Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1127 _____________________________ COY GODBOLT, JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. James M. Colaw, Judge. May 18, 2021 RAY, C.J. Coy Godbolt, Jr., appeals his convictions for one count of attempted sexual battery on a person under 12 years by a person 18 years or older and two counts of lewd or lascivious molestation on a person under 12 years by a person 18 years or older. He argues that (1) the trial court erred by permitting the admission of collateral crimes evidence of prior acts of child molestation and (2) fundamental error occurred when he was convicted of lewd or lascivious molestation based only on child hearsay statements. We affirm the first issue without discussion. As to the second issue, we conclude that no fundamental error occurred under these facts. I. In counts II and III of the information, the State alleged two separate acts of lewd or lascivious molestation. Count II pertained to allegations that Godbolt touched the victim’s buttocks with his penis. Count III concerned allegations that Godbolt forced the victim to touch his penis with her hand. At the March 2020 trial, the State introduced evidence that 56-year-old Godbolt, who was friends with the victim’s mother, sometimes babysat the 9-year-old victim and her 11-year-old brother while their mother was working for an election campaign. The job—and the need for Godbolt’s babysitting services—only lasted for two months and ended in November 2018, after the election was over. Later, the victim’s mother noticed that her daughter, who was normally happy and outgoing, started to avoid Godbolt when he came over and even ran and hid. At first, she thought it was a joke. She became concerned when it happened two or three times. In February 2019, the victim and her mother were watching TV together when the victim said that she wanted to tell her mother something. They sat down in the mother’s bedroom and the victim began to cry. She disclosed that Godbolt had touched her, rubbed his penis on her, and made her touch him. He had threatened to kill her mother if she told anyone. The next morning, the victim’s mother reported the allegations to the police. Days later, the victim was interviewed by Alexis Curtis, a member of the Child Protective Team (CPT). The CPT video was played for the jury. At the beginning of the interview, the victim was happy and calm. But after Ms. Curtis asked if the victim knew why she was there, the victim started crying and could not speak. When the victim calmed down, she explained that Godbolt had touched her “private part” three times when they were in the living room. He had touched her over her clothes and under her clothes, sticking his finger inside her private part. One time, he also forced her to touch his penis over his clothes. She tried to pull her hand away, but he was too strong. He only let her go because her brother was coming. Additionally, on a day when they had eaten pizza, Godbolt had touched her butt with his penis. The victim’s brother 2 was playing videogames in the living room and she was standing in the kitchen. Godbolt walked up behind her, pushed her up against the cupboards, and rubbed his penis against her butt. He asked her if she liked it and she told him no. He had threatened to kill her mother if she told anyone. By trial, the victim was 10 years old. She acknowledged that it was hard to talk about what had happened. In response to the prosecutor’s questions, she sometimes nodded or shook her head. She testified that while Godbolt babysat her, he touched her private part more than once, both inside the clothing and outside. The molestation happened on the living room sofa while she was watching her brother play video games. She agreed that he had touched her at times other than the time on the sofa and that Godbolt also made her touch his private part. When the prosecutor asked her if Godbolt ever said anything to her when he molested her, she shook her head. The prosecutor asked whether Godbolt ever told her what would happen if she told anyone what he had done, and the victim testified that he had threatened to kill her mother if she told anyone. When the prosecutor asked if Godbolt had ever used his private part to touch her, the victim shook her head. The prosecutor asked if Godbolt ever did anything to her in the kitchen. The victim replied, “I don’t remember.” But the victim agreed that she remembered speaking to Ms. Curtis and telling her what Godbolt had done. She also agreed that everything she told Ms. Curtis was true. The prosecutor asked her, “When you talked to [Ms. Curtis] in the room with the brown chairs, do you remember . . . telling her about being pushed up against the cupboard by [Godbolt] in the kitchen?” The victim answered in the affirmative. At the end of Godbolt’s trial, he was convicted of attempted sexual battery (a lesser-included offense) and two counts of lewd or lascivious molestation. He was sentenced to 30 years in prison for attempted sexual battery and life in prison for each lewd or lascivious molestation, with all sentences imposed consecutively. 3 II. On appeal, Godbolt contends that since the victim did not testify at trial that Godbolt touched her buttocks with his penis and forced her to touch his penis, his convictions for lewd or lascivious molestation depended solely on the hearsay statements the victim had made to her mother and Ms. Curtis. Because this challenge was not preserved below, our review is for fundamental error. Fundamental error occurs “when the evidence is insufficient to show that a crime was committed at all.” F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003). Godbolt mainly relies on the Florida Supreme Court’s decisions in Beber v. State, 887 So. 2d 1248 (Fla. 2004), and Baugh v. State, 961 So. 2d 198 (Fla. 2007), to argue that prior inconsistent child hearsay statements alone cannot sustain a criminal conviction. Like this case, those cases involved the admission of pretrial statements as substantive evidence under the child victim hearsay exception in section 90.803(23), Florida Statutes. The critical differences here, however, are that the victim did not completely repudiate or recant her prior out-of-court statements at trial, and the evidence showed that crimes were committed. In Beber, the defendant was charged with several sexual offenses, including a count of capital sexual battery alleging that he had touched the six-year-old victim’s penis with his mouth. 887 So. 2d at 1249–50. At trial, the State introduced the victim’s recorded CPT interview, in which the victim disclosed that the defendant had put the victim’s penis in his mouth two times. Id. at 1250. But when the then-8-year-old victim was called to the stand, he only testified to the defendant touching his penis with his hand. Id. When the prosecutor asked the victim if the defendant touched him with anything else, the victim said that he did not know. Id. On cross-examination, the victim testified that he was sure the defendant did not touch him with anything but his hand. Id. Florida’s Fifth District Court of Appeal affirmed the defendant’s capital sexual battery conviction despite the conflict between the child hearsay statement and the victim’s trial testimony. 887 So. 2d at 1251. On review, the supreme court quashed the district court’s opinion, holding that the victim’s prior 4 inconsistent statement was insufficient to support the defendant’s conviction. Id. at 1253. The supreme court reasoned that due process requires the State to prove every fact necessary to a defendant’s conviction beyond a reasonable doubt. Id. at 1251. Because the only evidence to support the defendant’s sexual battery conviction was a child hearsay statement that the victim had contradicted at trial, the evidence was insufficient as a matter of law. Id. at 1252–53. Similarly, in Baugh, the defendant was charged with capital sexual battery based on allegations that he had forced the victim to perform oral sex on him. 961 So. 2d at 201. At trial, the State presented the victim’s prior statements disclosing the abuse to a detective, a CPT nurse, and her mother. Id. But the victim testified that she made up the allegations to get the defendant into trouble, using details about the sexual act that she had learned from her older brother. Id. Given this testimony, the defendant moved for a judgment of acquittal, which the trial court denied. Id. Florida’s Second District Court of Appeal affirmed, concluding that while the prior inconsistent statements alone could not support the sexual battery conviction, there was sufficient corroborating evidence to establish the defendant’s guilt. Id. at 202. On review, the supreme court framed the issue as follows: If a child victim of sexual abuse totally repudiates her out- of-court statements at trial, and the prosecution adduces no eyewitness or physical evidence of abuse, must the trial court grant a judgment of acquittal when the other evidence presented by the prosecution does not corroborate the facts alleged in the victim’s repudiated statement? 961 So. 2d at 200 (emphasis added). The supreme court reiterated that “a prior inconsistent statement standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt.” Id. at 204 (quoting State v. Green, 667 So. 2d 756, 760 (Fla. 1995)). But it explained that recanted statements that are corroborated by other evidence can support a conviction. Id. Applying these principles to the facts before it, the court observed that the victim’s recanted pretrial statements were the only direct evidence that the 5 defendant had placed his penis in the victim’s mouth. Id. at 203. The court concluded that the evidence the district court relied on to corroborate her prior statements was circumstantial and subject to other inferences besides guilt. Id. at 204–05. Thus, the supreme court answered the question above in the affirmative and quashed the district court’s decision. Id. at 205. Turning back to the facts here, contrary to Godbolt’s assertions, the victim did testify at trial that he forced her to touch his penis. The victim never contradicted her prior statements about that incident. Godbolt has therefore showed no error, let alone a fundamental error, in his conviction on count III. Count II, which concerned allegations that Godbolt touched the victim’s buttocks with his penis, presents a closer question. But we ultimately disagree with Godbolt that his conviction on that count is fundamentally erroneous. Unlike the victim in Baugh, the victim here did not testify that she made up the allegations. Nor did she equivocate before testifying conclusively that the charged conduct never happened, as seen in Berber. Rather, when the State asked the victim about the conduct charged in count II, she shook her head in an apparent denial, but later testified that she did not remember the incident. Yet she remembered telling Ms. Curtis about Godbolt pushing her up against the kitchen cupboards, and she reaffirmed the truth of the statements made during her CPT interview. Because the victim did not totally repudiate her pretrial statements—which the trial court determined carried the requisite safeguards of reliability for admission as substantive evidence— we cannot say that the evidence was insufficient to show that a crime was committed at all. Cf. Mendez v. State, 271 So. 3d 1093, 1098–99 (Fla. 3d DCA 2019) (holding that molestation conviction constituted fundamental error where the only evidence that the molestation occurred was from the child victim hearsay and child repeatedly denied remembering anything about the incident at trial). Viewed through the lens of fundamental error, we AFFIRM. ROBERTS and WINOKUR, JJ., concur. 6 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Benjamin Louis Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 7