FRANCISCO JAVIER HERRERA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed convictions for capital sexual battery on a child, rejecting the defendant's claim that qualifying the child victim as a competent witness in the jury's presence constituted fundamental error.
Qualifying a child witness as competent in the presence of the jury does not constitute fundamental error and does not improperly endorse the witness's credibility.
[1] A trial court does not commit fundamental error by qualifying a child witness as competent in the presence of the jury, as such qualification does not constitute an impro…
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Join FLexlaw to unlock all legal intelligenceFrancisco Javier Herrera was convicted of seven counts of capital sexual battery on a child under twelve years of age and two counts of committing a l…
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CAMPBELL, Acting Chief Judge.
Appellant, Francisco Javier Herrera, challenges his convictions and sentences for seven counts of capital sexual battery on a child under twelve years of age and two counts of committing a lewd act on a child. We affirm.
While appellant raises several issues in this appeal, he primarily alleges that the trial judge committed fundamental error by qualifying the child victim as a competent witness in the presence of the jury. Appellant equates the judge’s competency qualification of the child with an improper endorsement of her credibility. We disagree. Prior to the beginning of the trial, the trial judge was asked by the prosecutor if he planned to qualify the child in the presence of or outside the presence of the jury. The trial judge responded that it was his preference and practice to do so in the presence of the jury. Appellant’s able trial counsel raised no objection to the proposed procedure at that time or during the qualifying process. Neither were any objections raised to any of the qualifying questions. We find no authority that directs the competency qualification of a child witness take place outside the presence of the jury. We find no error in the procedures employed and certainly none that rise to the level of fundamental error. Appellant’s convictions and sentences are affirmed.
HALL and THREADGILL, JJ., concur.
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