ERIC ABOAGYE

v.

STATE OF FLORIDA

PER CURIAM.

Appellant, Eric Aboagye, appeals his convictions for the sexual battery and lewd or lascivious molestation of A.J., a child under twelve years of age. We reject Appellant’s first argument on appeal without discussion. For the reasons that follow, we also reject Appellant’s second argument that the trial court erred by admitting into evidence C.H.’s hearsay statements under section 90.803(23), Florida Statutes, and therefore affirm.

BACKGROUND

Appellant was charged in Count 1 with sexual battery on A.J., a child under twelve years of age, by a defendant eighteen years of age or older and in Count 2 with lewd or lascivious molestation of A.J. The State filed pursuant to section 90.404(2)(b), Florida Statutes, a notice of intent to introduce as similar fact evidence of other crimes, wrongs, or acts testimony that Appellant inserted his fingers into the vagina of thirteen-year-old C.H. and he engaged in sexual intercourse with her. The State also filed pursuant to section 90.803(23), Florida Statutes, a notice of intent to introduce as child hearsay evidence C.H.’s text messages with her cousin and her interview with the Child Protection Team (“CPT”).

At the hearing on the notices of intent, Appellant objected to the admissibility of C.H.’s statements on the grounds that they failed to satisfy the criteria set forth in section 90.803(23)(a) and that they were overly prejudicial and cumulative. The trial court overruled the objections, finding the statements to be admissible. When the State sought to introduce C.H.’s text messages and CPT interview at trial, defense counsel renewed his pretrial objection. After the jury returned a verdict finding Appellant guilty on both counts as charged, the trial court adjudicated Appellant guilty and sentenced him to concurrent terms of life imprisonment. This appeal followed.

ANALYSIS

Appellant argues on appeal that C.H.’s hearsay statements were inadmissible under section 90.803(23), Florida Statutes, because she was not the victim named in the charging document. To preserve an error for appellate review, the party must make a contemporaneous objection and state a legal ground for it, and the argument on appeal must be the specific contention that was asserted as the legal ground for the objection. Corona v. State, 64 So. 3d 1232, 1242 (Fla. 2011); see also § 924.051(1)(b), Fla. Stat. (2019).

An unpreserved claim must constitute fundamental error to justify reversal. § 924.051(3), Fla. Stat.; see also § 90.104(3), Fla. Stat. (2019) (“Nothing in this section shall preclude a court from taking notice of fundamental errors affecting substantial rights, even though such errors were not brought to the attention of the trial judge.”); Corona, 64 So. 3d at 1242. An error is fundamental when it “reaches ‘down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’” Elliot v. State, 49 So. 3d 269, 270 (Fla. 1st DCA 2010) (quoting State v. Delva, 575 So. 2d 643, 644–45 (Fla. 1991)).

Because Appellant did not object to the admissibility of C.H.’s hearsay statements below on the ground that she was not the victim named in the charging document, the issue was not preserved and can be reviewed only for fundamental error. For the reasons discussed below, however, we conclude that the admission of C.H.’s hearsay statements was not erroneous.

The admissibility of child victim hearsay is governed by section 90.803(23), Florida Statutes (2019), which is titled “Hearsay exception; statement of child victim” and provides in part as follows:

(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 16 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any 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 . . . .

(Emphasis added.)

The plain language of section 90.803(23) renders admissible reliable hearsay statements of a “child victim.” Appellant, however, argues that for hearsay statements of a child victim to be admissible, the child must be the victim of the charged offense, citing State v. Dupree, 656 So. 2d 430 (Fla. 1995) (“Dupree II”). Before discussing Dupree II, we must examine Dupree v. State, 639 So. 2d 125 (Fla. 1st DCA 1994) (“Dupree I”), the opinion under review by the Florida Supreme Court in Dupree II, and Russell v. State, 572 So. 2d 940 (Fla. 5th DCA 1990), disapproved of by State v. Dupree, 656 So. 2d 430 (Fla. 1995), the decision the Supreme Court found expressly and directly conflicted with our opinion. See Dupree, 656 So. 2d at 431.

In Russell, the appellant appealed her convictions for capital sexual battery, aggravated battery, and child abuse against her two-year-old daughter, challenging the admissibility of statements made to a child abuse investigator and a therapist by J., the victim’s four-year-old brother who witnessed the attack. 572 So. 2d at 940. The Fifth District held that J.’s out-of-court statements were admissible under section 90.803(23). Id. at 941. The court rejected the appellant’s argument “that the statute allows only statements by the actual physical victim of the abuse and does not apply to child witnesses of the abuse,” reasoning as follows:

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.

Id. at 941–42.

In Dupree I, we reversed the appellant’s first-degree murder conviction and remanded for a new trial upon concluding that it was error to allow several adult witnesses to testify about the out-of-court statements of the six-year-old brother of the victim who witnessed the incident that led to the victim’s death. 639 So. 2d at 126–28 (noting that the issue was preserved because defense counsel objected on the specific ground that section 90.803(23) did not apply to a declarant who was not a victim).

Construing section 90.803(23) against the constitutional backdrop that hearsay statements that do not fall within a firmly rooted hearsay exception are presumed unreliable and inadmissible under the Confrontation Clause, we concluded that “if ‘the declarant child’ does not report himself a victim of the child abuse or neglect which is recounted in the out-of-court declaration, section 90.803(23) . . . does not authorize the admission of testimony reciting the child’s assertion, as the equivalent of testimony to the fact asserted.” Id.

at 125 (noting that we did not find any Florida appellate decision expanding section 90.803(23) “to authorize admission of testimony reciting an out-of court statement by a non-victim witness in a case ‘involv[ing] non-sexual child abuse’” and that “[w]e cannot perceive, moreover, any reason for giving precedence to statements made out of court by children who reportedly witness violent crimes over such statements made by adults. After all, adults may be better able to articulate perceptions better informed, in the first place, by greater experience”).

We noted that Russell “may be read for the proposition that the statute does not distinguish between child witnesses and child victims, but it is best understood as holding that, where sexual abuse occurs in a child’s presence, the ‘witnessing child is a victim of the abuse as surely as is the child who physically suffered the abuse,’” but “[s]ince the present case does not require decision of this question, we express no opinion.” Id. at 128 n.5; see also Arney v. State, 652 So. 2d 437, 438 (Fla. 1st DCA 1995) (concluding that the trial court erred by admitting into evidence the out-of-court statements of the “non-victim child witness” to the beating of the child victim for which the appellant was charged).

In Dupree II, the Florida Supreme Court approved our decision in Dupree I based upon the principle that “where, as here, ‘hearsay statements do not fall within a firmly rooted hearsay exception, they are “presumptively unreliable and inadmissible for Confrontation Clause purposes.”’” 656 So. 2d at 431 (quoting Idaho v. Wright, 497 U.S. 805, 817 (1990)).

The Florida Supreme Court quoted the Fifth District in Russell as deciding that “‘[s]tatements 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’” and reasoning that “‘[a] victim is a victim regardless of any charging document.’” Id. The Supreme Court stated that it did not “read this hearsay exception contained in section 90.803(23) that broadly,” citing to the title of the statute, i.e., “HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.” Id. n.1. The Supreme Court disapproved Russell to the extent it conflicted with its decision, stating as follows:

As explained in this Court’s decision in Feller v. State, 637 So. 2d 911 (Fla.1994), “[s]ection 90.803(23), Florida Statutes (1989), creates a limited exception to the hearsay rule for reliable statements of child victims, eleven years or younger, which describe an act of child or sexual abuse.” Id. at 915 (emphasis added). While we agree that a child can be abused by what the child witnesses, and thereby be a child victim, see Charles W. Ehrhardt, Florida Evidence § 803.23 (1994 ed.), for hearsay statements of the child to be admissible under section 90.803(23), the prosecution of the defendant must be based upon the victimization of the child whose statements are being related. We disapprove the decision in Russell that would expand this hearsay exception.

Id. at 431–32; see also Sheets v. State, 668 So. 2d 295, 296 (Fla. 1st DCA 1996) (reversing the appellant’s convictions for sexual battery upon a child less than twelve and lewd and lascivious act upon a child less than sixteen because the trial court erred by admitting “hearsay statements of a child witness who was not the victim under section 90.803(23)”).

We agree with the State that the admission of C.H.’s hearsay statements under section 90.803(23) was not erroneous. Section 90.803(23) contains a hearsay exception for the reliable out-of-court statements of “a child victim” describing “any act of sexual abuse against a child” “or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child” and makes such evidence admissible “in any civil or criminal proceeding.” While the statute requires the declarant to be “a child victim,” it does not require the declarant to be the victim of the charged crime being prosecuted.

Dupree is distinguishable because it involved a non-victim witness declarant. Had C.H. been merely a witness to Appellant’s sexual assault on A.J., her hearsay statements would be inadmissible pursuant to Dupree I and II.

However, C.H. was herself a victim, and she was the victim of the sexual assault that was recounted in her out-of-court statements. In Dupree I we required for the admissibility of a child hearsay statement only that the declarant child report herself a victim of the child abuse that is recounted in the out-of-court declaration. 639 So. 2d at 125. The Florida Supreme Court approved our decision. 656 So. 2d at 431. In addressing Russell, the Florida Supreme Court made the broader statement that “[w]hile we agree that a child can be abused by what the child witnesses, and thereby be a child victim, . . ., for hearsay statements of the child to be admissible under section 90.803(23), the prosecution of the defendant must be based upon the victimization of the child whose statements are being related.” Id. at 432.

The context of that statement, upon which Appellant relies, as well as the circumstances presented in both Russell and Dupree I, reflect that the Supreme Court was considering only the issue of whether the hearsay statements of a non-victim child witness can qualify under section 90.803(23), and the Court concluded that the child witness must be the victim of the charged crime. See id. The Florida Supreme Court was not presented with, and did not rule upon, the issue of whether the hearsay statements of another child victim can qualify under section 90.803(23) when that child is not the victim of the prosecuted crime but is testifying as to similar fact evidence.

Therefore, we conclude that C.H.’s hearsay statements were admissible under section 90.803(23).

For the foregoing reasons, we affirm Appellant’s judgment and sentences.

AFFIRMED.

LEWIS and NORDBY, JJ., concur; TANENBAUM, J., concurs with opinion.