Paul Frank Small, Jr. v. State of Florida , 2015 Fla. App. LEXIS 16919 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PAUL FRANK SMALL, JR., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-4551
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed November 12, 2015.
An appeal from the Circuit Court for Santa Rosa County.
Hon. John L. Miller, Judge.
Nancy A. Daniels, Public Defender, and Richard M. Summa and Megan Long,
Assistant Public Defenders, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney
General, Tallahassee, for Appellee.
RAY, J.
In the single issue raised in this appeal, we must determine whether the trial
court abused its discretion by finding that out-of-court statements made by a six-
year-old girl, which describe incidents of sexual abuse by her father, were reliable
and therefore admissible as evidence against her father at trial. Appellant (the
father) claims that his daughter’s statements were the product of leading questions
or other suggestive techniques, rendering the statements unreliable, despite the trial
court’s express finding to the contrary. Because the trial court conducted the proper
evaluation to determine whether the child’s statements were reliable, and
competent, substantial evidence supports the trial court’s findings, we conclude
that the hearsay statements were properly admitted. Appellant’s convictions and
sentences are therefore affirmed.
I.
Appellant was charged with two counts of sexual battery on a victim under
twelve, one count of lewd or lascivious molestation of a victim under twelve, and
one count of lewd or lascivious exhibition in the presence of a victim under
sixteen. In addition to calling the child to testify at trial, the prosecution intended to
rely on statements the child made during a forensic interview with a member of the
county’s Child Protection Team (CPT).
Prior to trial, the State filed a notice of intent to offer the child’s statements
as a hearsay exception pursuant to section 90.803(23), Florida Statutes (2012), and
the court held a hearing on their admissibility. During the hearing, the CPT
interviewer testified that her protocol is to “ask questions that are not leading and
try to do open-ended questions as much as possible.” She explained that the goal is
to allow the child to give a statement in his or her own words. Defense counsel
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claimed that during the interview, the child started to discuss an incident involving
a young boy, not Appellant, and that the interviewer interrupted the child and
redirected the discussion. Defense counsel argued that this occurrence made the
interview improper and unreliable. The prosecution responded that the child had
already disclosed a number of acts of sexual abuse involving Appellant before she
ever brought up the incident involving the young boy. The child had already told
the interviewer that her father had previously touched her without any clothes on,
and that after he touches her, she touches him. She claimed that he did it more than
once, “one time when [she] was six, two times when [she] was five, [and] three
times when [she] was four.” The prosecution argued that it appeared the child was
clearly talking about two separate things, acts that she attributed to Appellant and
distinct acts she attributed to the young boy.
The portion of the interview that Appellant contends rendered the child’s
incriminating statements against him unreliable states:
CHILD: Well, we laid in the bed and touched each other. My dad
didn’t have any clothes on. He told me to take off my clothes, so I
agreed; but [J.] was the one, who really is not in my family. And [J.]
is the one that’s not my brother or in my family; but he’s a boy. He’s
Jordan’s baby brother. He’s only ten.
INTERVIEWER: Okay. And –
CHILD: When I was four and he – he was eight when I was four. And
he told me to take off my shirt, and my pants, and my shoes, socks.
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And he said, “If you do that –” he’ll give me $10. But he tricked me.
He didn’t do it. He wanted me to do it on purpose.
INTERVIEWER: Okay.
CHILD: There was another boy there that saw it. I didn’t want [J.] to
do it, but [J.] liked me too much, he had to do that. Papa, his daddy,
and his mommy spanked him and got him in trouble and grounded.
INTERVIEWER: Okay. Okay. [A.S.], let’s start talking about the
time with your dad when you were six years old.
CHILD: Okay.
INTERVIEWER: Let’s talk about that first. Okay? Was anybody else
there? Okay.
After reviewing the interview recording and considering argument of counsel, the
trial court determined that this portion of the interview did not render the interview
unreliable.
The trial court announced its detailed ruling from the bench, finding that the
statements and the interview recording in its entirety were admissible because the
“time, content and circumstances of the statements” provided “sufficient
safeguards of reliability, and it [met] the statutory criteria and the criteria in State
v. Townsend.” * In making this finding, the trial court considered the child’s mental
and physical age; the nature and duration of the abuse; the relationship of the child
to the offender; the reliability of the child’s assertion; the reliability of the victim;
*
State v. Townsend, 635 So. 2d 949 (Fla. 1994).
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the spontaneity of the statements; whether the statements were in response to
questions asked from adults and the environment, context, and methodology used
by the interviewer; whether the statements were made at the first opportunity
following the alleged incident; whether the statements included a child-like
description of the act; whether there was evidence of any motive or lack thereof to
fabricate the allegations; the ability of the child to distinguish fantasy and reality;
the vagueness of the accusations; the possibility of any improper influence on the
child; and whether there were any inconsistencies in the accusations. The trial
court made case-specific findings by considering the language and gestures of the
child and relating them to factors suggested by statute and case law.
At trial, the child, a Department of Children and Families caseworker, a
detective, the CPT interviewer, and Appellant testified. The recorded interview
between the child and the CPT interviewer was played for the jury. Appellant was
subsequently convicted of all of the charges. This appeal followed.
II.
The standard of review applied to a trial court’s finding that the hearsay
statements of a child victim are reliable and come from a trustworthy source,
making them admissible pursuant to section 90.803(23), is abuse of discretion.
Jones v. State, 728 So. 2d 788, 790 (Fla. 1st DCA 2011); see Perez v. State, 536
So. 2d 206, 210 (Fla. 1988).
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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)(1); 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); see also Hopkins v. State, 632 So. 2d 1372, 1376-
77 (Fla. 1994) (noting that mere recitation of the statute in the absence of specific
findings of reliability “ignores the clear directive of the statute” and also implicates
defendants’ constitutional rights to confrontation); Barton v. State, 704 So. 2d 569,
575 (Fla. 1st DCA 1997) (determining that conclusory findings by a trial court are
not adequate).
Here, the trial judge considered factors suggested by section
90.803(23)(a)(1) and State v. Townsend and announced his extensive findings on
the record. For each finding the court announced, it also provided a detailed
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explanation of its reasoning. For example, in relation to the child’s mental and
physical age, the court stated the following:
First, the mental and physical age of the child. The child is six years
of age. She appeared to me to be very bright. She stated she was in
kindergarten. She had a very detailed memory, not only about the
events that she described, but other things as well, such as what
happens in kindergarten, what happens in school, names of her
classmates that cause trouble in class, et cetera.
The court noted that the child’s descriptions of the acts with Appellant were child-
like, reciting specific language meeting this description. The court observed, based
on the specific descriptions the child provided, that a child would not even be able
to speak that way without experiencing what she described.
Another factor the trial court considered was whether there were any
inconsistencies in the child’s accusations. The court found the child was consistent
throughout and addressed Appellant’s concern about the young boy as follows:
My review of the video tape and of the statements proffered in
paragraph two of the notice of intent, there were no inconsistencies
that I can see. The child’s story was consistent throughout. She
described another event with another person whose name, I think, was
[J.], but I’m not sure I remember the exact name.
And I think the state captured the essence of that when they argued
that when they suggested that it was two different incidents, two
different things, that doesn’t necessarily mean there’s an
inconsistency. It just means that something else in addition to that
might have happened.
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III.
We conclude that the trial court’s findings concerning the reliability of the
child hearsay statements are specific, properly placed on the record, and supported
by competent, substantial record evidence. We further find that the judge analyzed
the child’s statements according to the factors suggested by statute and case law
and appropriately assessed Appellant’s concern about the additional allegations
involving a separate offender. We commend the trial court for making a thorough
record, and we affirm Appellant’s convictions and sentences.
AFFIRMED.
ROBERTS, CJ., and THOMAS, J., CONCUR.
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