Granados v. State

199 So. 3d 384, 2016 Fla. App. LEXIS 12457, 2016 WL 4379036
CourtDistrict Court of Appeal of Florida
DecidedAugust 17, 2016
DocketNo. 4D13-4233
StatusPublished
Cited by2 cases

This text of 199 So. 3d 384 (Granados 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
Granados v. State, 199 So. 3d 384, 2016 Fla. App. LEXIS 12457, 2016 WL 4379036 (Fla. Ct. App. 2016).

Opinion

WARNER, J.

Convicted of multiple counts of sexual battery by a person eighteen years of age upon a person less than twelve years of age, namely his daughter, appellant appeals, raising three issues. First, he contends that the court erred in considering corroborating evidence in determining whether to admit the child’s out-of-court statement. The child also testified at trial. We find that the court did not err in considering corroborating evidence at the hearing on admission of the child’s out-of-court statement. Second, he claims that he was entitled to a judgment of acquittal on two of the four counts because of lack of evidence as to those two counts. Because the child’s out-of-court statement, admitted in evidence, provided proof of these two incidents, we affirm.- Finally, he contends that the State improperly shifted the burden of proof in its cross-examination of appellant during trial. We conclude the burden was not shifted, but in any event, it was harmless beyond a reasonable doubt. We affirm.

Appellant was charged with four counts of sexual abuse of his daughter. The abuse began when the daughter was about seven and continued until the daughter was eleven years old, when she told a friend about it. The friend told her mother, who reported it to the police. The daughter was examined by a nurse practitioner, to whom the child made several statements regarding the extent of the sexual abuse and that her father was the perpetrator. The child also made a statement to the investigating detective.

The State provided notice that it intended to offer both statements at trial as child hearsay statements pursuant to section 90.803(23), Florida Statutes (2015). The court held a hearing at which the nurse practitioner testified to the statements made by the child. The State also asked her about her examination of the child and any injuries she observed. Defense counsel objected, without specifying the nature of the objection, which was overruled, and the nurse testified that she observed a tear of the child’s hymen which was a “strong indicator” of penetration. The investigating detective also testified to the statements made by the child during her interview with the child. The child’s recorded statement was played, which detailed the various acts committed by appellant. After the statement was played, the detective testified that when she went to apprehend appellant at his place of work, he attempted to flee. Defense counsel objected on the grounds that the court was not to consider corroborating evidence when determining admissibility, and the court sustained the objection.

The trial court entered an order finding that the child’s statement was admissible. The court addressed each factor necessary to determine whether the statement should be admitted and concluded that the child’s out-of-court statements were reliable. The court specifically found:

The child made detailed statements about the abuse to the interviewer. The description was age appropriate. The child responded to open ended questions by the examiner in describing the acts of abuse.
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The child demonstrated the ability to tell the truth from a lie. She was well spoken and articulate. No motive for fabricating the statements was evident in the interview. The child gave a detailed description of the defendant’s genitalia. The child specifically recalled the acts of sexual abuse in describing the position she was in and the defendant was in, where the abuse would occur and how it occurred. The child used age [387]*387appropriate language in describing the abuse.

The order mentioned the fact that the nurse had observed the tear which was an indicator of penetration, but it did not include any reference to the detective’s statement that appellant attempted to flee.

At trial, the child, who was twelve at the time of trial, testified to the abuse by her father and gave details which were consistent with her prior statements. She was subject to cross-examination. The nurse testified as to her physical examination of the victim, as well as the statements that the child made to her. The investigating detective testified and, over objection, the tape of the interview with the child was played.

The defense moved for judgment of acquittal on two counts involving digital penetration, citing lack of evidence of such conduct for the periods alleged in the information. The trial court denied the motion.

Appellant then testified, claiming that he had never engaged in any sexual contact with his daughter. On cross-examination, the State asked appellant, “And is it your position, sir, that [the victim] has made these very specific allegations about you repeatedly and consistently for no good reason?” Defense counsel objected to the question as improperly shifting the burden. The court overruled the objection, and the State asked again why the victim would make up “these outrageous ... lies.” Appellant suggested that someone else might be influencing her, and the state questioned the defendant on who that might be, for which the defendant admitted he didn’t know. Defense counsel then rested and renewed the defendant’s motion for judgment of acquittal, which the court denied.

The jury found appellant guilty as charged on all counts. He was adjudicated guilty and sentenced to concurrent life sentences on all five counts, with a twenty-five year minimum mandatory on count five as a sexual predator. A timely notice of appeal was filed.

In his first issue, appellant argues that the trial court erred in admitting the victim’s out-of-court hearsay statements because the court impermissibly relied on corroborating testimony, namely the nurse’s testimony of the victim’s injuries and the detective’s testimony of appellant’s flight. The State counters that appellant failed to preserve the objection to the nurse’s testimony because it did not specify the nature of the objection. The only objection appellant made to the nurse’s testimony during the hearing to determine the reliability of the out-of-court statement by the child, was when the State asked whether the victim’s injury was “consistent with the report that [the victim] made[.]” Defense counsel merely stated “Objection,” which the court overruled without further discussion.

“While no magic words are required to make, a proper objection ... the concern articulated in the objection must be sufficiently specific to inform the court of the perceived error.” Aills v. Boemi, 29 So.3d 1105, 1109 (Fla.2010). Here, defense counsel did not specify the nature of the objection. Although counsel raised the specific legal argument later on with regard to the detective’s testimony regarding appellant’s flight, counsel did not make that objection to the nurse’s testimony. We agree with the State that the issue has not been preserved as to the nurse’s testimony. As to the detective’s testimony regarding appellant’s flight, the court sustained the objection and never mentioned it in its order.

[388]*388Even if the defense objection to the nurse’s testimony properly preserved the objection, we would still affirm. Section 90.803(23)(a), Florida Statutes (2015), sets forth the standard for admitting hearsay statements of a child victim in sexual abuse cases:

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Cite This Page — Counsel Stack

Bluebook (online)
199 So. 3d 384, 2016 Fla. App. LEXIS 12457, 2016 WL 4379036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granados-v-state-fladistctapp-2016.