5D06-3720 Gilberto Lugo v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-3720

Case Date: 12/24/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

GILBERTO LUGO, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed December 28, 2007 Appeal from the Circuit Court for Orange County, Frank N. Kaney, Senior Judge. James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee. CASE NO. 5D06-3720 CORRECTED OPINION

LAWSON, J. Gilberto Lugo appeals from his judgment and thirty-year sentence on the charge of lewd or lascivious molestation (child under age 12). We affirm the conviction and sentence. Only one issue was preserved for appellate review, and we will briefly

address that issue.

At trial, the father of the victim testified that he basically caught Lugo molesting his child. However, when the State called the victim to testify, she began crying when asked about the incident, and could not answer questions because of her emotional state. Additionally, the prosecutor did not attempt to offer the child's out-of-court

statements confirming the sexual abuse. As its last witness, however, the prosecutor called a child protection team ("CPT") interviewer, and asked about out-of-court answers given by the child that would tend to show that the victim could accurately relate to others matters that she had personally observed, and that she understood what it meant to be truthful. These were standard questions, such as asking the child to describe the color of an object, and then confirming that the child understood that it would not be truthful to say that the object was a different color. The only alleged error preserved for appellate review is the admission of this testimony over the defense's hearsay objection. As the prosecutor argued at trial, and the trial court found, this

testimony did not involve hearsay because the child's out-of-court statements were not being offered to prove the truth of the matters asserted in the child's responses to the questions posed. See

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