CRISTOPHER ALEXIS TRINIDAD CRUZ

v.

STATE OF FLORIDA

SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

Case No. 6D2024-2198 Lower Tribunal No. 22-CF-000726

CRISTOPHER ALEXIS TRINIDAD CRUZ, Appellant,

v.

STATE OF FLORIDA, Appellee.

Appeal from the Circuit Court for Lee County. Nicholas Thompson, Judge.

September 4, 2026

WOZNIAK, J.

Cristopher Alexis Trinidad Cruz appeals the judgment and sentence imposed following the return of a jury verdict finding him guilty of one count of lewd and lascivious molestation of a victim over the age of twelve but less than sixteen years of age and one count of child abuse for acts committed on N.R.¹ He argues, and we

agree, that the erroneous admission of a text message was harmful error under the facts of this case and requires reversal.²

Several days after N.R. (Cruz's sister-in-law) came forward with her allegations of Cruz's abuse, N.R.'s mother provided Cruz's wife with a copy of a letter purportedly written by Cruz to N.R. Cruz's wife responded to N.R.'s mother by text, referencing therein her emotional response to having read the letter. Cruz's wife's response indicated that she believed the allegations N.R. had made against Cruz and was worried that she would lose her children over them. Cruz, who denied authoring the letter, objected on hearsay grounds to the admission of a photograph of his wife's text. The State argued that the text was admissible under section 90.803(3), Florida Statutes (2022), as an exception to the hearsay rule, in particular as a statement of then-existing mental, emotional or physical condition because Cruz's wife had sent the text shortly after N.R. had reported the abuse. The trial court agreed and admitted the text. This was error.

Section 90.803 provides:

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:

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(3) Then-existing mental, emotional, or physical condition.—

(a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

1. Prove the declarant's state of mind, emotion, or physical

sensation at that time or at any other time when such state is an issue in the action.

2. Prove or explain acts of subsequent conduct of the

declarant.

This statute does not support admission of Cruz's wife's text. Her state of mind, emotional condition, or physical sensation were not issues in the action, nor was the text message used to prove or explain her subsequent conduct; thus, her text was not admissible under section 90.803(3). See Kennedy v. State, 385 So. 2d 1020, 1021-22 (Fla. 5th DCA 1980) ("Succinctly stated, the state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant at the time the statement is made if that is at issue in the case.” (emphasis added)).

The error in the admission of this text was not harmless under the facts of this case, which was purely a credibility contest. The State does not contend otherwise. Accordingly, we reverse and remand to the trial court to conduct a new trial.

REVERSED and REMANDED.

TRAVER, C.J., and SMITH, J., concur.

Jason T. Forman, of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Clara V. Murga, Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING

AND DISPOSITION THEREOF IF TIMELY FILED