Garcia v. State

659 So. 2d 388, 1995 WL 421258
District Court of Appeal of Florida·Decided July 19, 1995·No. 93-02918·Published·Cited by 17 cases

Opinion

659 So.2d 388 (1995)

Rolando GARCIA, Appellant,
v.
STATE of Florida, Appellee.

No. 93-02918.

District Court of Appeal of Florida, Second District.

July 19, 1995.
Rehearing Denied August 18, 1995.

*389 Regina W. Cosper, Sarasota, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and John M. Klawikofsky, Asst. Atty. Gen., Tampa, for appellee.

LAZZARA, Judge.

The appellant, Rolando Garcia, challenges his judgment and sentence for committing a lewd and lascivious act upon a child under the age of sixteen years. He argues, and we agree, that the trial court committed reversible error in failing to make the proper findings of reliability required by section 90.803(23), Florida Statutes (1991), prior to admitting hearsay statements of the child victim into evidence at trial. Because we *390 conclude that the admission of these statements constituted harmful error, we reverse and remand for a new trial.

The state charged appellant in count one of a criminal information with committing a lewd and lascivious assault on a child in violation of section 800.04(1), Florida Statutes (1991), alleging that the incident occurred between September 1 and November 30, 1991.[1] Prior to trial, it filed the required notice under section 90.803(23)(b) notifying the appellant of its intent to introduce at trial certain hearsay statements made by the child relating to the offense charged. The appellant responded with a motion in limine, contending in part that the statements were inconsistent with each other and with evidence to be presented at trial and concluding generally that they lacked trustworthiness and reliability. He also asserted that under section 90.403, Florida Statutes (1991), their probative value was substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

The trial court later conducted the hearing required by section 90.803(23)(a)1., during which it received the testimony of three witnesses to whom the child made statements. It also reviewed a videotape of the child's statement given to a member of the local child protection team. The evidence presented by the state at this hearing consisted of the following.

The child made the first hearsay statement to Dr. Herbert Goldstein, a certified facilitative listener employed by the local school board at the child's school. He testified that the child approached him at school in late winter or early spring of 1992 and advised that she had been sleeping on the couch when her mother's boyfriend placed his hand under her nightgown and touched her "privates." Dr. Goldstein further related that the child did not identify the boyfriend nor give a date when this incident occurred.

The child gave the second statement to her aunt, Patsey Devine, at a family picnic on Memorial Day of 1992. According to Ms. Devine, the child told her that during the night, or when her mother was not at home, the appellant would come into her bedroom and touch her "privates" and "finger" her. The child never furnished a date when this activity took place.

The child made a third hearsay statement to her teacher, Paulette Chadwell, at school on October 28, 1992. Ms. Chadwell testified that the child told her that her mother's boyfriend tried to have sexual intercourse with her on two different occasions and, although he tried to penetrate her, he was unable to do so. Once again, the child supplied no details as to dates nor did she identify the boyfriend.

Finally, the child gave a fourth statement to Connie Karanicolas of the child protection team during a videotaped interview on November 6, 1992. On the tape, the child stated she was sleeping in the living room when she awoke from a weird dream and found appellant placing his hand under her nightgown. She further related that although appellant tried to insert his fingers inside her "privates," he did not do so. Although she was unsure, she thought this incident occurred before Halloween of the previous year, probably in September.

Following the hearing, the trial court reserved ruling on the state's request to introduce these statements at appellant's trial. It later issued a written order finding they were admissible under section 90.803(23). In that order, the trial court recited the age of the child and summarily determined, without explanation, that she was mentally above average and highly credible, that her statements were made over a one-year period of time, that her statements were not vague but materially consistent with the crime charged, and that her statements were in her own words, thus indicating no outside influence. It also concluded, without further explanation, that "[t]he time, place, and occurrence of the statements made by the child victim to each of the respective witnesses were appropriate[,]" *391 and that these statements satisfied "the threshold criteria test of [section] 90.803(23) for being trustworthy." Finally, the trial court ruled that the statements were not "cumulative since the only evidence of the criminal acts complained of is the testimony of the child victim[,]" nor would their introduction into evidence, under the totality of the circumstances, "unfairly prejudice the defendant, confuse the issues at trial, or mislead the jury."

At the trial held in August of 1993, the state relied on the child's testimony, substantially the same hearsay statements testified about at the hearing, and the videotaped interview. The substance of the child's testimony was as follows. One night while she was sleeping in the living room with one of her sisters, she awoke from a dream to find appellant, who was her mother's boyfriend at the time, placing his hand inside of her underwear and his fingers inside of her vagina. She also testified that her mother and three of her other siblings were asleep in other areas of the home. According to the child, she recalled that the incident occurred sometime after Halloween, but before Thanksgiving, because she remembered disposing of her sisters' Halloween costumes.

The child also testified that she did not immediately tell her mother since her mother was happy with the appellant, and she did not want to cause her mother any unhappiness. She did admit, however, that she did not like her mother living with appellant because whites should not live with nonwhites. Finally, the child denied ever telling her teacher that the appellant tried to have sexual intercourse with her on two occasions. She claimed, instead, that she told the teacher appellant had bothered her at two different times and that she "thought he might have tried to have sexual intercourse with me once."

The appellant testified in his own defense and denied ever sexually molesting the child. As noted, however, the jury convicted him of the incident charged in count one but acquitted him of the incident charged in count two. The trial court later sentenced him to fifteen years in prison.

Against this factual backdrop, we turn to an analysis of the law governing a trial court's determination as to the admissibility of child hearsay statements under section 90.803(23) and whether the trial court in this case complied with that law. As noted by the supreme court, "[s]ection 90.803(23), the child-sexual-abuse-hearsay exception, was enacted to enable trustworthy and reliable statements not covered under any other hearsay exception to be admitted in court." State v. Townsend, 635 So.2d 949, 953 (Fla. 1994) (emphasis in original).

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Garcia v. State, 659 So. 2d 388, 1995 WL 421258 (Fla. Ct. App. 1995).

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