JAMES L. BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that an uncorroborated out-of-court statement, even if admitted under a hearsay exception, is insufficient as a matter of law to sustain a conviction.
The defendant was convicted of sexual battery based solely on an unsworn videotaped statement of the child victim, which was inconsistent with the chi…
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WOLF, Judge.
James Bell appeals from his conviction and sentence for two counts of sexual battery. The error alleged by the defendant was the denial by the trial court of the defendant’s motion for a judgment of acquittal. Because we agree that this was error, and because we find insufficient evidence to sustain a conviction, we reverse the conviction and order that the defendant be discharged.
The defendant was charged under section 794.011(2), Florida Statutes (1989), with two counts of sexual battery, to wit, oral union between his mouth and his grandson’s penis. An unsworn videotaped statement of the child was the sole evidence presented of the alleged incident. At trial, the child testified that his grandfather touched his penis, but when he was asked several times if his grandfather had ever done anything else to his penis, the boy said no. The jury convicted the defendant.
The law in this state is that uncorroborated hearsay statements cannot be used as the sole evidence to convict. State v. Moore, 485 So. 2d 1279 (Fla.1986). This rule applies to statements admitted under section 90.803(23), Florida Statutes. See Jaggers v. State, 536 So. 2d 321 (Fla. 2nd DCA 1988), and Williams v. State, 560 So. 2d 1304 (Fla. 1st DCA 1990) (prior, un-sworn, uncorroborated statements without more are simply insufficient as a matter of law to sustain a conviction).
In this case, there was no corroboration of the out-of-court statement. Although the boy had made statements to his mother and to an HRS worker, these statements were excluded by the trial judge. Because the only evidence presented by the state was the prior, unsworn, inconsistent, and uncorroborated statement, the state did not meet its burden of proving the elements of the crime beyond a reasonable doubt, and a judgment of acquittal should have been granted. We have no choice but to reverse the conviction of the defendant.
SMITH and WIGGINTON, JJ., concur.
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Bryant Williams v. State, 714 So. 2d 462 (Fla. 3d DCA 1997)…N.W. 2d 783, 789 (1989). .In addition to Green, the defendant relies on Brantley v. State, 692 So. 2d 282 (Fla. 1st DCA 1997); L.E.W. v. State, 616 So. 2d 613 (Fla. 5th DCA 1993); Ticknor v. State, 595 So. 2d 109 (Fla. 2d DCA 1992); Bell v. State, 569 So. 2d 1322 (Fla. 1st DCA 1990); Williams v. State, 560 So. 2d [*466] 1304 (Fla. 1st DCA 1990); and Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988). All of these cases involve the child victim hearsay exception. The only case argued by the defendant on rehe…
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Ready v. State, 636 So. 2d 67 (Fla. 2d DCA 1994)…penetration is sufficient. J.W.C. v. State, 573 So. 2d 1064 (Fla. 5th DCA 1991). However, uncorroborated hearsay statements cannot be used as the sole evidence to prove penetration. Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988); Bell v. State, 569 So. 2d 1322 (Fla. 1st DCA 1990). In the instant case, there was sufficient evidence to establish that appellant touched the victim’s vagina including the child victim’s testimony that appellant touched her vagina. However, the only evidence put forward by the…
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Bell v. Bell, 642 So. 2d 1173 (Fla. 1st DCA 1994)…f the final judgment should be corrected upon remand. The final judgment is otherwise affirmed. BARFIELD, J., concurs. WOLF, J., dissents with written opinion. . The appellant's sexual battery conviction was reversed by this court. Bell v. State, 569 So. 2d 1322 (Fla. 1st DCA 1990), rev. denied, 581 So. 2d 1310 (Fla.1991). Shortly after he was released, however, the appellant was arrested for molesting a thirteen year old child. He was convicted and sentenced to fifty years as a habitual violent felony offe…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988)
- THE Florida BAR v. Greene, 485 So. 2d 1279 (Fla. 1986)
- Williams v. State, 560 So. 2d 1304 (Fla. 1st DCA 1990)