Elwell v. State

954 So. 2d 104, 2007 WL 1201597
CourtDistrict Court of Appeal of Florida
DecidedApril 25, 2007
Docket2D05-907
StatusPublished
Cited by14 cases

This text of 954 So. 2d 104 (Elwell v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elwell v. State, 954 So. 2d 104, 2007 WL 1201597 (Fla. Ct. App. 2007).

Opinion

954 So.2d 104 (2007)

Thomas ELWELL, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-907.

District Court of Appeal of Florida, Second District.

April 25, 2007.

James Marion Moorman, Public Defender, and James C. Banks, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

CANADY, Judge.

Thomas Elwell appeals his conviction for attempted lewd and lascivious molestation. *105 We affirm his conviction but write to address Elwell's argument that the trial court made insufficient factual findings in ruling that child-hearsay testimony was admissible. Because Elwell failed to make a contemporaneous objection, we conclude that this issue is unpreserved.

I. Background

Elwell was charged with lewd and lascivious molestation. The alleged victim was the eleven-year-old nephew of a friend of Elwell. Prior to trial, the State filed a notice of intent to introduce child-hearsay statements and the defense filed a motion to strike the notice. The trial court held a hearing on the issue. At the hearing, the victim testified to the events surrounding the offense and an investigating officer testified regarding the victim's statements to him. At a continued hearing held the day before trial, the State introduced the victim's grandfather, who testified regarding statements made to him by the victim the morning after the offense.

At the close of the pretrial hearing, the trial court ruled that the officer's statements were inadmissible but that the grandfather's statements were admissible: "I agree with [defense counsel] about the officer. I don't think I'll let his testimony in. But I believe everything [the grandfather] testified to today is admissible and relevant, and it will come in." The trial court made no further findings. After the trial court made its ruling at the conclusion of the pretrial hearing, the trial court asked if there was anything else and Elwell's counsel made no response. The proceedings then concluded. At no point in the pretrial or trial proceedings did Elwell offer an objection regarding the trial court's findings.

At trial, the grandfather testified regarding the victim's statements to him. The victim and the victim's aunt, Elwell's friend, also testified. The jury returned a guilty verdict for the lesser-included offense of attempted lewd and lascivious molestation. The trial court sentenced Elwell to thirty years' imprisonment as a habitual violent felony offender.

II. Argument on Appeal

On appeal, Elwell argues that the trial court erred in failing to make the specific findings required by section 90.803(23), Florida Statutes (2003),[1] before admitting the child-hearsay statements into evidence. Elwell also contends that the admission of the child-hearsay testimony was harmful error because it bolstered the credibility of the child victim.

The State responds that Elwell failed to preserve the specific objection he now makes. The State also argues that it makes no difference whether the trial court deems the hearsay statements to be reliable because Elwell had an opportunity to cross-examine the victim prior to trial.

III. Analysis

A. General Requirements Regarding Preservation of Error

Section 924.051, Florida Statutes (2003), which was originally adopted in 1996, provides in subsection (3):

*106 An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.

(Emphasis added.) Preserved is defined to mean "that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor." § 924.051(1)(b) (emphasis added).

Proper preservation thus involves these components:

First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, "[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." The purpose of this rule is to "place[ ] the trial judge on notice that error may have been committed, and provide[ ] him an opportunity to correct it at an early stage of the proceedings."

Harrell v. State, 894 So.2d 935, 940 (Fla. 2005) (alterations in original) (citations omitted).

B. The Case Law Regarding the Preservation of Objections Concerning the Sufficiency of Findings Under Section 90.803(23)

This court has held that a defendant must object to the sufficiency of the trial court's findings regarding the admissibility of child-hearsay statements in order to raise the legal error on appeal. See Poukner v. State, 556 So.2d 1231, 1232 (Fla. 2d DCA 1990) ("Poukner contends that the trial court erred in admitting the hearsay statements of the child victims because [it] failed to make the specific findings required in section 90.803(23), Florida Statutes (1985). This issue was not preserved for our review as no objection was made when the trial court found the statements admissible."); Stone v. State, 547 So.2d 657, 660 (Fla. 2d DCA 1989) ("[D]efense counsel did not object to the sufficiency of the trial court's findings. Except in cases of fundamental error, this court will not consider an issue unless it was specifically raised as the legal basis for the objection in the trial court.")

In Hopkins v. State, 632 So.2d 1372 (Fla.1994), Hopkins challenged both the sufficiency of the factual findings under section 92.54, Florida Statutes (1989) (the statute allowing a child to testify outside of the courtroom after the trial court has made specific findings of fact) and the sufficiency of the factual findings under section 90.803(23), Florida Statutes (1989). Prior to the child's testimony, Hopkins objected to the child's being permitted to testify outside the presence of the jury and the defendant. Id. at 1375. The court held that "[a]lthough the objection did not specifically address the sufficiency of the factual findings under section 92.54, it properly raised the issue of Hopkins' constitutional right `to be confronted with the witnesses against him.'" Id. (quoting Amend. VI, U.S. Const.); Fla. R.App. P. 9.800(n). The court also held that "the factual findings required by section 92.54 are necessarily related to the constitutional right to confrontation." Id. The court concluded that "defense counsel's `confrontation *107 rights' objection necessarily called into question whether the statutory procedures had been followed" and that the issue was preserved for appeal. Id. at 1375-76.

As for the findings under section 90.803(23), Hopkins objected at the close of the pretrial hearing "to the admissibility of the hearsay statements, arguing that there was no showing of reliability." 632 So.2d at 1376.

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Cite This Page — Counsel Stack

Bluebook (online)
954 So. 2d 104, 2007 WL 1201597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elwell-v-state-fladistctapp-2007.