Opinion
No. 1D21-2691.
11-23-2022
James Johnston STEVENS, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary , Public Defender, and Tyler Kemper Payne , Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody , Attorney General, and Virginia Harris , Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary , Public Defender, and Tyler Kemper Payne , Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody , Attorney General, and Virginia Harris , Assistant Attorney General, Tallahassee, for Appellee. Rowe, C.J.
James Johnston Stevens appeals his judgment and sentence for three counts of capital sexual battery. He argues that the trial court reversibly erred when it denied his motion for a judgment of acquittal on counts two and three. We affirm Stevens' conviction on count two without further comment. As to count three, Stevens asserted that there was insufficient evidence to support his conviction on that count because when the child victim testified at trial, she totally repudiated her prior out-of-court statements about the charged sexual act. We affirm his conviction because the child did not totally repudiate her out-of-court statements and because other evidence corroborated those statements.
Facts
The State charged Stevens with three counts of capital sexual battery on the three-year-old victim. Count one alleged that a union occurred between Stevens' mouth and the child's vagina. Count two alleged that a union occurred between Stevens' penis and the child's mouth. And count three alleged a penile-vaginal union.
When the case went to trial, the victim was five years old. The victim was so nervous when she started to testify that she needed to take a break. She could not identify Stevens—a close relative—in the courtroom. Even so, she remembered him as a man who lived in her house when she was three years old. The victim remembered that Stevens would bathe with her in the tub and that Stevens licked her butt. Both were unclothed. But later in her testimony, the victim denied ever seeing Stevens' penis. Even so, she recalled that Stevens licked her "no-no spot." She testified that she told Stevens that it hurt when he licked her there, but he did not stop. The victim then testified that no part of Stevens' body, other than his tongue, touched her vagina. She did not tell her mother right away because Stevens told her not to tell.
The victim's mother also testified at trial. She explained that Stevens lived with her and was the child's primary caregiver while she was at work. When the victim was three years old, the mother noticed that her daughter began experiencing vaginal itchiness and redness. The mother was concerned that her daughter may have had a yeast infection or diaper rash. But when the problem did not resolve with treatment, the mother began to suspect that the child was being sexually abused.
One day when Stevens was away from the home, the victim started acting like her vaginal area was irritating her. The mother asked her daughter whether anyone had looked at her vaginal area. The child responded that Stevens had looked at her vagina and licked it. The child then explained to her mother that she did not tell her sooner because it was a secret and Stevens would be mad.
The mother reported the victim's disclosures to law enforcement. A child protection team then interviewed and examined the victim. Stephanie McBride conducted the forensic interview of the child. During the interview, the victim disclosed that Stevens licked her vagina and buttocks. She also told McBride that Stevens touched her vagina with his penis and that Stevens made her suck and lick his penis.
Cynthia Reeves, a nurse practitioner, conducted the medical examination of the victim. When Reeves obtained a medical history from the victim, she reported that Stevens licked her vagina and butt, she licked and sucked his penis, and his penis got stuck in her vagina. Reeves' physical examination revealed redness of the child's inner labia. Reeves testified that the vaginal irritation could have been caused by the actions the victim described. At the end of the State's case, Stevens' counsel moved for judgment of acquittal on count three because the victim denied any penile-vaginal union in her trial testimony. The court denied the motion, finding that the jury could resolve the conflict between the child's trial testimony and her out-of-court statements to her mother, McBride, and Reeves.
Stevens testified and denied all allegations against him. The defense rested and renewed the motions for judgment of acquittal. The trial court again denied the motions.
The jury found Stevens guilty as charged. The court sentenced Stevens to three concurrent terms of life imprisonment. This timely appeal follows.
Standard of Review
We review the trial court's ruling denying the motion for judgment of acquittal de novo. Sanders v. State, 318 So.3d 605, 610 (Fla. 1st DCA 2021). We must affirm that ruling if competent, substantial evidence supports each element of the crime. Id. at 611. Viewed in the light most favorable to the State, we find that the State met its burden here. Id.
Analysis
The State charged Stevens with capital sexual battery under section 794.011(2)(a), Florida Statutes (2018). To prove the offense charged in count three, the State had to show that (1) Stevens committed an act on the victim in which his sexual organ had union with the victim's vagina, (2) the victim was younger than twelve years old at the time of the offense, and (3) Stevens was eighteen or older at the time of the offense. Fla. Std. Jury Instr. (Crim) 11.1. Only the first element was in dispute. During the forensic interview with the child protection team, the victim stated that Stevens "get[s] [his penis] stuck in [her] heehaw" and that he wanted "it to go in [her] private." But, at trial, the victim denied seeing Stevens' penis and testified that only his tongue had touched her vagina.
Based on the child's trial testimony, Stevens argues that he was entitled to a judgment of acquittal on count three because the victim's trial testimony totally repudiated her prior recorded out-of-court statements to her mother, McBride, and Reeves. He argues that the child's out-of-court statements alone cannot support his conviction on count three.
The trial court admitted the victim's out-of-court statements to her mother, Reeves, and McBride under section 90.803(23) of the Florida Evidence Code. The statute provides a hearsay exception for the statement of a child victim of abuse and provides for the admission of such a statement as "evidence in any civil or criminal proceeding." See Burgess v. State, 324 So.3d 582, 587 (Fla. 1st DCA 2021). But "to be admissible, the source of the information through which the statement was reported must be trustworthy and the time, content, and circumstances of the statement must reflect that the statement is reliable." Id. When determining the reliability of a statement, the court may consider these factors:
[T]he statement's spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper
influence on the child by participants involved in a domestic dispute; and contradictions in the accusation.
State v. Townsend, 635 So.2d 949, 957-58 (Fla. 1994).
When a statement made by a child victim meets the reliability test under Townsend, the statement may be "considered as substantive evidence by the trier of fact." See Dep't of Health & Rehab. Servs. v. M.B., 701 So.2d 1155, 1160 (Fla. 1997). But if the child victim later repudiates her prior out-of-court statement, that statement "standing alone is insufficient to prove guilt beyond a reasonable doubt." Beber v. State, 887 So.2d 1248, 1252 (Fla. 2004) (quoting State v. Moore, 485 So.2d 1279, 1281 (Fla. 1986)); Baugh v. State, 961 So.2d 198 (Fla. 2007).
The State argues that the supreme court overruled Baugh and Beber when it rejected the special standard of review for judgments of acquittal in wholly circumstantial evidence cases. See Bush v. State, 295 So.3d 179, 200-01 (Fla. 2020) (holding that "in all cases where the sufficiency of evidence is analyzed," the appellate court must determine simply "whether the State presented competent, substantial evidence to support the verdict"). We need not address this argument because Baugh and Beber do not control the disposition in this appeal.
In Beber, the supreme court addressed the effect of a child victim's recantation of a prior out-of-court statement admitted under section 90.803(2). There, the State charged the defendant with capital sexual battery of a six-year-old boy, alleging that the defendant touched the child's penis with his mouth. The trial court admitted the child victim's out-of-court recorded interview, where he reported that the defendant had put the child's penis in his mouth on two different occasions. Id. at 1250. But the child later testified at trial that the defendant touched him only with his hand. Id. The child victim's prior out-of-court statement was the sole evidence to support the defendant's conviction. Id. at 1252. The supreme court held that "the child's hearsay statements, standing alone, [were] insufficient to sustain Berber's conviction of capital sexual battery." Id. at 1253.
The supreme court next addressed whether a recanted hearsay statement by a child victim could support a criminal conviction in Baugh. There, the State charged the defendant with capital sexual battery by forcing the child to perform oral sex on him. Id. at 201. The child informed her mother, the police, investigators, the state attorney, and the child protection team nurse about these allegations. Id. at 201. But, before trial, the child victim voluntarily recanted her statement. Id. She testified that the story was a "fib." Id. The State presented no physical or direct evidence of the abuse, but it produced evidence that the defendant harmed himself after the allegations were reported to the police and that the defendant told female visitors that they needed to get the child to recant her allegations. Id. The defendant moved for judgment of acquittal, arguing there was no direct evidence that the child had been abused. Id. The trial court denied the motion. Id. The Second District upheld the defendant's conviction because there was corroborating evidence of the defendant's guilt. Id. at 203.
The supreme court agreed with the Second District that "recanted statements can sustain a sexual battery conviction `when other proper corroborating evidence is admitted.'" Id. at 204 (quoting State v. Green, 667 So.2d 756, 761 (Fla. 1995)). It defined corroborating evidence as evidence that strengthens or confirms other evidence. Id. "Where the evidence creates only a strong suspicion of guilt or simply a probability of guilt, the evidence is insufficient to sustain a conviction." Id. at 205. Even so, the supreme court disagreed with the Second District on whether other evidence in that case corroborated the prior out-of-court statements by the child victim. It held that the other evidence did not corroborate those statements. Id.
This case is distinguishable from Baugh and Beber because the victim did not totally repudiate at trial her prior out-of-court statements that Stevens touched her vagina with his penis. And, even if she did, other evidence at trial sufficiently corroborated the victim's recanted out-of-court statements.
How does a trial court determine when a child victim has totally repudiated a prior out-of-court statement? This Court recently addressed the question in Godbolt v. State, 319 So.3d 773 (Fla. 1st DCA 2021). There, the State charged Godbolt with attempted capital sexual battery and two counts of lewd or lascivious molestation on a person under twelve years old by a person eighteen years or older. Id. at 774. As to the molestation charges, the State alleged that Godbolt touched the victim's butt with his penis (count two) and forced the victim to touch his penis with her hand (count three). Id.
At trial, the court admitted several out-of-court statements by the child victim, including statements the child made to her mother and to a member of the child protection team. Shortly after the abuse occurred, the mother testified that her daughter told her that Godbolt had inappropriately touched her and forced her to touch him. Id. The victim's interview by a member of child protection team was played for the jury. Id. During the interview, the victim accused Godbolt of touching her vagina over and under her clothes, penetrating her vagina with his finger, forcing her to touch his penis over his clothes, and touching her butt with his penis. Id. The last incident occurred when Godbolt pushed the child up against the cupboards in the kitchen and rubbed his penis against the child's butt. Id.
The child victim struggled to testify at trial. She testified consistently with her prior out-of-court statement that Godbolt touched her vagina over and under her clothes and that he made her touch his penis. But some of her trial testimony differed from her prior out-of-court statements. When the prosecutor asked the child if Godbolt had used his penis to touch her, she shook her head no. And she could not remember anything that had occurred in the kitchen, as she had earlier reported to the forensic interviewer. Even so, the victim affirmed that everything she told the forensic interviewer was true, and she stated that she remembered telling the interviewer about the incident in the kitchen. Id. at 775.
The jury convicted Godbolt of attempted sexual battery and two counts of lewd or lascivious molestation. Id. Godbolt appealed his lewd or lascivious molestation convictions. He argued that the child's prior out-of-court statements could not support his convictions because she totally repudiated those statements when she testified at trial, denying that Godbolt had touched her with his penis. Id. This Court disagreed, holding that "the victim did not completely repudiate or recant her prior out-of-court statements at trial, and the evidence showed that crimes were committed." Id. Unlike the victim in Baugh, the child did not testify that she made up the allegations. And the child reaffirmed the truth of the statements she made during the forensic interview. Id. at 776.
Here, there were some inconsistencies between the victim's trial testimony and her prior out-of-court statements to her mother and the child protection team. In her out-of-court statements, the victim confirmed that Stevens touched her vagina with his penis. But while testifying that Stevens bathed with her unclothed, the victim denied ever seeing his penis. She also testified that Stevens touched her vagina only with his tongue.
Despite this inconsistency, a jury could reasonably conclude, based on the limitations of the child victim's ability to recall events that occurred when she was only three years old, that she may not have remembered all the details of the abuse. The victim was five years old when she testified at trial. And she was being asked to testify about events that occurred when she was a toddler. Children do not retain details for a long time, which is why forensic interviews of children are recorded. See Townsend, 635 So. 2d at 960 (recognizing the difficulty of asking an eight-year-old about events that occurred when the child was two years old). Section 90.803(23) allows such preserved statements of a child victim of abuse to be admitted in a criminal prosecution:
A section 90.803(23) statement, for example, is based upon a legislative determination that this category of out-of-court statements is sufficiently reliable to support a conviction even when the declarant is unavailable at trial. The enactment of this narrow exception to the hearsay rule is grounded in the truism that this particular category of victims cannot always effectively communicate in a trial environment. They are also vulnerable to manipulation when, as is often the case, the defendant is a family member or friend. As a reliability safeguard, the victim's prior out-of-court statement can only be admitted as evidence after the trial judge makes specific findings of reliability based on evidence.
Clarke v. State, 260 So.3d 1134, 1138 (Fla. 5th DCA 2018) (Torpy, J., concurring and concurring specially).
The victim here was extremely distressed at trial and had trouble answering straightforward questions. The prosecutor asked the victim to explain what she told her mother about what Stevens did to her. The child did not respond verbally. When asked why she could not tell what happened, the victim responded that she was "just nervous." She was so nervous in fact that the trial court had to take a recess to allow the victim to compose herself.
But even after the break, the victim remained nervous and could not answer simple questions. Although she testified that Stevens licked her vagina and her butt with his tongue, the victim did not want to point where her butt was. She testified that she could not remember anything else happening. As in Godboldt, the victim's inability at trial to recall all of the sexual acts Stevens performed on her when she was three years old did not amount to a total repudiation of her prior out-of-court statements. Because of her young age at the time of the abuse, her lack of composure when testifying at trial, and her inability to answer simple questions posed to her at trial, we conclude the trial court did not err when it found that the victim did not totally repudiate her prior out-of-court statements when she testified at trial.
But even if the victim's trial testimony had totally repudiated her out-of-court statements that Stevens touched her vagina with his penis, the State presented competent, substantial evidence at trial that corroborated those statements, including physical evidence of sexual abuse. The child's mother testified that before the victim reported the abuse to her, the victim developed redness, irritation, and itching in her vaginal region. Standard remedies, such as oatmeal baths and diaper rash creams, failed to resolve the problem, which led the mother to suspect sexual abuse. When the victim finally revealed the abuse to her mother, she stated that her vagina was not itching, but it was bothering her. The nurse who examined the victim observed redness of the child's inner labia. The nurse testified that the redness could have been caused by the actions described the victim in her forensic interview, including Stevens touching the child's vagina with his penis.
Moreover, the victim's mother and Stevens both testified in a manner that suggested that the then-three-year-old child's knowledge concerning a union between a man's penis and a child's vagina came from Stevens' abuse of the child. The mother and Stevens testified that the victim had never been exposed to sexually explicit materials that would have given her knowledge of the acts she described to her mother and the child protection team. The mother and Stevens also testified that Stevens was the only male who had been left alone with the victim. This testimony provides more corroboration of the child victim's out-of-court statements that Stevens touched her vagina with his penis. Thus, the State presented corroborating evidence of the sexual abuse charged in count three.
Conclusion
Because the child victim did not totally repudiate her prior out-of-court statements at trial and because there was competent, substantial evidence to corroborate those statements, the trial court did not err when it denied the motion for judgment of acquittal on count three. Stevens' judgment and sentence are AFFIRMED.
B.L. Thomas and Long, JJ., concur.