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Hyre v. State

Florida Court of Appeals, Second District

January 19, 2018

ANDREW HYRE, Appellant,


         Appeal from the Circuit Court for Polk County; Reinaldo Ojeda, Judge.

          Howard L. Dimmig, II, Public Defender, and Joseph N. D'Achille, Jr., Special Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.

          BLACK, Judge.

         Andrew Hyre challenges his conviction and sentence for unlawful sexual activity. He was sentenced to the statutory maximum of fifteen years in prison.[1] 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.

         Hyre 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).[2]

         An 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.

         I. The hearsay statements

         A. A.M.'s statements to her mother

         A.M.'s 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.

         On 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.

         Jane Smith, who had been at the home the night the alleged unlawful sexual activity occurred, testified as a defense witness.[3] 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."

         On 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.

         B. A.M.'s recorded statement

         The 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 ...

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