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State v. Boatman

Florida Court of Appeals, First District

July 9, 2019

State of Florida, Petitioner,
v.
Dwayne Boatman, Respondent.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          Petition for Writ of Certiorari-Original Jurisdiction.

          Ashley Moody, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Petitioner.

          Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Respondent.

          Rowe, J.

         The State seeks a writ of certiorari to quash an order prohibiting the use of hearsay statements by the child victim in the prosecution of Dwayne Boatman for capital sexual battery and lewd or lascivious molestation. In determining that the child's statements were too unreliable to be admitted into evidence, the trial court made findings and reached legal conclusions based on facts not presented at the evidentiary hearing and unsupported by the record. This was a departure from the essential requirements of law and caused irreparable harm.

         Facts

         Boatman's nine-year-old stepdaughter, K.S., reported to officials at her elementary school that Boatman "had sex" with her. She also stated that Boatman "raped" her the very morning she made the report. K.S. was referred to a child protection team, who then performed a recorded forensic interview. During the interview, K.S. repeated that Boatman "raped" her. When asked what she meant by that term, K.S. said that it meant that he "had sex with her" and explained that Boatman had penetrated her anus with his penis.

         A sexual assault examination was conducted the same day. A nurse practitioner swabbed K.S.'s anal area to test for DNA. The test results revealed that the DNA retrieved from the anal swabs matched Boatman's DNA. Based on the evidence obtained from the forensic interview and the sexual assault examination, the State charged Boatman with sexual battery and lewd and lascivious molestation.

         Before the State could go to trial, K.S. recanted. In a four-minute deposition taken by Boatman's attorney two years after the alleged rape and K.S.'s reports to school officials, K.S. denied that Boatman raped her. When asked by defense counsel if she knew what the term "rape" meant, K.S. responded, "I know what it means now, but I didn't know what it means then." She refused to explain her current understanding of the word. When asked if Boatman had ever put his private part to her private part, K.S. responded, "No. Not that I'm referring of, no." K.S. stated that she loved Boatman more than her real father and that Boatman would not be in prison were it not for her earlier statements. The State asked K.S. on cross-examination whether she would do anything to protect her family. K.S. responded affirmatively, "I don't care how I do it, shoot to kill." No further questions were asked, and the deposition concluded.

         After the deposition, the State moved under section 90.803(23), Florida Statutes (2018), to introduce the child hearsay statements K.S. made in her recorded CPT interview and the hearsay statements she made to the two school officials, the nurse who performed the sexual assault examination, and the CPT member who conducted the interview. The court conducted an evidentiary hearing and after considering testimony and information obtained during discovery, determined that K.S.'s statements were unreliable. Included in the order were findings regarding DNA evidence:

The evidence provided by the State in the course of discovery indicates that the DNA from the swabs taken from K.S.'s anal and vaginal areas matched the Defendant's DNA. One reasonable hypothesis of innocence to explain the presence of such DNA may be that the Defendant and his wife had sexual intercourse; the wife (K.S.'s mother); the wife used the "community" dirty, green rag to "wipe up" after this marital activity; and K.S. used this same dirty, green rag to "wipe up" to retaliate against her stepfather for not giving her the attention she sought.

         The court also found that K.S.'s conduct may "fall under the description of a child with feminine Oedipal complex (Electra complex)." The court excluded the hearsay statements based on its ...


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