final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 12-6207 Jorge Rodriguez-Chomat, Judge.
J. Martinez, Public Defender, and Jonathan Greenberg,
Assistant Public Defender, for appellant.
Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.
EMAS, LOGUE, and LINDSEY, JJ.
Appellant's Motion for Issuance of a Written Opinion
grant Appellant's motion for issuance of written opinion,
withdraw our prior per curiam affirmance, and substitute this
opinion in its stead.
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.
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.
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).
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
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.
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
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, ...