final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara A. McCarthy, Judge; L.T. Case No.
Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
challenges his conviction and sentence for four counts of
sexual battery and two counts of lewd or lascivious
molestation of a minor by a person under the age of eighteen.
He raises four main issues as to his conviction, and we
affirm as to all, addressing three, as well as his sentence.
First, he claims that the court abused its discretion in
refusing to allow his mother to sit through the pretrial
suppression hearing and trial after the state invoked the
rule of sequestration, because the state had listed the
mother in discovery as a "Class C" witness who was
not expected to be called. We conclude that the court did not abuse
its discretion, given the State's representation that the
mother could be called as a rebuttal witness and the fact
that this was a familial crime. Second, appellant contends
that the court erred in denying a motion to suppress his
statements to a detective, which were given without the
warnings required of Miranda v. Arizona, 384 U.S.
436 (1966). The court did not err, however, in finding that
appellant was not in custody and thus Miranda
warnings were not compelled. Finally, we reject his claim
that he was convicted of a nonexistent crime, as contact
between the tongue and a sexual organ constitutes sexual
battery. We also affirm appellant's sentence based upon
Davis v. State, 199 So.3d 546 (Fla. 4th DCA 2016).
who was sixteen or seventeen at the time of the incidents,
was charged with sexual battery and lewd or lascivious
molestation for abuse of his cousin, who was five or six
years old at the time of the incidents, which occurred at the
victim's home as well as the home of another relative.
The sexual battery incidents involved appellant placing his
mouth over the victim's penis and having the victim do
the same to appellant. The lewd and lascivious counts were
incidents where appellant touched the victim's penis both
above and beneath his clothes. In two statements to
investigators appellant admitted the incidents, although he
sought to suppress the more incriminating statement. The
victim also made a statement, through a therapist, confirming
the abuse. Appellant was convicted after trial of all counts
and ultimately sentenced to 31.125 years in prison, the
lowest permissible sentence for the charges. He appeals his
convictions on various grounds.
first issue, appellant claims that the court erred in
excluding his mother from the courtroom. At the suppression
hearing, and again at trial, appellant sought to have his
mother remain in the courtroom. The prosecutor objected on
the ground that the State might call the mother as a witness
and invoked the rule of sequestration. Noting that in the discovery request the
mother was listed as a Class C witness, the defense objected
to the mother's exclusion. Pursuant to rule 3.220(b),
Florida Rules of Criminal Procedure, "Class C"
witnesses are witnesses who perform ministerial functions or
whom the prosecutor does not intend to call at trial, or
whose knowledge is fully set out in a police report. Because
the mother was neither a witness who performed ministerial
functions nor whose knowledge was set out in a police report,
the defense argued that the mother was a "witness"
that the State did not intend to call at trial; therefore,
sequestration should not apply to the mother. Nevertheless,
the trial court excluded the mother from the hearing as well
as from the trial.
"The rule in Florida and elsewhere is that the trial
judge is endowed with a sound judicial discretion to decide
whether particular prospective witnesses should be excluded
from the so-called sequestration of witnesses rule."
Spencer v. State, 133 So.2d 729, 731 (Fla. 1961).
When a party requests that witnesses be excluded from trial
under the sequestration rule, then generally, the trial court
will exclude all prospective witnesses from the courtroom, in
order to avoid the witnesses' testimony being colored by
what he or she hears from other testifying witnesses.
Id.; Goodman v. W. Coast Brace & Limb, Inc., 580
So.2d 193, 194 (Fla. 2d DCA 1991). Where the trial court
exercises its discretion in excluding a witness or allowing a
witness to remain in the courtroom, it is the complaining
party's burden to show an abuse of discretion which
caused injury. Spencer, 133 So.3d at 731.
cannot say that under the rule the trial court abused its
discretion in excluding appellant's mother. The
prosecutor maintained that he might call the mother on
rebuttal, depending upon whether the appellant testified and
what he said. While the mother had no direct knowledge of the
incidents, she was the sister of the victim's mother. The
victim's mother had called appellant's mother when
she discovered that her son was abused by appellant. Shortly
after that call, appellant texted his aunt, expressing regret
for the incidents. Thus, at the very least, the mother must
have confronted her son about her sister's accusations.
And what he said to her could have been very relevant to the
prosecution. Because of the familial relationships involved,
the trial court was within its discretion in determining that
appellant's mother should be excluded from the courtroom
so that her testimony, if necessary, would not be affected by
what she might hear from other testifying witnesses,
including her sister and the appellant, if he testified.
second claim of error, appellant argues that the court erred
in denying his motion to suppress his confession to a
detective. Appellant made two statements to police. The first
was to a Pembroke Pines detective and the second to a Coral
Springs detective. Appellant filed a motion to suppress
statements he made to the Coral Springs detective on grounds
that, although he wasn't under arrest, this was a
custodial interrogation and he was not read his
Miranda rights. The trial court held a hearing and
concluded that the defendant was not in custody and thus, the
statement was voluntary. The appellate court defers to the
trial court's findings regarding the facts and uses the
de novo standard of review for legal conclusions. Nshaka
v. State, 82 So.3d 174, 178-79 (Fla. 4th DCA 2012).
warnings apply only to in-custody interrogations. Ross v.
State, 45 So.3d 403, 414 (Fla. 2010). In Ramirez v.
State, 739 So.2d 568 (Fla. 1999), the Florida Supreme
Court explained that determining whether a suspect is in
custody for purposes of giving Miranda warnings is a
mixed question of law and fact. It set forth a four factor
test to determine whether a person is in custody:
(1) the manner in which police summon the suspect for
questioning; (2) the purpose, place, and manner of the
interrogation; (3) the extent to which the suspect is
confronted with evidence of his or her guilt; (4) whether the
suspect is informed ...