Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3591 _____________________________ MICHAEL L. FITZSIMMONS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. J. Lee Marsh, Judge. November 25, 2020 PER CURIAM. Michael L. Fitzsimmons appeals his judgment and sentence for sexual battery on a child under twelve and lewd or lascivious molestation. We agree with appointed counsel that the record contains no reversible error and affirm. See Anders v. California, 386 U.S. 738 (1967). But we write to address the two issues identified by counsel as potential errors by the trial court: (1) the admission of child hearsay statements and (2) the denial of the motion for judgment of acquittal. In 2017, the State charged Fitzsimmons with six counts of capital sexual battery, one count of lewd conduct, and one count of lewd molestation of a child under the age of twelve. The information alleged that Fitzsimmons abused two child victims. Before trial, the charges involving the two victims were severed and the cases involving each victim proceeded independently. The charges here, one count of capital sexual battery and one count of lewd molestation of a child under twelve, originated from statements the victim made to several witnesses about Fitzsimmons inappropriately touching her. Before trial, the State noticed its intent to introduce into evidence hearsay statements made by the victim to four of those witnesses. The State also noticed its intent to introduce the recording of the Child Protection Team’s (CPT) interview of the victim. The court held a hearing to determine whether the statements were admissible as child hearsay statements. The first witness, the girlfriend of Fitzsimmons’ son, Caleb, testified that the victim told her about the sexual abuse one day when the girlfriend messaged the victim to arrange a ride home for her. The girlfriend suggested that Fitzsimmons give the victim a ride home. But the victim did not feel comfortable around Fitzsimmons. The victim told Caleb’s girlfriend that Fitzsimmons made her do inappropriate things. So the girlfriend then told Caleb about her conversation with the victim. And together, they made a report to the police. Caleb was the second witness. He testified that the victim texted him asking for a ride home. When Caleb offered to have his father give her a ride home, the victim told him that she did not feel comfortable with that. The victim told Caleb that Fitzsimmons made her do inappropriate things. The third witness was the victim’s mother. She testified that she learned about Fitzsimmons’ abuse of her daughter on the same day as Caleb and his girlfriend. The victim told her mother about several ways that Fitzsimmons touched her private parts. The fourth witness, Deputy Michael Zimba, testified that he received the report from Caleb and his girlfriend. He then interviewed the victim. The victim told Zimba that starting in 2011 and continuing to 2014, there were many occasions when Fitzsimmons touched her private parts and had the victim touch his private parts. 2 The State then submitted the CPT interview for the trial court to view later. After the hearing, the trial court ruled that it would allow the State to introduce the CPT interview as a whole as child hearsay. It also allowed the State to introduce the statements the victim made to Caleb’s girlfriend, the victim’s mother, and Deputy Zimba. The court found that the child victim’s statements were trustworthy and reliable. But it excluded the statements made to Caleb based on the State’s failure to adequately notify the defense on the nature of his testimony. The case then went to trial. The State presented the testimony of the victim and several witnesses. The victim testified that Fitzsimmons started touching her when she was six or seven years old. He made her touch him “down in his private parts” more times than she could count. One time he licked her private parts. The abuse continued until the victim was eleven years old. She told no one about what Fitzsimmons did because he told her to keep quiet. But eventually, she felt comfortable enough to tell Caleb’s girlfriend. Caleb’s girlfriend testified next. She corroborated that the victim told her about Fitzsimmons inappropriately touching her. She confirmed that she and Caleb called the police to report the sexual abuse. And Caleb testified that when he learned about the encounters, he called the police. Then, Deputy Zimba testified that he responded to the report from Caleb and his girlfriend. He interviewed the victim. And she told him that Fitzsimmons touched and licked her private parts and made her touch his private parts. Last, the State played a recording of the CPT interview for the jury. The jury heard the victim’s recollection of how Fitzsimmons had abused her. The victim recounted the first time Fitzsimmons inappropriately touched her. She explained that it happened almost every weekend at first. She talked about times when Fitzsimmons touched her, licked her, made her touch him, and made her watch pornography with him. But she never told anyone because she felt bad about it and felt like it was her fault. 3 After the State rested, the defense presented the testimony of three witnesses. The defense then rested. The jury found Fitzsimmons guilty as charged. The trial court adjudicated him guilty and sentenced him to life in prison. This timely appeal follows. Analysis Fitzsimmons’ appointed counsel is unable to present any good- faith assertion of reversible error. But he identifies two potential errors by the trial court: (1) the admission of the child hearsay statements and (2) the denial of the motion for judgment of acquittal. Admission of Child Hearsay Statements We first consider whether the trial court erred when it allowed the State to introduce several child hearsay statements. We review the trial court’s ruling for an abuse of discretion. Cabrera v. State, 206 So. 3d 768, 770 (Fla. 1st DCA 2016). Section 90.803(23), Florida Statutes (2019), provides an exception to the hearsay rule for statements made by a child victim. For a child hearsay statement to be admissible, the statement must meet two specific reliability requirements: (1) the source of the information through which the statement was reported must show trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability. State v. Townsend, 635 So. 2d 949, 954 (Fla. 1994). The Legislature established these requirements “to balance the need for reliable out-of-court statements of child abuse victims against the confrontation and due process rights of those accused of child abuse.” Id. When determining whether the time, content, and circumstances of the statement provide sufficient safeguards of reliability, the “court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate.” § 90.803(23)(a)1., Fla. Stat. (2019). 4 Here, the trial court analyzed whether each of the hearsay statements from the victim was reliable enough to admit into evidence. The court found that the child victim provided detailed accounts of several instances of improper touching consistent with reports to various witnesses. And the child described events that happened to her in a consistent way. The questions posed to the child were open ended and non-leading. The child gave answers using words consistent with her age. And there was nothing to show that the statements lacked any sort of untrustworthiness or that there was coercion or coaching. Based on these findings, the trial court ruled that the statements the victim made to her mother, Caleb’s girlfriend, and Detective Zimba were reliable enough to allow their admission into evidence. We find no error in the trial court’s ruling. The three child hearsay statements were reliable enough to be admitted into evidence under the child hearsay exception. Motion for Judgment of Acquittal Next, we consider whether the trial court erred in denying Fitzsimmons’ motion for judgment of acquittal. We review the trial court’s ruling on this issue de novo. Moran v. State, 278 So. 3d 905, 908 (Fla. 1st DCA 2019). We must affirm the trial court’s ruling if the State presented competent, substantial evidence to support the verdict. See Bush v. State, 295 So. 3d 179, 201 (Fla. 2020) (“This standard should now be used in all cases where the sufficiency of the evidence is analyzed.”). The State met its evidentiary burden here. To convict Fitzsimmons of sexual battery on a child under twelve years old, the State had to prove beyond a reasonable doubt that (1) Fitzsimmons committed an act on the victim in which the sexual organ of the victim had union with the mouth of Fitzsimmons; (2) at the time of the offense, the victim was younger than twelve years old; and (3) at the time of the offense, Fitzsimmons was eighteen or older. See § 794.011(2)(a), Fla. Stat. (2017). And to convict Fitzsimmons of lewd and lascivious molestation, the State had to prove beyond a reasonable doubt that 5 (1) Fitzsimmons, in a lewd or lascivious manner, intentionally forced or enticed the victim to touch the genitals or genital area of Fitzsimmons; (2) at the time of the offense, the victim was younger than twelve years old; and (3) at the time of the offense Fitzsimmons was eighteen or older. See § 800.04(5)(b), Fla. Stat. (2017). The State presented competent, substantial evidence on both charges. First, the victim testified that Fitzsimmons licked her vagina and made her touch his private parts more times than she could count. Her statements to Deputy Zimba and in the CPT interview corroborated that testimony. This testimony satisfied the first element of both charges. Second, the victim testified in detail how Fitzsimmons began touching her private parts when she was six or seven years old and how the improper touching continued until she was eleven years old. This testimony satisfied the second element of both charges. And third, there was indirect testimony that Fitzsimmons was over the age of eighteen. Caleb testified that he was twenty-three years old and that Fitzsimmons was his father. And the evidence showed that the victim’s father had been friends with Fitzsimmons for more than twenty-five years. This testimony satisfied the third element of both charges. Because the State presented sufficient evidence on each element of the charged offenses, the trial court did not err in denying the motion for judgment of acquittal. And finding no error by the trial court, we affirm Fitzsimmons’ judgment and sentence. AFFIRMED. ROWE, OSTERHAUS, and LONG, JJ., concur. 6 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant; and Michael Fitzsimmons, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 7