Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-170 _____________________________ SYLVESTER JEROME BURGESS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. Phillip A. Pena, Judge. July 16, 2021 B.L. THOMAS, J. Appellant was convicted of sexual battery of a child under twelve by a person eighteen or older, and he was sentenced to life in prison. On appeal, he argues the trial court erred in admitting collateral-crime evidence and child-hearsay statements. We affirm. Facts The State filed a notice of intent to offer the victim’s child- hearsay evidence at trial, and the trial court held a hearing. At the child-hearsay hearing, the victim testified that she knew the difference between a truth and a lie and acknowledged that she was supposed to tell the truth. She testified that when she was in the fourth grade, there were a few incidents that happened between her and Appellant either in the kitchen or her bedroom. She testified that in her bedroom, Appellant put his fingers on and in her vagina, licked her vagina, told her to put his penis in her mouth, and tried to put his penis inside her vagina. The victim also testified that on another occasion, Appellant put his fingers inside her vagina in the kitchen. The victim testified that Appellant threatened to “spank” her if she told anyone about the incidents. At the child-hearsay hearing, Sergeant Phillips testified that the victim told him Appellant inappropriately touched her several times. The victim told him that she woke up with Appellant on top of her, kissing her, and touching her. Sergeant Phillips asked the victim whether Appellant touched her outside or inside of her clothes. He also asked her whether Appellant touched her vagina with his hands, his mouth, or his penis, and if he penetrated her. The victim replied that Appellant kissed her and then penetrated her vagina with his fingers and his penis. The victim also stated that she was afraid to go home because she did not want to be around Appellant. Sergeant Phillips testified that he never suggested to the victim that she had been sexually abused by Appellant. After the child-hearsay hearing, the trial court entered a written order allowing the victim’s hearsay statements to Sergeant Phillips. The State also filed a notice of intent to offer evidence of other crimes, wrongs, or acts, alleging that Appellant committed other acts that were relevant and similar to the act charged in the present case. The trial court held a hearing on the collateral-crime evidence where multiple witnesses testified. L.R., the collateral- crime victim, recounted staying with one of her mother’s friends in 2006. While she was there, Appellant told her to come to the bedroom where he touched her vagina with his hands. Appellant also touched her with his penis and put it inside her vagina. She stated that she knew what a condom was, but Appellant did not use one. L.R. told Appellant to stop while they were engaging in sexual intercourse. After the incident, she went to the hospital. She was about twenty years old at the time, but suffered from a mental disability. 2 A witness staying with L.R. testified that their caretaker went to the store and left L.R. and Appellant alone. The witness testified that he went to the bathroom, and when he came back, L.R. was crying. The witness told the caretaker that L.R. was crying, and the caretaker called the police. L.R.’s mother testified that in 2006, she left her daughter with her neighbor. The neighbor later called and told her that Appellant had touched L.R. During the phone call, she could hear L.R. in the background “hollering and crying.” L.R.’s mother met her daughter at the hospital, and L.R. told her mother that Appellant had touched her. L.R.’s mother testified that L.R. suffers from an unknown mental disability. A DNA analyst with the Florida Department of Law Enforcement (FDLE) developed a foreign DNA profile from L.R.’s underwear. After comparing the foreign DNA from L.R.’s underwear with a buccal swab collected from Appellant, the analyst determined that there was “no discrepancy between the two” samples. The trial court entered a written order granting the State’s request to introduce the collateral-crime evidence. Following the pretrial hearings and orders, the case went to trial. During trial, both Sergeant Phillips and the victim recounted their testimony given during the child-hearsay hearing. The victim again testified that Appellant touched her vagina with his hands and his mouth and attempted to penetrate her vagina with his penis. The State also introduced the victim’s forensic interview, and it was played for the jury. The victim’s forensic interview was consistent with the victim’s testimony at trial and her testimony at the child-hearsay hearing. During the interview, the victim also stated that Appellant “did not use protection” because “there were no wrappers around.” An FDLE analyst testified that a complete Y-STR profile was found on the victim’s vaginal swabs, and Appellant or someone from Appellant’s male lineage were possible sources of the DNA. The remainder of the State’s case focused on the collateral- crime evidence. Before the State presented the evidence, the trial 3 court read a cautionary instruction to the jury stating that the evidence concerning other crimes, wrongs, or acts allegedly committed by Appellant was to be considered only for the purpose of corroborating the testimony of the victim. L.R., the collateral-crime victim, recounted the testimony she gave at the collateral-crime hearing. The DNA analyst from the collateral-crime hearing also testified. He stated that the foreign DNA found in L.R.’s underwear matched Appellant’s DNA and was 1.4 billion times more likely to be from Appellant than someone else. Following the collateral-crime witnesses, Appellant testified on his own behalf. He testified that he stayed with the victim and her family for four days after Christmas. Appellant testified that he saw the victim the morning of January 2, 2018, when she was getting ready for school. He testified she was fully dressed and going to the kitchen. Appellant denied the victim’s allegations of sexual misconduct. Regarding the collateral-crime evidence, Appellant testified that he knew L.R. in 2006 and had sex with her. After his girlfriend at the time went to the store, he entered L.R.’s room to see if she was hungry. He testified that L.R.’s foot touched his penis, and she invited him to have sex with her in his girlfriend’s bed, which they did. Appellant stated he had no reason to believe that L.R. was less than twenty years old or had a mental disability. Eventually, L.R. told Appellant’s girlfriend that the two of them had sex. Appellant was upset and left. He was later arrested, but the case was dismissed. Appellant stated that because L.R. never told him to stop, he believed the act was consensual. Appellant was found guilty of sexual battery on a child under twelve by a person eighteen or older with the special findings of sexual penetration and sexual contact and sentenced to life in prison. Appellant was also designated a sexual predator. Child-Hearsay Statements Appellant challenges the reliability of the victim’s statements to Sergeant Phillips where she initially disclosed the sexual abuse. We review a trial court’s finding that a child victim’s hearsay 4 statements are reliable and come from a trustworthy source for an abuse of discretion. Small v. State, 179 So. 3d 421, 424 (Fla. 1st DCA 2015). Section 90.803(23) of the Florida Evidence Code provides a hearsay exception for the statements of a child victim. For a hearsay statement to be admissible, the source of the information through which the statement was reported must be trustworthy and the time, content, and circumstances of the statement must reflect that the statement is reliable. State v. Townsend, 635 So. 2d 949, 954 (Fla. 1994). Factors that a trial court may consider when determining whether a statement is reliable include: [T]he statement’s spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation. Id. at 957–58. “A trial court must make specific findings of fact on the record as to the basis of its ruling.” Cabrera v. State, 206 So. 3d 768, 772 (Fla. 1st DCA 2016); G.H. v. State, 896 So. 2d 833, 835 (Fla. 1st DCA 2005) (“Conclusory assertions of reliability, or boilerplate recitations of the statutory language are insufficient.”). Here, the trial court found: (1) the statements were general in nature; (2) the victim’s uncomfortable demeanor was logical given the nature of the disclosure and the surprise of the inquiry; (3) the disclosure occurred only hours after the incident; (4) this was the first information provided to someone who asked about the incident; (5) there was no indication that the victim had any ill will toward Appellant or a motive to fabricate the disclosure; (6) given 5 the close proximity to the incident the victim was likely under the emotional effects of the incident; (7) the language used by the victim was appropriate for the circumstances she was describing and her age; and (8) no evidence suggested that the victim was improperly influenced to make the disclosure. The trial court provided specific findings of fact as to the statement’s reliability based on the Townsend factors. See Cabrera, 206 So. 3d at 772; Townsend, 635 So. 2d at 957–58. The trial court’s findings of reliability are supported by the record. Any inconsistencies in the victim’s demeanor or reactions were adequately explained by the trial court. Therefore, the trial court did not abuse its discretion by determining that the victim’s child-hearsay statements were sufficiently reliable and admissible. See Small, 179 So. 3d at 424. Collateral-Crime Evidence Appellant argues the trial court erred by allowing the collateral-crime evidence because it was not proven by clear and convincing evidence, it was not relevant, and it was more prejudicial than probative under section 90.403, Florida Statutes (2018). “A trial court’s decision to admit collateral act evidence is reviewed for an abuse of discretion.” Goggins v. State, 211 So. 3d 1100, 1103 (Fla. 1st DCA 2007). “The trial court serves as a gatekeeper for the admission for the collateral crime evidence and must determine, among other factors, whether ‘the prior acts were proved by clear and convincing evidence.’” Hetherington v. State, 293 So. 3d 624, 625 (Fla. 1st DCA 2020) (quoting Kopsho v. State, 84 So. 3d 204, 212 (Fla. 2012) (citations omitted)). Clear and convincing evidence “must be credible; the memories of witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” Edwards v. State, 257 So. 3d 586, 588 (Fla. 1st DCA 2018) (quoting N.L. v. Dep’t of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003)). Under section 794.011(5)(b), Florida Statutes (2018), it is a second-degree felony for a person eighteen years of age or older to commit sexual battery on a person eighteen years of age or older, 6 without that person’s consent. The State proved that Appellant committed such an act on L.R. with the following evidence. L.R. testified at the collateral-crime hearing that Appellant touched her vagina with both his hands and his penis without her consent. She testified that she did not want to have sex with Appellant, and she told him to stop. Additionally, one witness remembered L.R. crying after being left alone with Appellant and L.R.’s mother recalled L.R. being upset at the hospital when she told her that Appellant had touched her. A foreign DNA profile from L.R.’s underwear was more than 1.4 billion times more likely to be from Appellant than anyone else and contained no discrepancy with Appellant’s DNA. Thus, the State proved by clear and convincing evidence that the collateral crime occurred. See Edwards, 257 So. 3d at 588. “In a criminal case in which the defendant is charged with a sexual offense, evidence of a defendant’s commission of other crimes, wrongs, or acts involving a sexual offense is admissible and may be considered for its bearing on any matter to which it is relevant.” § 90.404(2)(c)1, Fla. Evid. Code (emphasis added). Collateral-crime evidence may be introduced to corroborate the victim’s testimony by showing that the defendant has a propensity for committing “sexual offenses” as defined in section 90.404(2)(c)2. Pitts v. State, 263 So. 3d 834, 839 (Fla. 1st DCA 2019) (citing Whisby v. State, 262 So. 3d 228 (Fla. 1st DCA 2018)). Propensity evidence is relevant as evidence of corroboration, especially in child sexual abuse cases where the child victim is typically the sole witness, corroborative evidence is scant, and identity is not at issue. See McLean v. State, 934 So. 2d 1248, 1256–57 (Fla. 2006). Here, the State introduced the evidence to show propensity and to corroborate the victim’s allegations. The victim was ten years old at the time of the incident and was the sole witness of the crime. Additionally, the State relied heavily on the victim’s testimony and the consistency of her account as corroborative evidence. Thus, the collateral-crime evidence was relevant to show propensity and corroborate the victim’s allegations. See id. Finally, collateral-crime evidence is inadmissible if it is more prejudicial than probative. Propensity evidence is admissible if its 7 probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence. § 90.403, Fla. Evid. Code; Whisby, 262 So. 3d at 232. In assessing whether the probative value of evidence of a previous sexual offense is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) [T]he similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. McLean, 934 So. 2d at 1262. Here, the trial court listed, and the record supports, at least seven similarities between the prior act and the act charged, including: (1) Appellant used both his hands and his penis when he touched and penetrated both victims; (2) both victims told Appellant to stop; (3) Appellant did not wear a condom in either incident; (4) both incidents took place in a residence belonging to a woman with whom Appellant was in a relationship; (5) Appellant took advantage of the absence of other adults; and (6) Appellant exploited the immaturity of both victims. Furthermore, cases applying the McLean framework to child molestation cases have focused on the similarity between means of access while requiring less commonality between the charged offense and the collateral crime. Pridemore v. State, 301 So. 3d 454, 460 (Fla. 4th DCA 2020) (upholding admission of collateral-crime evidence where the means of access between the collateral crime and present crime were identical in that defendant dated single mothers with young daughters and exploited his “familial” relationship to find time alone with the girls and assault them in their mothers’ respective bedrooms); see also Donton v. State, 1 So. 3d 1092, 1098 (Fla. 1st DCA 2009) (upholding admission of collateral-crime evidence where the prior act and the charged act were similar in that Appellant acted with “an authoritative familiarity” over both victims, even though the victims were 8 different ages and sexes and the assaults occurred in different places). In this case, the acts are similar in their means of access. In the collateral crime, Appellant used his relationship with L.R.’s caretaker to take advantage of L.R.’s vulnerability. Appellant also took advantage of a time when no other adults were present to inappropriately touch L.R. and sexually batter her. Similarly, in the present case, Appellant used his relationship with the victim’s caretaker to gain access to the vulnerable victim. Appellant took advantage of a time when other adults in the residence were unavailable to sexually batter the victim. Thus, the collateral crime and the charged crime are sufficiently similar both as a whole and in their means of access. See McLean, 934 So. 2d at 1262; Pridemore, 301 So. 3d at 460. In addition, the collateral-crime evidence did not become a feature of the trial. See McLean, 934 So. 2d at 1262. “[R]elevant evidence of collateral crimes impermissibly becomes a feature of the trial when the evidence ‘transcend[s] the bounds of relevancy to the charge being tried and the prosecution devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.’” Peterson v. State, 2 So. 3d 146, 155 (Fla. 2009) (quoting Conde v. State, 860 So. 2d 930, 945 (Fla. 2003)). Other factors to consider when determining whether collateral-crime evidence is a feature of the trial include the extent to which the prosecutor focused on the collateral-crime evidence in closing argument and how the trial court instructed the jury on the use of the collateral-crime evidence. Pitts, 263 So. 3d at 840–41. Here, although the State presented six witnesses to testify about the collateral-crime evidence, each witness’s testimony was relatively short and did not “transcend[] the bounds of relevancy” or develop into an assault on Appellant’s character. See Peterson, 2 So. 3d at 155 (quoting Conde, 860 So. 2d at 945). Additionally, the State only briefly mentioned the collateral-crime evidence during its opening and closing statements, and the State reminded the jury that the purpose of such evidence was to corroborate the victim’s account. The trial court also properly instructed the jury 9 on the use of collateral-crime evidence both before the State’s introduction of the evidence and during jury instructions. Thus, the trial court did not err by admitting the collateral- crime evidence because it was proven by clear and convincing evidence that the collateral crime occurred, it was properly used to corroborate the child victim’s testimony, and it was not more prejudicial than probative. See McLean, 934 So. 2d at 1256–57, 1262. AFFIRMED. KELSEY and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andrea Flynn Mogensen, Special Assistant Public Defender, Sarasota, for Appellant. Ashley Moody, Attorney General, Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee. 10