STATE OF FLORIDA

v.

YOUNG

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant,

v.

JAMES DEAN YOUNG,

Appellee.

No. 2D2024-0963 April², 2025

Appeal from the Circuit Court for Sarasota County; Thomas W. Krug, Judge.

James Uthmeier, Attorney General, Tallahassee, and Tayna Alexander, Assistant Attorney General, Tampa, for Appellant.

Blair Allen, Public Defender, and Andrea M. Norgard, Assistant Public Defender, Bartow, for Appellee.

PER CURIAM.

Affirmed. See State v. Tumlinson, 224 So. 3d 766 (Fla. 2d DCA 2016).

BLACK, J., Concurs. LABRIT, J., Concurs separately with an opinion in which SMITH, J., Concurs.

LABRIT, Judge, Concurring separately. Because the State conceded below that the trial court had to follow

I.

Section 92.565 replaces the traditional corpus delicti rule with a trustworthiness test.¹ State, 907 So. 2d 668, 673–74 (Fla. 2d DCA 2005). Section 92.565 reads, in relevant part, as follows: (2) In any criminal action in which the defendant is charged with a crime against a victim under . . . s[ection] 794.011 . . . the defendant's memorialized confession or admission is admissible during trial without the state having to prove a corpus delicti of the crime if the court finds in a hearing conducted outside the presence of the jury that the state is

1 Corpus delicti requires the prosecution to establish that a crime has occurred before introducing a defendant's confession or statement as evidence. See Franqui v. State, 699 So. 2d 1312, 1317 (Fla. 1997). Historically, this rule was intended to protect against wrongful convictions based solely upon false or coerced confessions. See Burks v. State, 613 So. 2d 441, 443 (Fla. 1993). However, some jurisdictions, including Florida, have adapted or eliminated the corpus delicti rule in some or all instances. See, e.g., Armstrong v. State, 502 P. 2d 440, 447 (Alaska 1972); People v. LaRosa, 293 P. 3d 567, 573–77 (Colo. 2013); State v. Hafford, 746 A. 2d 150, 174 (Conn. 2000); State v. Yoshida, 354 P. 2d 986, 990 (Haw. 1960); State v. Meyers, 799 N.W. 2d 132, 139 (Iowa 2011); State v. Dern, 362 P. 3d 566, 582–83 (Kan. 2015); State v. Zysk, 465 A. 2d 480, 483 (N.H. 1983); State v. Wilson, 248 P. 3d 315, 321 (N.M. 2010); Fontenot v. State, 881 P. 2d 69, 77–78 (Okla. Crim. App. 1994); State v. Osborne, 516 S.E. 2d 201, 204–05 (S.C. 1999); State v. Plastow, 873 N.W. 2d 222, 229 (S.D. 2015); State v. Bishop, 431 S.W. 3d 22, 57–61 (Tenn. 2014); State v. Mauchley, 67 P. 3d 477, 480 (Utah 2003).

Thus section 92.565 creates a four-step process that a trial court must undertake before admitting a defendant's statements under the statute: (1) Determine whether the charged "offense qualifies as a sexual abuse" crime. See Bradley v. State, 918 So. 2d 337, 340 (Fla. 1st DCA 2005). (2) Determine whether "the [S]tate is unable as a result of some disability on the part of the victim to prove an element of the crime." See id. (3) Determine whether "the [S]tate has proven that the defendant's confession is trustworthy." See id.

4 (4) Make "specific findings of fact on the issue of trustworthiness." See id. Each step must be satisfied before moving onto the next, and if any of the first three steps are not satisfied, the statement is not admissible under the statute.² As one might guess, the meat of the four-step process is found in step three, which requires the trial court to determine whether the State has proven that the defendant's confession is trustworthy. The statute tells us how the trial court should go about the task—it must determine whether the State has (1) proven by a preponderance of the evidence (2) that sufficient corroborating evidence exists (3) which tends to establish the trustworthiness of the defendant's statement. § 92.565(3). If all three elements of 92.565(3) are met, step three is satisfied. In making the step three determination, the statute allows the trial court to consider hearsay and "all relevant corroborating evidence, including the defendant's statements." § 92.565(3). That is what the language of the statute provides. Yet, the majority in Tumlinson gleaned quite a bit more than that from the statute's plain text.

II.

A.

In Tumlinson, 224 So. 3d at 767, Kenneth Tumlinson was charged with lewd or lascivious molestation of a child under twelve years old. The case arose after Mr. Tumlinson's roommates alerted law enforcement to entries in Mr. Tumlinson's journal, which described inappropriate contact with a child, J.T. Id. Law enforcement interviewed Mr. Tumlinson, who gave oral and written statements corroborating some of

2 The trial court's determination in any step is subject to appellate review. See Bradley, 918 So. 2d at 340.

On review, this court affirmed. Id. at 771. The majority acknowledged that section 92.565 eliminated the corpus delicti rule and replaced it with the trustworthiness test for certain types of cases. Id. at 769–70. The majority also recognized that this test requires corroborating evidence that tends to establish the trustworthiness of the defendant's confession. Id. However, the majority held that Mr. Tumlinson's journal entries, as well as his oral and written statements to law enforcement, lacked corroboration independent of the statements themselves and thus were inadmissible. Id. In his dissent, Judge Lucas opined that section 92.565 permits the confession itself to provide part of the corroboration if it includes specific and reliable details. Id. at 775 (Lucas, J., dissenting). Judge Lucas considered the content of the journal entries, Mr. Tumlinson's statement to law enforcement, and other surrounding circumstances and concluded that "[u]nder section 92.565, the State should have been permitted to present these admissible confessions against Mr. Tumlinson in a criminal case." Id. at 775–76. In my view, Judge Lucas was correct.

B.

Nevertheless, Tumlinson is the law of this district, which proved problematic for the State in the proceedings below. As described further in section IV, Mr. Young was charged under section 794.011(1)(h), Florida Statutes (2012), with one count of sexual battery on a child less than twelve years of age while being eighteen years of age or older after he made a spontaneous statement that he had inserted his finger into

Early in the proceedings, Mr. Young moved for a hearing pursuant to section 92.565 and asked the court to exclude all his statements. The trial court held the hearing and, at the close of the evidence, asked the State whether it had to follow Tumlinson.³ Although the State believed

3 Throughout the proceedings below, the State, the defense, and the trial court articulated varying interpretations of the holdings of Geiger, 907 So. 2d 668, and Tumlinson, 224 So. 3d 766. At the beginning of the hearing on Mr. Young's motion, defense counsel maintained that Geiger and Tumlinson require the State to produce independent evidence that corroborates a defendant's statements before those statements are admissible under section 92.565, telling the trial court that "a confession cannot corroborate itself[,] meaning the trial court cannot rely exclusively on the content of the [d]efendant's statements and the circumstances under which they were made to form an opinion about their trustworthiness." Later in the hearing, defense counsel stated that "[i]ndependent evidence that a crime actually happened" was required before a defendant's statement could be admitted under section 92.565. The State told the trial court that Geiger and Tumlinson require "independent proof of the crime before the statements . . . become admissible." Similarly, the trial court construed Tumlinson as only requiring "corroborative, independent fact[s] unrelated to the statements" but in nearly the same breath agreed that "[i]ndependent evidence that a crime actually happened" was necessary under section 92.565. It seems that the scope of those cases' holdings was a point of confusion for everyone involved. This court in Geiger stated that "there must be some evidence that tends to establish the type of harm for which the defendant is being criminally charged." Geiger, 907 So. 2d at 675; see also Tumlinson, 224 So. 3d at 770 (quoting Geiger for the same proposition). However, it appears that the Geiger court may not have been referring to independent evidence that a crime had occurred—as would be necessary under the traditional corpus delicti standard—but rather was describing what kind of independent evidence would corroborate a defendant's statement. See Geiger, 907 So. 2d at 675–76 (discussing United States v. Lee, 315 F. Supp. 2d 1038 (D. Ariz. 2003), as a case in which the

Our hands being thus tied, we must affirm, having no authority to overrule another panel of this court even if we were so inclined. Cf. In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En banc, Fla. Rules of App. Proc., 416 So. 2d 1127, 1128 (Fla. 1982) ("[A] threejudge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law . . . ."); Wood v. Fraser, 677 So. 2d 15, 18 (Fla. 2d DCA 1996) ("[A]bsent an en banc opinion expressly receding from a point of law announced in previous opinions of this defendant's statements would have been sufficiently corroborated by independent evidence).

III.

Unencumbered by Tumlinson, and with the right opportunity, I would give section 92.565 a proper textual analysis that captures the statute's apparent purpose—to balance the need for trustworthiness against a victim's limitations. To that end, I offer two observations. First, by my reading of the statute, there is no prohibition upon the trial court considering whether the statement to be admitted is selfcorroborating. Cf. Tumlinson, 224 So. 3d at 770 ("[A] confession cannot corroborate itself . . . ." (quoting Hernandez v. State, 946 So. 2d 1270, 1276 (Fla. 2d DCA 2007))). To the contrary, the statute permits the trial court to "consider all relevant corroborating evidence, including the defendant's statements." § 92.565(3) (emphasis added). Second, the statute by its own terms suggests that not every statement that can be characterized as confessional is subject to the corroboration requirement found in the third step. Rather, it is only the defendant's "memorialized confession or admission" that must be corroborated by evidence that tends to show its trustworthiness.

A.

Turning to my first observation, the plain language of section 92.565(3) shows that the statute permits a trial court to consider whether a defendant's statements are self-corroborating. The text allows

As further discussed below, the plain language of section 92.565(2) shows that only a "memorialized confession or admission" is subject to

B.

Turning to my second observation, the phrase "memorialized confession or admission" in subsection (2) sets a clear standard for what type of confession or admission allows the State to bypass the corpus delicti requirement—one documented in some tangible form. Cf. Black's Law Dictionary 1279 (7th ed. 1999) (defining "record" as "[a] documentary account of past events, usu[ally] designed to memorialize those events; information that is inscribed on a tangible medium or that, having been stored in an electronic or other medium, is retrievable in

Additional support for this construction of section 92.565(2) is found by examining section 560.125(8), Florida Statutes (2023), which eliminated the necessity for corpus delicti in money laundering cases; section 560.125(8) is the only other Florida statute besides section 92.565 to remove the corpus delicti requirement in certain circumstances. Section 560.125(8) reads: In any prosecution brought pursuant to this section, the common law corpus delicti rule does not apply. The defendant's confession or admission is admissible during trial without the state having to prove the corpus delicti if the court finds in a hearing conducted outside the presence of the jury that the defendant's confession or admission is trustworthy. Before the court admits the defendant's confession or admission, the state must prove by a preponderance of the evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement by the defendant. Hearsay evidence is admissible during the presentation of evidence at

C.

The Tumlinson majority read into section 92.565 restrictions that simply do not exist in the statutory text. In contrast, the interpretation I have offered adds nothing extraneous to the statute and is faithful to the statute's apparent purpose—striking a fair balance between safeguarding trustworthiness on the one hand, and acknowledging the challenges presented by the limitations of certain victims on the other.

13

IV.

Turning once more to the case at bar, the facts highlight how the plain language of section 92.565 provides a straightforward path to evaluating the admissibility of confessions. And proper application of the statute's text leaves no room to doubt that all of Mr. Young's memorialized confession was admissible without the State first having to prove corpus delicti. According to the State's evidence, Mr. Young made five admissions to having sexually battered the victim, C.F.—one of which was a "memorialized confession or admission" and the other four of which were statements confessional in nature only. Mr. Young's first admission occurred on May³, 2023, when Mr. Young ran into C.F.'s mother at a convenience store. While making small talk, Mr. Young told C.F.'s mother that he needed to tell her something. He then told her that he had played with, and then inserted his finger into, C.F.'s anus. When C.F.'s mother became upset, Mr. Young showed her his fingertip, saying that he only inserted a bit of his finger. At that point, C.F.'s mother became sick, began crying, and drove away. The next admission occurred four days later, on May⁷, when C.F.'s father picked up C.F. from a friend's house. They were driving toward the highway when C.F.'s father saw Mr. Young riding a bike and stopped to ask him about what he had said to C.F.'s mother. Mr. Young started the conversation by remarking that C.F. was "looking good." Mr. Young then proceeded to explain that he had rubbed, and inserted his finger into, C.F.'s anus. A verbal altercation began, at which point Mr. Young shoved C.F.'s father, began to run, and then tripped and fell.

The next admission occurred mere moments later, as Deputy Erick Flanagan happened to observe the altercation between Mr. Young and

The fourth admission—the one which was a "memorialized confession or admission" and therefore subject to the trustworthiness test imposed by section 92.565—occurred that same day, when Mr. Young, post-Miranda,4 explained to Detective Austin Pacher during a taped interview that he lived with C.F.'s family in 2012. Mr. Young acknowledged that he had inserted his finger into C.F.'s anus but "heard something" and stopped. Mr. Young was adamant that it had only been the tip of his finger and showed Detective Pacher his finger, indicating a length of about one-half inch from the tip.

The final admission occurred that evening. At the time of his jail booking, Mr. Young asked why he was being arrested. Upon receiving an answer, Mr. Young stated that nothing had really happened ten years ago and he had simply poked a friend's son's rectum with his fingertip. In line with the plain text of section 92.565, the trial court considered how Mr. Young's statements corroborated each other and themselves through their consistency and spontaneity and also considered the circumstances surrounding the statements. In its written order, the trial court noted: The statements made by [Mr. Young] were consistent to multiple people, from [C.F.'s] parents to law enforcement. [Mr. Young] stated on multiple occasions that he inserted a

4 Miranda v. Arizona, 384 U.S. 436 (1966).

. . . . [Mr. Young] tells [C.F.'s father] yeah, I stuck my finger in your son's butt. Like it's not a big deal.

. . . . [Mr. Young] tells [Deputy Flanagan] yeah, I stuck my finger in a little boy's butt. Like it's something everybody does.

The trial court stated that Mr. Young's statements were "a hundred percent trustworthy," a finding which is supported by competent and substantial evidence. See Geiger, 907 So. 2d at 676 (applying the competent and substantial evidence standard to the question of whether the State had shown that Mr. Geiger's statements were trustworthy). That being so, the trial court's findings on the matter satisfied steps three and four of the four-step process required by section 92.565. Accordingly, the trial court should have ruled that Mr. Young's memorialized statement was admissible under the statute. Yet, through a misguided and extratextual interpretation of section 92.565 to which the trial court was bound, it could not do so. If that extratextual

V.

I read section 92.565's language to be clear and unambiguous. It establishes specific requirements for admitting memorialized confessions or admissions and provides courts with guidance on assessing trustworthiness through corroborating evidence. By imposing additional requirements not found in the text, Tumlinson disrupted this statutory framework. This court's role is not to rewrite the statute but to interpret and apply it as written. I have done so here, and I encourage this court to reexamine and recede from Tumlinson at the first opportunity. SMITH, J., concurs.

Opinion subject to revision prior to official publication.