Cabrera v. State

206 So. 3d 768, 2016 Fla. App. LEXIS 16645

Opinions

LEWIS, J.

Appellant, Bernardino Cabrera, appeals his judgment and sentence for sexual battery on a child under twelve years of age. We affirm, but we write only to address whether the trial court erred by admitting the child hearsay statements contained in the Child Protective Team (“CPT”) video.

Facts

Appellant was charged with sexual battery on a child under twelve years of age based on acts he allegedly committed against P.C. between August 2012 and June 2013. The State filed a notice of its intent to introduce the child hearsay statements P.C. had made about the alleged sexual battery during a forensic interview conducted by the CPT. At the hearing on the State’s notice, the trial court indicated it had reviewed the videotaped CPT interview and heard the testimony of Jesse Kemper, the CPT case specialist who had conducted the forensic interview with P.C. on July 18, 2013.

Kemper testified that P.C. was friendly and open, appeared to understand the difference between the truth and a lie for a five-year-old child of her cognitive abilities, and accurately identified all the body parts. P.C. called her vagina “lake” and “bottom” and disclosed that her father sexually abused her by touching her there one time. P.C. appeared reliable and Kemper had no reason to believe that P.C. was lying or was being coached. Kemper did not notice any “red flags,” P.C.’s terminology in disclosing the sexual abuse was consistent with her age, and P.C.’s description of the abuse itself was “fairly detailed” and consistent with her age, though she was “less detailed on other parts of the description.” When asked about truth versus lies in the context of crayons, P.C. initially got the color of the purple crayon wrong and gave an incorrect answer about whether it would be the truth or a lie if Kemper said the purple crayon was red. Kemper determined that P.C. appreciated the difference between truth and lies and her behavior with regard to the crayons was consistent with a child her age and was not unexpected. P.C. occasionally gave answers that did not make sense, but that could also be expected for a child her age. For example, when asked what she did with her bottom, P.C. said you put a marker on it. Kemper explained that when children are trying to avoid something, they often name an object they are holding, and in this case P.C. was holding a marker. There were allegations of domestic violence and substance abuse in the family.

The videotaped CPT interview reflects in part that upon further questioning, P.C. was able to correctly identify whether Kemper’s statements about the crayons were the truth or lies and she promised to tell the truth. She also indicated that the sexual battery occurred “a little time ago,” before Christmas, while it was “very cold” and the weather outside was like “snow.”

Prior to the parties’ arguments, the trial court explained:

So I look at all the issues. You look at things that are specifically in the rule. They don’t help you a whole lot in terms of because they’re pretty vague. Age and maturity of the child: The child at the time was apparently five years old, at that time of the alleged incident, four years old. Nature and duration of abuse: She says it was one time. Reliability of the assertion: well, that’s sort of a circuitous factor. Reliability of the child victim: The same sort of thing.

I did have the opportunity to observe the child and also I could tell from the interview, it was made to somebody, not a family member here, not somebody that would have a reason to coach the child. And I didn’t see any coaching going on by the interviewer, Ms. Kem- per. It appeared that she did ask open-ended questions, a little bit of leading but not much. And the child’s description was consistent with a child’s description of an event like this. There’s no suggestion that she was being coached and her language didn’t suggest she was being coached by somebody else.

The reason I asked about prior statements and if she had told this to her mother and told it to her grandmother and told it to some other people, you know, after you tell it several times, you wonder whether they’re telling what they told happened or whether they’re telling what somebody told them happened over and over. That starts (inaudible), so. But apparently we don’t have that situation.

Although there was some bit of, what do I want to call it, inaccurate, nondescript, general, vague type terms, and the problem you have with the state, of course you have a young witness, they’re not going to be the best witness because they don’t quite get the grasp, they’re not as articulate, their cognitive abilities are not as good, but all things considered, she had no motivation to fabricate. And she was able to, I think, distinguish pretty much between reality and that.

She stumbled a little bit in the beginning about telling the truth as to whether the color of a crayon but by the time—she was asked a few times, she got it right and was able to do that and agreed to tell the truth. So whether she’s mistaken or not would be up to the jury. My initial inclination is that it should be admitted but I’m open to hear anything on the defense side.

Appellant argued that P.C. initially displayed an inability to recognize the duty to tell the truth and some of her answers did not make sense, but conceded there was no indication that P.C.’s mother put her up to making the allegation or asked her a lot of leading questions.

Footnotes

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* The trial court noted that P.C. gave a child-like description of the incident, it could not tell when the incident happened, and there was no indication that P.C.’s mother put her up to making the allegation. The trial court then ruled as follows:

Well, based on what I’ve already outlined, my initial ruling would be it’s admissible but I’ll leave it open if you come to me for other circumstances, because I think it’s in the rule, that show it’s untrustworthy. But given her demeanor, all the other circumstances I pointed to, the way the interview was done, I would find that it meets the requirements of subsection 23,

The CPT interview was admitted into evidence during trial, where P.C., then seven years old, and Appellant both testified. The jury found Appellant guilty, and he was sentenced to life imprisonment. This appeal followed.

Analysis

A trial court’s finding that a child’s hearsay statements are reliable and come from a trustworthy source, making them admissible pursuant to section 90.803(23), Florida Statutes, is reviewed for an abuse of discretion. Small v. State, 179 So.3d 421, 424 (Fla. 1st DCA 2015). This Court has explained:

For a child hearsay statement to be admissible at trial, the court must hold a hearing outside the presence of the jury to determine if the statement meets two reliability conditions: “(1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability.” State v. Townsend, 635 So.2d 949, 954 (Fla.1994). Suggested factors for courts to consider in making this determination may be found in both statutory and case law. See § 90.803(23)(a)(l); Townsend, 635 So.2d at 957-58. Child hearsay statements are admissible when the' trial court fulfills its responsibility to place on the record specific findings of fact that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” § 90.803(23)(a)(1)....

Id, (concluding that the child hearsay statements were properly admitted where the trial court analyzed the statements according to the factors suggested by section 90.803(23)(a)(l) and Townsend and made specific findings concerning the reliability of the statements that were supported by competent, substantial evidence; for example, the trial court made findings about the child’s mental and physical age, noted that her descriptions of the acts were child-like, and found that her accusations were consistent).

In State v. Townsend, 635 So.2d 949, 954 (Fla.1994), the Florida Supreme Court explained that the two “strict trustworthiness arid reliability requirements” were established “to balance the need for reliable out-of-court statements of child abuse victims against the confrontation and due process • rights of those accused of child abuse,” and noted that “the first requirement was added to ensure a careful examination of the source, particularly when ... the circumstances involve marital discord between the child’s parents and the possibility exists that one parent might be using the child to seek some advantage over the other parent.”

Section 90.803(23)(a), Florida Statutes (2012), provides in pertinent part that “[u]nless 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” under the age of eleven concerning an act of child sexual abuse is admissible in evidence 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;....

In addition to the factors suggested in section 90.803(23)(a)l., “[ojther factors may include, but are not limited to”:

a consideration of the statement’s spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like. description of the act; whether the child used, terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation. ... In sum, ... a court is to use a totality of the circumstances evaluation in determining reliability.

Townsend, 635 So.2d at 957-58. A trial court must make specific findings of fact on the record as to the basis of its ruling. § 90.803(23)(c), Fla. Stat.; see also Townsend, 635 So.2d at 957; Rodriguez v. State, 77 So.3d 649, 651 (Fla. 3d DCA 2011) (affirming the trial court’s finding that the child’s hearsay statements were reliable where the court complied with section 90.803(23) and Townsend “by making detailed findings of fact regarding the time, content, and other relevant circumstances in which the child-victim’s hearsay statements were made, so as to establish reliability. Specifically, the trial court found: (1) the child provided a detailed account of the various assaults committed by the defendant upon her; (2) the child’s reports to the various witnesses were consistent; (3) the questions posed to the child were open-ended, non-leading questions; (4) the child’s answers were given using words consistent with a child her age; (5) there was nothing to indicate that the child-victim’s hearsay statements, or the method by which those statements were obtained or reported, lacked trustworthiness; (6) the child had no reason to fabricate any of the accusations or details about the incident nor was there any evidence to suggest that she was coerced or coached; and (7) there was no evidence to indicate that this was an attempt to deal with a domestic dispute.”).

Turning to the case before us, Appellant argues that the trial court erred by admitting the hearsay statements contained in the CPT video because they were unreliable given that P.C. could not understand the difference between truth and lies and provided several nonresponsive, nonsensical answers. While P.C. initially provided incorrect answers about the color of the crayon and whether Kemper’s statement about its color would be the truth or a lie, she was then able to correctly identify whether Kemper’s statements were the truth or lies, she promised to tell the truth, she was only five years old at the time, and Kemper determined she appreciated the difference between truth and lies and her behavior with regard to the crayons was consistent with her age and was not unexpected. Although P.C. also provided several answers that seemingly were nonre-sponsive or did not make sense, she was only five years old at the time and Kemper testified such answers could be expected from a child her age.

The trial court complied with the requirements of the statute and case law for it held a hearing outside of the jury’s presence to determine whether P.C.’s statements were reliable and made specific findings of fact as to the basis for its ruling. Specifically, the trial court made the following findings of fact: P.C. was four years old at the time of the alleged incident and five years old at the time of the disclosure, the abuse allegedly happened one time, the disclosure was made to someone who was not a family member and would have no reason to coach P.C., Kemper did not coach P.C. and mostly asked open-ended questions, P.C.’s description was consistent with a child’s description of such an incident, there was no suggestion that P.C. was being coached and her language did not suggest otherwise, P.C. did not repeatedly recount the allegation to the point where its truthfulness would be questionable, P.C. had no motive to fabricate the allegation, P.C. was able to distinguish reality, P.C. eventually got the questions about the truth right and agreed to tell the truth, P.C. gave a child-like description of the incident, the court could not determine when the al leged incident happened, and there was no indication that P.C.’s mother put her up to making the allegation. Indeed, Kemper testified that P.C. appeared reliable, she had no reason to believe P.C. was lying or was coached, she did not notice any red flags, P.C.’s terminology in disclosing the sexual abuse was consistent with her age, and P.C.’s description of the abuse was fairly detailed and consistent with her age. Based on its findings, P.C.’s demeanor, and the way in which the interview was conducted, the trial court determined that the hearsay statements were admissible. As such, the record contradicts Appellant’s assertion that the trial court was not specific enough in its findings of reliability.

Contrary to the dissent’s suggestion, the statute and case law did not require the trial court to explain the seemingly nonsensical and nonresponsive answers the five-year-old gave, which, Kemper testified, could be expected from a child her age, or how those responses factored into its ruling. The dissent cites Salter v. State, 500 So.2d 184, 185-86 (Fla. 1st DCA 1986), where this Court stated:

Authorities indicate that in order to balance the need for reliable out-of-court statements of child abuse victims against the rights of the accused, the Legislature enacted this exception which will apply only if a number of foundation requirements have been shown to exist. Ehrhardt, Florida Evidence, § 808.23(a) (2d Ed.1984). Specifically, before the trial court may admit the statement of a child who testifies during the trial under this exception, the trial court is required to (1) hold a hearing outside the presence of the jury to determine that the circumstances surrounding the making of the statement demonstrate that the statement is reliable, and (2) make specific findings of fact on the record setting forth the reasons why the trial court determined that the statement was reliable and why the reasons indicating lack of reliability were discounted. Finally, the prosecution is required to give the defendant notice of its intent to offer at trial a statement under this exception, such notice to include the contents of the child’s statement, the time the statement was made, the circumstances surrounding the statement which indicates its reliability, and any other particulars “necessary to provide full disclosure of the statement.” Id.

(Emphasis added.) See also Weatherford v. State, 561 So.2d 629, 638 (Fla. 1st DCA 1990) (finding that the trial court erred by not complying with section 90.803(23)(c)’s requirement “to make specific findings of fact on the record, setting forth the reasons the court determined the out-of-court statements to be reliable, and the reason it discounted any indications of a lack of reliability. Griffin v. State, 526 So.2d 752, 757 (Fla. 1st DCA 1988)”).

However, as we subsequently explained: Section 90.803(23)(c), Florida Statutes, requires only that “the court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.” There is no statutory requirement that findings necessarily reflect a balance of indicia of unreliability with indicia of reliability. The appellant cites Ehrhardt, Florida Evidence, section 803.23(a) (2d ed. Supp.1989), to support his argument. Ehrhardt indicates that the statutory provision regarding findings on 'the record “envisions that the court will set forth the specific reasons that the court relied upon as well as why the reasons indicating a lack of reliability were discounted.” Ehrhardt, Florida Evidence (2d ed. Supp.1989) (emphasis added). This portion of Ehrhardt is quoted in Salter v. State, 500 So.2d 184, 185 (Fla. 1st DCA 1986), and Griffin v. State, 626 So.2d 752 (Fla. 1st DCA 1988). It is noteworthy, however, that neither of these cases nor Ehrhardt’s Evidence elaborates further. Although it may be useful in certain instances to have findings weighed in such a manner, we do not find it to be required by Florida law.

Davis v. State, 669 So.2d 1317, 1317-18 (Fla. 1st DCA 1990). In a footnote, the Court further explained:

While Griffin v. State, 526 So.2d 752 (Fla. 1st DCA 1988), and Weatherford v. State, 561 So.2d 629 (Fla. 1st DCA 1990), also contain the language derived from Ehrhardt, there is no indication in either of these opinions, or.in Salter, that the trial judge made case-specific factual findings which would sufficiently indicate reliability. Because there are sufficient case-specific findings in the instant case, the holdings in these cases do not address the issue presently before the court

Id. at 1318 n. 1. Cf. Wade v. State, 586 So.2d 1200, 1204 (Fla. 1st DCA 1991) (“In admitting the out-of-court statements of the child, the trial court’s findings lacked sufficient detail to relieve the trial court of its obligation to address indicia of unreliability as well as indicia of reliability.”) (Citing Davis). In fact, the statute and case law merely suggest factors trial courts may consider in making the requisite factual findings, see § 90.803(23)(a)1., Fla. Stat.; Townsend, 635 So.2d at 957-58; Small) 179 So.3d at 424, and in this case the trial court made sufficiently detailed case-specific factual findings.

Conclusion

Accordingly, we conclude the trial court did not err in admitting the hearsay statements contained in the CPT video and, therefore, affirm Appellant’s judgement and sentence.

AFFIRMED.

OSTERHAUS, J., specially concurs with opinion; WINSOR, J., dissents with opinion.

While Appellant argued there was evidence of domestic violence and it should be considered, he conceded there was no evidence of the mother putting P.C. up to making the allegation against Appellant. For example, when the trial court inquired, "That’s why I was looking, you know, did mama come and say, listen, you know ... you need to go do this or asked a lot of leading questions of the child. Do you have anything like that?,” defense counsel replied, "No,” and when he continued to argue the domestic dispute factor and the court said, "That’s why I want to know ... is it something that mama put her up to. There’s no indication from what I have so far,” he responded, "Right.”