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Roberts v. State

Florida Court of Appeals, Third District

May 16, 2018

James Roberts, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 12-6207 Jorge Rodriguez-Chomat, Judge.

          Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.

          Before EMAS, LOGUE, and LINDSEY, JJ.

          LOGUE, J.

         On Appellant's Motion for Issuance of a Written Opinion

         We grant Appellant's motion for issuance of written opinion, withdraw our prior per curiam affirmance, and substitute this opinion in its stead.

         James Roberts appeals his judgment and life sentence as a prison releasee reoffender after a jury found him guilty of three counts of lewd or lascivious molestation of a child under twelve years of age and two counts of misdemeanor battery. On appeal he argues that the trial court erred by admitting several child-hearsay statements under section 90.803(23), Florida Statutes (2014). We affirm for two reasons. First, Roberts failed to preserve the issues he raises on appeal. Second, even if the issues were preserved, we conclude that the child-hearsay statements were properly admitted.

         Background

         On a spring afternoon in March 2012, James Roberts was at a residential community clubhouse in Homestead. Based on his behavior in the swimming pools there, Roberts was charged with three counts of lewd or lascivious molestation on a child under twelve years of age and two counts of battery.

         Before trial, the State filed a notice of intent to introduce the hearsay statements of the child victims. The trial court held an evidentiary hearing on the matter, during which it heard the testimony of four witnesses to whom the child-victims made statements-the officer who responded to the scene and three parents who were present at the scene. The trial court also reviewed a videotape of forensic interviews conducted with each child. It concluded that the child-hearsay statements were sufficiently reliable and therefore admissible under section 90.803(23).

         At trial, the jury heard testimony from five children who were touched by Roberts as they played that day in the swimming pools. Three of the children testified that they were touched on their bottoms. The jury also heard the child-hearsay statements made to parents and law enforcement regarding the incident. Roberts was found guilty on all counts and sentenced to life as a prison releasee reoffender. This appeal followed.

         Analysis

         Roberts raises two issues on appeal concerning the trial court's admission of the child-hearsay statements. He argues that the trial court made insufficient, "boilerplate" findings of reliability under section 90.803(23) and that the trial court improperly relied on corroborating evidence in concluding that the statements were sufficiently reliable.

         We first note these two issues were not preserved for this court's review. "[A] defendant must object to the sufficiency of the trial court's findings regarding the admissibility of child-hearsay statements in order to raise the legal error on appeal." Elwell v. State, 954 So.2d 104, 106 (Fla. 2d DCA 2007). The Florida Supreme Court has reiterated that no party "should be able to argue for reversal on appeal on grounds that the trial court failed to make a critical factual finding on the record without first objecting on that basis-and giving the trial court an opportunity to correct any error at that time." Spencer v. State, 43 Fla.L.Weekly S34 (Fla. Jan. 25, 2018) (Lawson, J. concurring) (citing Elwell with approval). Similarly, to challenge the trial court's reliance on corroborating evidence in determining the reliability of child hearsay statements, a timely, specific objection must be made below. See, e.g., Seaman v. State, 608 So.2d 71, 73 (Fla. 3d DCA 1992) (concluding that the argument was not preserved for this court's review because "[w]e can find no specific objection by defendant to the use of corroborating evidence as a factor in finding the child hearsay statements to be reliable"); Granados v. State, 199 So.3d 384, 387 (Fla. 4th DCA 2016) (concluding the defendant failed to preserve the argument that the trial court impermissibly relied on corroborating testimony when it admitted the child-hearsay statements).

         At the hearing on the admissibility of the child-hearsay statements, defense counsel suggested that the hearsay statements were not reliable because the children were influenced before making their statements. Defense counsel highlighted the facts that the officer described "a chaotic scene when he initially arrived"; that "these are children that knew each other"; and that the officer was "probably not assured that these children did not discuss this amongst themselves and the parents." Nevertheless, the trial court ruled the hearsay statements admissible, and the following exchange ensued:

Defense counsel: For the record, the defense respectfully disagrees for the record, ...

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