going to Georgia to live with her grandmother, but she did not have money for bus fare. She spent the next two or three days drifting around the streets and bars, until one of her acquaintances arranged for her to have sex with a friend so she could get money for the trip to Georgia. She missed her bus, and at 6:00 a.m., the police picked her up and took her to her aunt's house. After the police contacted her father at work, the aunt returned her to her father's house. Shortly thereafter, her father came back from work.

The daughter said appellant was angry about her life style and angry at her unconcern regarding his dislike of her boy friend. Appellant scolded and berated her, and then beat her bottom repeatedly with some object which she could not see. Midway through the beating, appellant ordered her to remove her pants, and he then beat her with a hose. The daughter testified that after the beating, appellant had sexual intercourse with her.

That evening, the daughter reported the incident to the police. She was interviewed by Officer Lindsey at appellant's house, taken to the hospital, and then to a shelter. During cross examination, she acknowledged telling the caseworkers that her father never had sex with her; and that she invented the story because she was angry about the beating he inflicted on her.

A pediatrician with the Child Protection Team testified that she examined the daughter during the early morning hours of April 16, 1986, at which time the bruises on her buttocks and legs measured 15 X 15 centimeters. The pediatrician described the beating as excessive when compared with her observations of other child victims of beatings. The emergency room physician who conducted a pelvic examination and gathered evidence for the rape kit, stated he observed bruises and contusions on her buttocks and left thigh. The rape kit lab results were inconclusive.

Also on April 16, 1986, Officer Lindsey returned to appellant's house. Appellant consented to a search, and told the officer he had some pieces of hose in the trunk of his car. When appellant opened the trunk of his car, the officer seized two hose lengths which were there. Later that same day, appellant went to the Police Department where he talked with the police chief. Over objection the chief testified that during the first interview, appellant denied beating and sexually battering the daughter. The chief stated he re-interviewed appellant on April 21, 1986, and at that time appellant denied his daughter's allegation of sexual contact, but admitted striking her with his fist and a shoe.

The jury acquitted appellant of the sexual battery, but found him guilty of aggravated child abuse. The recommended guideline sentence was community control or a 12 to 30 month period of incarceration. The trial court imposed a 4-year sentence, providing as reason therefor that appellant violated a position of trust with the victim.

The first point raised on this appeal concerns the admission of appellant's pre-trial exculpatory statements. Exculpatory statements made by a defendant who chooses not to testify at trial constitute inadmissible hearsay not within any of the exceptions to the hearsay rule. Watkins v. State, 342 So.2d 1057 (Fla. 1st DCA), cert. denied, 353 So.2d 680 (Fla.1977); Logan v. State, 511 So.2d 442 (Fla. 5th DCA 1987); Fagan v. State, 425 So.2d 214 (Fla. 4th DCA 1983); Lowery v. State, 402 So.2d 1287 (Fla. 5th DCA 1981). Such statements cannot be offered against an accused during the state's case-in-chief, because "[a] witness may not be impeached before he has testified." Erp v. Carroll, 438 So.2d 31, 35 (Fla. 5th DCA 1983); Giddens v. State, 404 So.2d 163, 164 (Fla. 2d DCA 1981); Ehrhardt, Florida Evidence, § 608.1 (2d ed. 1984).

Although self-serving hearsay statements are inadmissible, an out-of-court admission by the accused is admissible under section 90.803(18), Florida Statutes, when offered by an adverse party. ¹ Ehrhardt, Florida Evidence, § 803.18, at 515. When the statements are in the nature of a confession rather than an admission against interest from which guilt may be inferred, a necessary predicate for introduction of the statements is proof of the corpus delicti. ² Hutton v. State, 332 So.2d 686, 687 (Fla. 1st DCA 1976); Ehrhardt, § 803.18, f.n. 13, at 515-516.

In this case, the police chief was permitted to testify concerning two pretrial interviews he conducted with appellant. During the first interview, appellant denied both the sexual battery and child abuse allegations. During the second interview, he again denied the sexual battery, but admitted that he struck his daughter with a shoe and with his fist. Since the state presented independent proof that a beating was inflicted on the daughter, and that some other person was responsible, this second statement was properly admitted pursuant to section 90.803(18), as a confession of criminal activity to a police officer. On the other hand, it was improper to admit the statements made by appellant during the first interview, since these statements were self-serving hearsay not within any of the exceptions. However, in light of appellant's acquittal of the sexual battery count, we find admission of these exculpatory statements was not harmful error. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

The second issue is directed to the trial court's reason for departure, that is, that appellant violated a position of trust. Breach of trust has been held a permissible reason for departure in some instances. See Hankey v. State, 485 So.2d 827 (Fla.1986); Neal v. State, 492 So.2d 1135 (Fla. 1st DCA 1986); Jefferson v. State, 489 So.2d 860 (Fla. 1st DCA 1986); Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984), review denied, 471 So.2d 44 (Fla.1985); Ross v. State, 478 So.2d 480 (Fla. 1st DCA 1985). In those cases which approved violation of the trust bestowed on the defendant by the victim as a reason for departure, the victim's trust in the defendant was the factor that made the crime possible. See Davis v. State, 517 So.2d 670 (Fla.1987).

The record in this case is clear that the relationship between appellant and his daughter was a biological relationship, and nothing more. The daughter had never lived in appellant's home or under his supervision for any extended period of time. In fact, when she angered appellant by spending the night with her boy friend, he put her out of his house. Thus, we find the fact scenario presented in this case is not conducive to a departure reason predicated on violation of trust. Since we find the aggravated child abuse in this case was not made possible by virtue of any trust the daughter reposed in appellant, we disapprove the departure sentence as not supported by clear and convincing reasons. Fla.R.Crim.P. 3.701(d)(11).

The third issue concerns the imposition of costs without prior notice. The trial court sentenced appellant to four years incarceration, to be followed by six years probation. As a special condition of probation, the trial court imposed costs pursuant to sections 960.20, 943.25(4), and 943.25(8), Florida Statutes (1985), and assessed $400 in attorney's fees without citing statutory authority for the fees.

It is well settled that before costs may be assessed pursuant to sections 960.20, 943.25, and 27.3455, the state must provide a defendant with adequate notice and an opportunity to object to the assessment. Mays v. State, 519 So.2d 618 (Fla.1988); Jenkins v. State, 444 So.2d 947, 950 (Fla.1984); Gaskin v. State, 513 So.2d 1087 (Fla. 1st DCA 1987); Riddell v. State, 509 So.2d 956 (Fla. 1st DCA 1987); Harris v. State, 498 So.2d 1371 (Fla. 1st DCA 1986). Furthermore, the imposition of such costs may be challenged even though no objection was raised in the trial court. Harriel v. State, 520 So.2d 271 (Fla.1988); Farnam v. State, 516 So.2d 329 (Fla. 1st DCA 1987); Bellinger v. State, 514 So.2d 1142 (Fla. 1st DCA 1987); Brown v. State, 508 So.2d 776 (Fla. 1st DCA 1987).

There is nothing in this record to indicate appellant received adequate notice regarding any of the costs...