RUSSELL v. STATE

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Docket Number

No. 89-678.

Attorney(S)

Andrew G. Natelson, Flagler Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for appellee.

Judges

GOSHORN, Judge.

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Smart Summary

Factual and Procedural Background

Kathryn Russell was convicted by a jury of capital sexual battery, aggravated battery, and child abuse of her two-year-old daughter, A. The appeal centers on issues raised by Russell following the judgment and sentence imposed. The key factual point relevant to this appeal is that J., A.'s four-year-old brother, witnessed the attack on A. J. made statements to a child abuse investigator and later to his therapist, which were admitted into evidence over objections by the defense. The trial court admitted these statements under exceptions to the hearsay rule, specifically as an excited utterance and under the hearsay exception for statements of child victims of sexual abuse pursuant to section 90.803(23), Florida Statutes (1989).

Legal Issues Presented

Whether statements made by a child witness to abuse, who is not the physical victim, are admissible under the hearsay exception for statements of child victims of sexual abuse under section 90.803(23), Florida Statutes (1989).
Whether the trial court properly admitted J.'s statements given that he was a witness and not the direct victim of the abuse.

Arguments of the Parties

Appellant's Arguments

The appellant argued that section 90.803(23) applies only to statements made by the actual physical victim of the abuse and does not extend to child witnesses of the abuse.
Russell also attempted to raise an issue regarding the sufficiency of the trial court's findings required under section 90.803(23), but this was deemed waived as no objection was made at trial.

Appellee's Arguments

The appellee contended that the statute protects victimized children from emotional harm and trauma in judicial proceedings, including children who are victims as witnesses, not solely those physically abused.
They argued that J., as a witness to the abuse, qualifies as a victim under the statute and that his statements were properly admissible.
Alternatively, they asserted that the abuse of A. in J.'s presence constituted lewd and lascivious acts against J., making him a victim under the statute.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Jano, 524 So.2d 660 (Fla. 1988)	Admissibility of statements as excited utterances.	The court held that even if the first statement was not admissible as an excited utterance under this precedent, it was admissible under the hearsay exception for child victims in section 90.803(23).
Stone v. State, 547 So.2d 657 (Fla. 2d DCA 1989)	Waiver of objections regarding sufficiency of trial court findings.	The court cited this case to reject appellant's late objection to the sufficiency of the trial court’s findings under section 90.803(23), noting it was not preserved at trial.

Court's Reasoning and Analysis

The court analyzed the applicability of section 90.803(23), Florida Statutes (1989), which provides a hearsay exception for statements made by child victims of sexual abuse or sexual offenses. The statute requires a finding that the statement is reliable and that the child either testifies or is unavailable with corroborating evidence. The appellant argued that the statute only applies to the actual physical victim, but the court disagreed, emphasizing the legislative intent to protect children who are victims either as direct targets or as witnesses. The court noted that the legislature recognized children as vulnerable victims in the judicial system regardless of whether they were the direct object of the abuse. Therefore, J., who witnessed the abuse and met the statutory criteria, was properly considered a victim for purposes of the hearsay exception. The court alternatively found that the abuse constituted lewd and lascivious acts in J.’s presence, further supporting the admissibility of his statements. The court also rejected the appellant’s untimely challenge to the sufficiency of the trial court’s findings, citing precedent that such objections must be raised at trial.

Holding and Implications

Affirmed.

The court affirmed the judgment and sentence against Kathryn Russell, holding that statements made by a child witness to abuse are admissible under section 90.803(23) as the child qualifies as a victim under the statute. The decision clarifies that the hearsay exception for statements of child victims includes children who witness abuse, not only those physically abused. The ruling directly affects the admissibility of evidence in similar cases but does not establish a new precedent beyond the interpretation of the existing statute. No broader implications beyond the case’s parties were discussed.

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KATHRYN G. RUSSELL, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

GOSHORN, Judge.

Kathryn Russell appeals the judgment and sentence imposed following a jury verdict finding her guilty of the capital sexual battery, aggravated battery and child abuse of her two-year-old daughter, A. Of the numerous issues raised by defendant, we find only the issue regarding the admissibility of statements made by A.'s four year old brother, J., merits discussion.

J. witnessed the savage attack on A. Twenty-nine and a half hours after A. was discovered, J. stated to Fred Siebert, HRS child abuse investigator, "Kathryn Russell was the hands of the monster." Six weeks later, J. informed his therapist, in response to a question regarding defendant's location, "Mommy was in the big bed." Both statements were admitted over timely objections. The first was admitted as an excited utterance pursuant to section 90.803(2), Florida Statutes (1989) and the second was ruled admissible under section 90.803(23), Florida Statutes (1989), a hearsay exception for statements of child victims of sexual abuse. Even if the first statement was not properly admitted as an excited utterance, see State v. Jano, 524 So.2d 660 (Fla. 1988), we hold that it was admissible under section 90.803(23), as was the second statement.

It was established that the "monster" referred to by J. was codefendant, Leonard Johnson. Johnson was tried and found guilty of capital sexual battery, aggravated sexual battery and aggravated child abuse.

Section 90.803(23), Florida Statutes (1989) states:

This statute was amended effective October 1, 1990 to make it applicable not only to victims of sexual abuse or sexual offenses, but also to victims of neglect. See Chapter 90-174, Laws of Florida.

(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE AGAINST A CHILD. —

(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse, sexual abuse, or any other offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, 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; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).

(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.

(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

Russell argues that the statute allows only statements by the actual physical victim of the abuse and does not apply to child witnesses of the abuse. We disagree. The purpose of the statute is to protect victimized children "from emotional harm and trauma occasioned by judicial proceedings." See Chapter 85-53, Laws of Florida, setting forth the legislature's intent in adopting section 90.803(23). The legislature specifically recognized that "children are in need of special protection as victims or witnesses in the judicial system as a result of their age and vulnerability." [Emphasis added.] Id. Statements made by a child who witnessed sexual battery and aggravated child abuse and who otherwise meets the statutory criteria are not excepted from admissibility merely because this child was not the object of the attack. The witnessing child is a victim of the abuse as surely as is the child who physically suffered the abuse. The fact that a defendant is not charged with a criminal act against the witness victim is not relevant. A victim is a victim regardless of any charging document. No logical distinction can be drawn between types of victims for purposes of the statute. The facts of this case established that J. is a victim and his statements were properly admissible in Russell's trial. Alternatively, we find that the abuse of A. in the presence of J. constituted lewd and lascivious acts in J.'s presence. Accordingly, J. is a victim of lewd and lascivious acts committed in his presence and his statements are admissible under section 90.803(23).

In defendant's answer brief, Russell attempts to raise, for the first time, an issue regarding the sufficiency of the trial court's findings which are required under section 90.803(23). Defense counsel did not object below to the sufficiency thereof and will not now be heard to argue this point. See Stone v. State, 547 So.2d 657 (Fla. 2d DCA 1989).

See Ehrhardt, Florida Evidence § 803.23(a) (2d ed.) Supp. 1989. Ehrhardt states that the inclusion in the statute of the language "performed in the presence of" was intended to make section 90.803(23)(a) applicable to lewd and lascivious acts where not touching occurred. We note that Ehrhardt also posits that the exception does not apply to witnesses to the abuse; however, we disagree for the reasons set out above.

AFFIRMED.

W. SHARP, J., concurs.

DAUKSCH, J., concurs in conclusion only.