Opinion
Nos. 1D18-4483 1D18-4484 1D18-4485 1D18-4486
04-03-2020
Oliver YOUNG, Jr., Appellant, v. STATE of Florida, Appellee.
Chuck Collins, Collins Law Firm, Monticello, for Appellant. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
Chuck Collins, Collins Law Firm, Monticello, for Appellant.
Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
Bilbrey, J.
Oliver Young, Jr., appeals his two convictions for lewd and lascivious molestation of a child under the age of 12 years arguing the trial court erred in admitting child hearsay. We affirm.
Prior to trial, the State gave notice of its intent to introduce out-of-court statements made by the child victims. The State intended to introduce the hearsay through two witnesses, a case worker with the Child Protection Team, and the paternal grandmother of the children. The defense objected, and a hearing was held to determine the admissibility of the evidence under section 90.803(23), Florida Statutes (2018). After receiving argument and the proffered testimony, the trial court made oral findings in support of its determination that the hearsay was admissible. The trial court indicated it would enter a written order at a later time, but no written order appears in the record.
Young suggests on appeal that the trial court erred in not entering the written order. However, section 90.803(23) does not mandate that a trial court enter written findings. Instead, the statute provides only that the trial court "shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection." Id . Young made no objection to the sufficiency of the oral findings. As for the possibility that Young did not object to the sufficiency of the oral findings because he was anticipating entry of written findings, he cannot now seek reversal of his conviction when he failed to inquire below as to the lack of written findings. See Cowan v. State, 165 So. 3d 58 (Fla. 1st DCA 2015) ; Elwell v. State , 954 So. 2d 104 (Fla. 2d DCA 2007).
Young also argued below, and renews the argument here, that the probative value of the child victim hearsay was outweighed by unfair prejudice. We find no abuse of discretion. See Jenkins v. State , 242 So. 3d 499 (Fla. 1st DCA 2018) (applying the abuse of discretion standard to review the admission of hearsay statements of a child victim of sexual abuse).
" ‘Relevant evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters.’ " State v. Blackwell , 787 So. 2d 963, 965 (Fla. 1st DCA 2001) (quoting State v. Andres , 552 So. 2d 1151, 1153 (Fla. 3d DCA 1989) ). " ‘Section 90.403 ... is directed at evidence which inflames the jury or appeals improperly to the jur[ors’] emotions.’ " Steverson v. State , 695 So. 2d 687, 688–89 (Fla. 1997) (quoting C. Ehrhardt, Florida Evidence § 403.1 at 100–03 (2d ed. 1984)).
Given the dearth of physical evidence, the statements of the children to their grandmother and then to the Child Protection Team interviewer were quite probative, especially given that statements were made in temporal proximity to the alleged commission of charged offenses. Given the lack of corroborating evidence, the hearsay certainly was not cumulative or repetitive. While testimony about child sexual abuse is by its nature unsettling, the hearsay introduced below was not unnecessarily inflammatory or improperly directed to the jury's emotions. Accordingly, the trial court did not abuse its discretion in rejecting the assertion that the hearsay was unfairly prejudicial. Young's convictions are affirmed.
The two molestation offenses occurred while Young was on probation for multiple drug convictions. Although not raised on appeal, it would appear that the trial court's written sentences following revocation of probation do not correspond to the oral pronouncement of sentence. See
AFFIRMED .
Roberts and Winokur, JJ., concur.
Ashley v. State , 850 So. 2d 1265, 1268 (Fla. 2003) (holding a trial court's oral pronouncement of sentence controls over the written sentencing document).