BOBBY LEE AKIEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2010-08-11
No. 4D09-1224
STEVENSON and DAMOORGIAN, JJ., concur.
44 So. 3d 152 Florida District Court of Appeal, Fourth District (2010) Caution
Cited by 12 cases

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Synopsis

Bobby Lee Akien appealed his conviction for rape, sexual battery, and sexual activity with a minor, challenging the trial court's admission of the victim's 911 call as an excited utterance. The Fourth District Court of Appeal affirmed the conviction, holding that the trial court did not abuse its discretion in admitting the statement under the excited utterance exception to the hearsay rule.


Holding

The trial court did not abuse its discretion in admitting the 911 call as an excited utterance. The time interval, age of the declarant, physical and mental condition of the victim, and the extremely startling nature of the event support admission under the excited utterance exception.


Headnotes

[1] A trial court's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion, though discretion is constrained by rules of evidence and sta…

[2] A statement relating to a startling event is admissible as an excited utterance if made while the declarant was under the stress of excitement caused by the event, before…

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Key Quotes

“The exact amount of time between the event and the statement which will justify a finding that the declarant engaged in "reflective thought" will depend on the specific facts of each case and may vary substantially between cases.”

Establishes that the time interval for excited utterance exception is flexible and fact-dependent, not rigid

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Facts & Procedural History

A 17-year-old victim was awakened by an assailant who raped her for 30-45 minutes after threatening to kill her and covering her face so she could not…

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Opinion of the Court
LEVINE, J.

LEVINE, J.

The issue presented is whether the trial court erred by admitting the victim’s telephone call to 911 as an excited utterance. We find the trial court did not err, and we affirm the conviction and sentence imposed.

The victim, who at the time was seventeen years old, went to sleep only to be awoken some time later by a man with his hand around her neck. The assailant threatened to kill her if she did not stop fighting and increased pressure to her neck. A blanket was placed around the victim’s face so she was unable to see, and she was unable to recognize the man’s voice. The man removed her clothes, forced his penis into her vagina and raped her for thirty to forty-five minutes.

After raping the victim, the man ordered the victim to take a shower. He then took a picture of the victim nude on his mobile phone and ordered the victim to write a note, with her signature, stating that the sex was consensual. Before departing, the man removed the bed sheets, took the victim’s keys, and asked for her mobile phone number. He told the victim that he would hurt her mother or grandmother if she called the police.

Roughly five minutes after the attacker left, the victim telephoned her mother. The victim related the events to her mother, and the mother convinced the victim to call the police and report the assault.

*154The victim suspected appellant as her attacker, because she could smell cigarette smoke on her assailant, and the attacker said he would leave her keys on her washing machine when he left her home. The victim believed only a neighbor would know that the washer and dryer were located outside the unit. Finally, appellant had openly flirted with the victim and in the past asked the victim to perform sexual favors in exchange for an automobile.

The victim met appellant when she was five years old. The victim described appellant as a kind man who would look after the victim’s grandmother. A forensic analyst testified at the trial that appellant was the only source of the semen found in the victim’s vagina, as well as the source of the other DNA evidence found on the victim’s neck. Appellant was found guilty on the charge of burglary with an assault or battery, sexual battery, and sexual activity with a minor.

Appellant contends the trial court erred in allowing the admission of the victim’s call to 911 to report the assault. As recently noted by the Florida Supreme Court,

A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. Alston v. State, 723 So.2d 148, 156 (Fla.1998). The trial court’s discretion is constrained, however, by the application of the rules of evidence, Johnston v. State, 868 So.2d 271, 278 (Fla.2003), and by the principles of stare decisis. McDuffie v. State, 970 So.2d 312, 326 (Fla.2007).

Hayward v. State, 24 So.3d 17, 29 (Fla.2009). At trial, appellant objected to the admission of the 911 call, arguing that there had been too much time from the attack to the call such that the victim could have engaged in reflective thought. The trial court overruled the objection.

The “excited utterance” exception to the hearsay rule allows the admission of a hearsay statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” § 90.803(2), Fla. Stat. “[Tjhere must be “an event startling enough to cause nervous excitement,” “the statement must have been made before there was time to contrive or misrepresent,” and “the statement must be made while the person is under the stress of excitement caused by the event.” State v. Jano, 524 So.2d 660, 661 (Fla.1988). The court will look to the interval of time between the startling event and the making of the statement. Id. at 662; Bienaime v. State, 45 So.3d 804, 805-06 (Fla. 4th DCA 2010).

The exact amount of time between the event and the statement which will justify a finding that the declarant engaged in “reflective thought” will depend on the specific facts of each case and may vary substantially between cases. See, e.g., Henyard v. State, 689 So.2d 239 (Fla.1996); Bienaime, 45 So.3d at 805-06. The Florida Supreme Court has held that the “[factors that the trial judge can consider in determining whether the necessary state of stress or excitement is present are the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements.” Hayward, 24 So.3d at 29 (quoting Hudson v. State, 992 So.2d 96, 108 (Fla.2008)).

Where the startling event was a shooting, the Florida Supreme Court has found that an interval of eight to ten minutes from the shooting to the time of the statement was properly admitted as an excited utterance. Rogers v. State, 660 So.2d 237 (Fla.1995). In Rogers, the court found although there was “conceivably” time to engage in reflective thought, the record *155indicated the declarant was “hysterical,” and after the declarant called the police, she collapsed. After being revived, she drank a soda and made her statement. The declarant remained “very excited” and never appeared “relaxed or calm as she recounted the evening’s event.” Id. at 240.

In this case, the declarant is a seventeen-year-old girl who called the 911 operator soon after being raped for thirty to forty-five minutes. After this extremely “startling” event, the victim spoke to her mother, who, in turn, convinced the victim to call 911. While the victim may have had an opportunity to engage in reflective thought, we cannot say that the trial court abused its discretion by allowing the introduction of the 911 tape. The record does not clearly refute the contention that the victim spoke to the 911 operator “under the stress of excitement caused by” her rape. As “reasonable men could differ as to the propriety” of the admission of the phone call, we affirm the trial court’s ruling. Canakaris v. Canakaris, 382 So.2d 1197,1203 (Fla.1980).

Finally, even if we found that the admission of the tape to be in error, we find the error to be harmless where the state has proven “beyond a reasonable doubt there is no reasonable possibility that the error contributed to the conviction.” Arrieta-Rolon v. State, 36 So.3d 124, 127 (Fla. 4th DCA 2010); see also Ventura v. State, 29 So.3d 1086 (Fla.2010) (rejecting an overwhelming evidence test for harmless error). The tape merely corroborated the victim’s own trial testimony regarding the attack.

As to the other issues raised, we find that the trial court’s introduction of the victim’s prior consistent statement was a sound exercise of its discretion that does not merit further discussion. Further, the trial court’s consideration of other pending criminal charges was entirely permissible. For the foregoing reasons, we affirm the convictions and sentence of the appellant.

Affirmed.

STEVENSON and DAMOORGIAN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Powell v. State, 99 So. 3d 570 (Fla. 1st DCA 2012)
    …l v. State, 847 So. 2d 558 (Fla. 3d DCA 2003) (admitting a statement made 50 minutes after an attempted kidnapping); Edmond v. State, 559 So. 2d 85 (Fla. 3d DCA 1990) (admitting a statement made two or three hours after the offense); Akien v. State, 44 So. 3d 152 (Fla. 4th DCA 2010) (admitting a statement made by a rape victim five minutes after she had been raped). As the supreme court explained in Jano, “[i]t would be an exceptional case in which a statement made more than several hours after the event cou…
  • Roop v. State, 228 So. 3d 633 (Fla. 2d DCA 2017)
    …testimony at trial and was examined in detail on direct and cross about that identification. As substantive evidence of Mr. Roop’s identity as the perpetrator, the 911 recording was not accretive in any way that mattered. See, e.g., Aiken v. State, 44 So. 3d 152, 155 (Fla. 4th DCA 2010) (explaining that even if rape victim’s identification of assailant to 911 was improperly admitted as an excited utterance, it was harmless where it “merely corroborated” her trial testimony). Superficially, the second possi…
  • Schluck v. State, 329 So. 3d 231 (Fla. 1st DCA 2021)
    …t speaking to a third party before calling the police does not necessarily prevent statements from being excited utterances. This is true, but those cases do not apply here. Akien v. State does not describe the victim’s emotional state on the phone. 44 So. 3d 152 (Fla. 4th DCA 2010). Evans v. State does, and in that case, the victim was “in shock . . . stunned and extremely concerned that she was still in danger.” 248 So. 3d 155, 159 (Fla. 4th DCA 2018). Additionally, Evans explicitly stated that if time has…
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