KENNETH POUKNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Poukner appealed his convictions for sexual battery and lewd, lascivious assault on a child. The appellate court found merit only in his sentencing argument, holding that the trial court improperly sentenced him for lewd and lascivious assault without using the required sentencing guidelines scoresheet.
The statute was previously found constitutional. Although the trial court erred in admitting videotaped testimony without an individualized finding, this was harmless error due to Poukner's confession. The hearsay issue was not preserved for review due to lack of objection. The trial court clearly erred in failing to use a guidelines scoresheet for the lewd and lascivious assault sentence.
[1] A statute previously found constitutional remains constitutional.
[2] Failure to make an individualized finding regarding potential harm to a child witness is harmless error when overwhelming evidence of guilt exists.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court did err in not making such an individualized finding. However, in this case that error is rendered harmless by Poukner's confession to the commission of the sexual battery.”
Establishes that while the trial court failed to make required individualized findings under section 92.53, the error was harmless because the confession provided overwhelming evidence of guilt.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePoukner was convicted of sexual battery and lewd, lascivious, or indecent assault upon a child. At trial, videotaped testimony from one child victim w…
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HALL, Judge.
The appellant, Kenneth Poukner, challenges his judgments and sentences for sexual battery and lewd, lascivious, or indecent assault upon a child. Although we only find merit in his contention that he was improperly sentenced, we find it necessary to briefly discuss his other two contentions.
First, Poukner contends that section 92.53, Florida Statutes (1985), is unconstitutional. However, that statute was specifically found constitutional in Glendening v. State, 536 So. 2d 212, 217 (Fla.1988). Alternatively, Poukner contends that the trial court erred in admitting the videotaped testimony of one of the child victims without making an individualized finding, as required by section 92.53, see Glendening, that there is a substantial likelihood that that victim would suffer at least moderate emotional or mental harm if she were required to testify in open court. The trial court did err in not making such an individualized finding. However, in this case that error is rendered harmless by Poukner’s confession to the commission of the sexual battery. The confession provides overwhelming evidence of guilt and allows us to determine beyond a reasonable doubt that the error did not contribute to Pouk-ner’s conviction of that offense. See Jaggers v. State, 536 So. 2d 321 (Fla.2d DCA 1988).
Second, Poukner contends that the trial court erred in admitting the hearsay statements of the child victims because he failed to make the specific findings required in section 90.803(23), Florida Statutes (1985).' This issue was not preserved for our review as no objection was made when the trial court found the statements admissible.
Third, Poukner contends, and we and the state agree, that the trial court erred in not using a guidelines scoresheet in sentencing him for the noncapital offense of lewd and lascivious assault.
Accordingly, we affirm Poukner’s convictions for lewd and lascivious assault and sexual battery and the sentence for sexual battery, but we reverse Poukner’s sentence for lewd and lascivious assault and remand with directions to the trial court to resen-tenee Poukner using a guidelines score-sheet.
FRANK, A.C.J., and PATTERSON, J., concur.
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Elwell v. State, 954 So. 2d 104 (Fla. 2d DCA 2007)…gs Under Section 90.803(23) This court has held that a defendant must object to the sufficiency of the trial court’s findings regarding the admissibility of child-hearsay statements in order to raise the legal error on appeal. See Poukner v. State, 556 So. 2d 1231, 1232 (Fla. 2d DCA 1990) (“Poukner contends that the trial court erred in admitting the hearsay statements of the child victims because [it] failed to make the specific findings required in section 90.803(23), Florida Statutes (1985). This issue was…1 / 2
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Jones v. State, 610 So. 2d 105 (Fla. 3d DCA 1992)…CA1989); see also Myles v. State, 582 So. 2d 71, 72-73 (Fla. 3d DCA1991), quashed on other grounds, 602 So. 2d 1278 (Fla.1992); Sanders v. State, 568 So. 2d 1014, 1014-15 (Fla. 3d DCA1990), review denied, 581 So. 2d 166 (Fla.1991); Poukner v. State, 556 So. 2d 1231, 1232 (Fla. 2d DCA1990); Freeman v. State, 545 So. 2d 915, 916-17 (Fla. 2d DCA), review denied, 548 So. 2d 662 (Fla.1989). We therefore need not reach the merits of the claim that the findings should have been made with greater particularity. Third…
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Prescott v. State, 594 So. 2d 867 (Fla. 4th DCA 1992)…o support the jury’s verdict of guilty of sexual battery. We also find no error by the trial court in concluding, after a specific hearing on the matter, that certain out of court statements by the child victim were admissible. See Poukner v. State, 556 So. 2d 1231 (Fla. 2d DCA 1990). GLICKSTEIN, C.J., and ANSTEAD and LETTS, JJ., concur.…
Authorities Cited
- Glendening v. State, 536 So. 2d 212 (Fla. 1988)
- Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988)