Powell v. State

99 So. 3d 570, 2012 Fla. App. LEXIS 17889, 2012 WL 4900574
District Court of Appeal of Florida·Decided October 16, 2012·No. No. 1D10-4789·Published·Cited by 13 cases

Opinion

PADOVANO, J.

The defendant, Wayne Powell, appeals his conviction for capital sexual battery. He contends that the trial court erred by admitting two extrajudicial statements into evidence under the excited utterance exception to the hearsay rule. We conclude that both of these statements should have been excluded, because the declarants were recounting events that had taken place many years earlier and they were no longer under the stress of excitement from those events. Because we cannot say beyond a reasonable doubt that the error in admitting the statements was harmless, we reverse for a new trial.

By an information filed on April 5, 2010, the state charged the defendant with the crime of sexual battery of a person under the age of twelve. According to the information, the crime was committed on or before June 1, 1997. The alleged victim is the defendant’s stepdaughter. At the time of the offense, she was living in Tallahassee with her mother, her older sister, and the defendant. The victim is now an adult.

The defendant pled not guilty to the charge, and the case proceeded to trial. At the close of the trial, the jury informed the court that it was not able to reach a verdict, and the judge declared a mistrial. The case was tried again before another jury, and the defendant was found guilty. In the second trial, the defendant raised the evidentiary issues that are under consideration in the present appeal.

The victim told the jury that the abuse began when she was about eight years old. She said that the defendant would look at her when she was naked and that he would touch her breasts and her vagina. This behavior progressed to a point at which the defendant would penetrate her vagina with his tongue and force her to have oral sexual contact with him. The victim was upset by the defendant’s actions. She asked him to stop on several occasions but she did not disclose the abuse to anyone else until many years later.

On direct examination, the prosecutor asked the victim about a conversation she had had with her mother in May 2008, when she was twenty-one years old. Defense counsel objected to this evidence on the ground that it was hearsay, but the objection was overruled. The victim testified that her mother called her to ask if the defendant had sexually molested her when she was a child. The victim said that it was not true but she called her mother back a few minutes later to say that it was true.

The trial court concluded that the victim’s denial of the abuse in the first phone call was not hearsay and that her confirmation of the abuse in the second phone call was admissible under the hearsay ex[572] ception for excited utterances. The victim testified that she was worried and scared when her mother called her to ask about the abuse and that her first instinct was to deny it. She decided to call her mother back to tell her the truth but, by that time, she was very upset. The prosecutor argued that the phone call from the victim’s mother came from “out of the blue” and that the victim did not have time to reflect on the matter in the short time before the second phone conversation in which she disclosed the abuse she had suffered as a child.

On cross-examination, the victim admitted that she had previously denied the molestation when asked about it by social workers in North Carolina. She explained that her former husband had been trying to get custody of their daughter and that she had lied about the abuse because she was living in the defendant’s home at that time and she was afraid that she would lose custody of the child if the social workers and the judge knew that the defendant had molested her as a child.

Prior to trial, the court had ruled that the state would be allowed to present evidence that the defendant had committed similar offenses against the victim and her older sister. The victim’s sister testified at trial that the defendant had sexually assaulted her when she was a child. She said that she decided to tell her mother about the abuse because she had learned that the defendant was going to be babysitting the victim’s daughter, and she did not want the same thing to happen to the child.

The prosecution called the victim’s mother as a witness and asked her about this conversation with the victim’s older sister. The defense objected on the ground of hearsay but, once again, the court concluded that the statement by the victim’s sister qualified as an excited utterance. The court reasoned that when the victim’s sister spoke with her mother, she was fearful of potential sexual abuse against her niece, and she was very upset by the prospect of telling her mother about her own sexual abuse as a child.

The victim’s mother then recounted the substance of her telephone conversation with the victim’s older sister. She said that the sister told her the defendant had sexually abused her as a child. The mother did not believe her at first, so the sister told the mother that she should call the victim. This led to the two phone calls between the victim and her mother in which the victim at first denied that the defendant had sexually assaulted her and then called back to say that he had.

Defense counsel called as defense witnesses Jeffrey and Emily Powell, the defendant’s children by a former marriage. When the defendant married the victim’s mother, Jeffrey and Emily were living with their mother, but they came to the defendant’s house for regular weekend visits. Several years later, they moved into the house with the defendant, his wife, and their two stepsisters.

Emily Powell testified that she shared a bedroom with the victim and the victim’s sister. She testified that while they were growing up together neither of the sisters ever gave the appearance that they had been abused. They participated in family activities, and it did not appear to her that they were upset with the defendant or that they did not want to be around him. Ms. Powell had many private conversations with her stepsisters over the years, and they never gave any indication that they had been mistreated by her father.

The jury found the defendant guilty of capital sexual battery, and the case is now before this court on appeal from the conviction. In this court, as in the trial court, [573] the defendant argues that the prior out-of-court statements by the victim and her sister should have been excluded as hearsay.

Trial judges have discretion to rule on some kinds of evidence issues, but whether a statement falls within the statutory definition of hearsay is a question of law. See Burkey v. State, 922 So.2d 1033 (Fla. 4th DCA 2006). Likewise, whether evidence is admissible in evidence under an exception to the hearsay rule is a question of law. See Chavez v. State, 25 So.3d 49 (Fla. 1st DCA 2009). Thus, we review the issue presented here by the de novo standard of review.

Section 90.802 of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. Hearsay is defined in section 90.801(l)(c), Florida Statutes as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” See Charles W. Eh-rhardt, Florida Evidence, § 801.1 (2012).

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Powell v. State, 99 So. 3d 570, 2012 Fla. App. LEXIS 17889, 2012 WL 4900574 (Fla. Ct. App. 2012).

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