Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2210 _____________________________ AVERY LAMONT GOSS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Jeffrey Burns, Judge. July 13, 2020 PER CURIAM. In this direct criminal appeal, Appellant makes several claims of reversible error. We affirm in all respects and write only to address his claim that the trial court abused its discretion by denying his motion to sever his trial from that of his codefendant. We reject Appellant’s assertion that separate trials were required in order to avoid a Confrontation Clause violation. I. Appellant and his codefendant were charged with numerous felonies, including burglary, robbery, kidnapping, and carjacking, that involved two victims, a man and a woman who were engaged and later married. Appellant, but not his codefendant, also was charged with committing a sexual battery on the female victim. Prior to trial, Appellant moved to sever his trial from that of his codefendant. As grounds for the motion, Appellant claimed that his codefendant allegedly made an out-of-court statement implicating Appellant that the State intended to use at trial against Appellant in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. Specifically, the female victim would testify that the codefendant told Appellant to stop his sexual assault by stating, “No, man, don’t do it to her, man, don’t do it to her.” The State opposed the motion by arguing that there was no Confrontation Clause issue “because of the circumstances of the comment and the Defendant’s response to it and his acquiescence to it . . . ma[de] it an adoptive admission.” The trial court denied the motion. At trial, the female victim testified that she drove her car at gunpoint to a park where she was told that she “needed to pay.” Since she had no money, Appellant told her that she “could pay in other ways.” She was forced into the backseat and told “to turn around on all fours.” While the codefendant remained in the front seat, Appellant stepped outside, grabbed something, got back in the car, and closed the door. While she was crying and begging to go home, she was forced to remove her pants, and a sharp object was shoved in “her behind.” Appellant was “snickering” while he rubbed the object back and forth inside her. The codefendant was laughing. Appellant stopped rubbing the sharp object back and forth after the codefendant said, “Don’t do that to her, man. Don’t do it to her. She’s innocent.” Appellant did not respond to the codefendant, but warned her that he knew a group of people that would “f*ck” and “kill” her. Appellant then ordered her to get back in the driver seat and drive. The victim acknowledged that she did not disclose the sexual assault when she went to the hospital or when she first talked to law enforcement. The jury returned a verdict finding Appellant guilty of sexual battery, burglary, robbery, kidnapping, and carjacking. The trial court sentenced Appellant to concurrent terms totaling forty years in prison. This appeal followed. 2 II. “Florida Rule of Criminal Procedure 3.152(b)(1)(A) directs that severance between defendants before trial shall be granted upon a showing that the order is necessary to protect a defendant’s right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of one or more defendants.” Hunter v. State, 8 So. 3d 1052, 1068 (Fla. 2008). “Pursuant to subpart (b)(2) of the rule, upon a defense motion, the court must determine if the State intends to introduce evidence of a statement that makes reference to another defendant that is not admissible as to the moving defendant.” Id. If so, the rule “requires the State to elect one of three courses: (1) a joint trial at which evidence of the statement is not admitted; (2) a joint trial at which evidence of the statement is admitted after all references to the moving defendant have been deleted, provided the court determines that admission of the evidence with deletions will not prejudice the moving defendant; or (3) severance of the trial.” Id. (quoting Smith v. State, 699 So. 2d 629, 643 (Fla. 1997)). The trial court’s denial of a motion to sever defendants in a joint trial is reviewed for an abuse of discretion. Farina v. State, 801 So. 2d 44, 52 (Fla. 2001); Heinly v. State, 201 So. 3d 769, 774 (Fla. 4th DCA 2016); Jeffries v. State, 776 So. 2d 335, 336 (Fla. 1st DCA 2001). In this case, Appellant claims that the trial court abused its discretion by denying his motion to sever his trial from that of his codefendant where the state introduced his codefendant’s incriminating out-of-court statement against him in violation of the Confrontation Clause. Specifically, the female victim was allowed to testify that the codefendant told Appellant to stop his sexual assault. However, a defendant’s right to cross-examination is not violated by the introduction of a codefendant’s out-of-court statement if the statement falls within any hearsay exception that renders the statement admissible against the defendant. Brown v. State, 648 So. 2d 268, 271 (Fla. 4th DCA 1995). Here, the trial court properly found that there was no violation of the Confrontation 3 Clause because the codefendant’s statement was admissible as an admission by acquiescence or silence insofar as the statement was made in Appellant’s presence and elicited no denial or protest from Appellant. See Twilegar v. State, 42 So. 3d 177, 197–98 (Fla. 2010); Globe v. State, 877 So. 2d 663, 672–73 (Fla. 2004); Nelson v. State, 748 So. 2d 237, 242–43 (Fla. 1999). Moreover, the Confrontation Clause only applies to “testimonial statements” that are made with the expectation of being used in an investigation or prosecution of a crime. Crawford v. Washington, 541 U.S. 36, 51–52 (2004); Franklin v. State, 965 So. 2d 79, 90–91 (Fla. 2007); Howard v. State, 254 So. 3d 1188, 1190 (Fla. 1st DCA 2018). The codefendant’s statement to Appellant during the commission of the sexual assault was not testimonial in nature. See Howard, 254 So. 3d at 1190–91 (holding that codefendant’s confessional statements made privately to friends from his neighborhood who were also in jail were not testimonial statements under the Confrontation Clause). Because admission of the statement did not violate the Confrontation Clause, the trial court did not abuse its discretion in denying Appellant’s motion for severance. Id.; Brown, 648 So. 2d at 271. AFFIRMED. OSTERHAUS, KELSEY, and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ David J. Joffe of Joffe Law, P.A., Fort Lauderdale, for Appellant. Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 4