FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Reinaldo Ojeda,
L. Dimmig, II, Public Defender, and Joseph N. D'Achille,
Jr., Special Assistant Public Defender, Bartow, for
Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch,
Assistant Attorney General, Tampa, for Appellee.
Hyre challenges his conviction and sentence for unlawful
sexual activity. He was sentenced to the statutory maximum of
fifteen years in prison. Hyre asserts that the trial court erred
in ruling that the child hearsay statements of the alleged
victim were admissible at trial. Because the trial court
failed to conduct the required factual analysis and the
resultant error in admitting the hearsay statements was not
harmless, we reverse Hyre's judgment and sentence and
remand for further proceedings.
was charged with one count of unlawful sexual activity.
See § 794.05(1), Fla. Stat. (2014). The
information alleged that Hyre engaged in sexual activity with
A.M., the alleged victim, "a person of 16 or 17 years of
age, by the sexual organ of [Hyre] penetrating the
vagina" of A.M. The State filed its notice of intent to
introduce child hearsay statements, identifying the hearsay
statements as A.M.'s statements to her mother and her
recorded interview with a detective. See §
90.803(23), Fla. Stat. (2015).
evidentiary hearing was held, following which the court
entered an order finding that the hearsay statements would be
admissible at trial. Hyre argues that the trial court order
fails to address crucial evidence and that the findings are
conclusory, merely parroting the State's child hearsay
notice; he also contends that the trial court abused its
discretion in determining that the sources of information
were trustworthy and that the content of the hearsay
statements demonstrated indicia of reliability.
A.M.'s statements to her mother
mother testified at the hearing. She explained that on the
date of the alleged crime she, her two children, and her
ex-husband were visiting extended family while on vacation in
Florida. At least nine people were in the house that day.
A.M.'s mother testified that A.M. went upstairs to lie
down with her grandmother. A few hours later A.M. came
downstairs and told her mother that she wanted to leave. The
mother testified that she believed her daughter was bored and
told her that they would not be leaving yet. Approximately
thirty to forty-five minutes later, A.M. again told her
mother that she wanted to leave and the mother again told her
that they would not be leaving yet. The third time A.M. came
to her mother, A.M. said she needed to talk with her mother.
The two went outside, and according to the mother, A.M. told
her that "[Hyre], he touched me-touched me on my vagina
and my breasts." When the mother asked A.M. what she
meant, A.M. responded, "I don't think I'm a
virgin anymore." At that point, the mother asked
A.M.'s father to come outside and A.M. "talked to
her dad." A.M. was then taken to the hospital. The
mother testified that prior to this she had a good
relationship with Hyre, as did Hyre and A.M.'s father.
cross-examination, the mother testified that she did not
remember what she told police officers that A.M. had said.
She could not recall whether she used the word
"penetration" in telling the police what had
occurred, and her statement was otherwise different than the
statement provided in the State's notice of intent to
offer child hearsay evidence. A.M.'s mother also
testified regarding her relationship with her ex-husband and
family, reiterating that there was "no bad blood"
despite the divorce.
Smith, who had been at the home the night the alleged
unlawful sexual activity occurred, testified as a defense
witness. Ms. Smith stated that she asked A.M.'s
father not to bring his ex-wife, A.M.'s mother, to the
house. She testified that A.M.'s mother asked where the
nearest hospital was almost immediately upon arrival at the
house. A.M.'s mother told Ms. Smith that she always wants
to know where the nearest hospital is when she is in a new
place. Ms. Smith also testified that A.M.'s mother was
"ranting and talking" about how her divorce was
A.M.'s father's fault and that the mother was angry
and upset. She said that A.M. was present during the time
A.M.'s mother was talking about her relationship with
A.M.'s father. Ms. Smith further testified that A.M's
mother was angry with Hyre and verbally "attacked him
during that session."
cross-examination, Ms. Smith was asked additional questions
about why A.M.'s mother asked about the nearest hospital.
She also was asked about A.M. "whispering" to her
mother and the two leaving the house. Ms. Smith testified
that A.M. and her mother "stayed out there for maybe an
hour or hour and a half." She then testified that
A.M.'s mother told her that Hyre had touched A.M.'s
vagina. There was no indication that anyone confronted Hyre.
A.M.'s recorded statement
officer who interviewed A.M. and took her statement also
testified at the hearing. He stated that at the time in
question he had been a detective with the special victims
unit. At the time of his testimony, he was a sergeant. The
sergeant testified that prior to the interview with A.M. he
had not conducted a forensic interview. The sergeant spoke
with A.M. after she had been examined by medical staff, and
he recorded their conversation. He testified that he
established that A.M. knew the difference between a lie and
the truth and that ...