5D03-3143 Jesse Blanton v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-3143

Case Date: 08/09/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

JESSE L. BLANTON, Appellant, v. Case No. 5D03-3143 STATE OF FLORIDA,

Appellee. / Opinion filed August 13, 2004 Appeal from the Circuit Court for Seminole County, O. H. Eaton, Judge. James B. Gibson, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee. TORPY, J. ON MOTION FOR REHEARING We grant rehearing to address one point, discussed in footnote 4, and supplant our prior opinion. In all other respects the Motion for Rehearing is denied. In this capital sexual battery case, Appellant raises two issues: First, whether the child victim hearsay exception set forth in section 90.803(23), Florida Statutes (2003), applies if

the child victim was age 11 or less at the time she gave a statement to police, but over age 11 at the time of the hearing on the motion to admit the statement. Second, whether Appellant's constitutional right of confrontation was violated by the admission of the statement, even though Appellant's counsel deposed the child after she gave the statement. We conclude that the statutory hearsay exception does apply, and Appellant's right of

confrontation was not infringed. Therefore, we affirm the lower court's decision admitting the statement. Appellant is the victim's father, having adopted the victim when she was very young. He was charged with numerous counts of Capital Sexual Battery and Promoting Sexual Performances by a Child. At the time of the offenses, the victim was 11 years old and Appellant was approximately 39. The primary evidence against him was a videotape recording, with an audio track of Appellant's voice, and numerous photographs depicting the victim in various lewd poses, some of which also depicted Appellant engaged in acts of sexual battery with the victim. The videotape and photographs were found by police at Appellant's house when they served a search warrant. When the victim was still 11 years old, she made a statement to a police investigator, recorded on audiotape, wherein she stated that the photographs and video all depicted her, that Appellant was also depicted in several of them, and that it was Appellant's voice on the audio portion of the video. By the time of the hearing on the State's motion to introduce the statements pursuant to section 90.803(23), Florida Statutes, however, the victim was 13 years old. Finding that the victim, who suffers from post-traumatic stress disorder, was legally unavailable to testify due to her psychological condition, the trial court granted the State's 2

motion and received the statement as evidence at the subsequent non-jury trial. Appellant was convicted on several counts and sentenced to life imprisonment. Regarding Appellant's first issue on appeal, the relevant statute provides in pertinent part as follows: 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 . . . child abuse or neglect,[or] any act of sexual abuse against a child . . . is admissible in evidence in any civil or criminal proceeding. . . .

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