HARRY FITTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Harry Fitter was convicted in a bench trial of lewd assault on a child under 14. He appealed, arguing the trial court erred in admitting hearsay testimony from the child's mother about statements the child made immediately after the incident. The appellate court affirmed, holding the mother's testimony was admissible as res gestae evidence.
The trial court did not commit reversible error. The mother's testimony regarding the child's statements was properly admitted as res gestae evidence because the statements were made by the child while in an excited state, promptly upon the mother's return, and only minutes after the defendant's departure. The child's direct testimony was independently sufficient to support the conviction.
[1] Statements made by a child victim to her mother shortly after an incident, while in an excited state and promptly upon the mother's return, are admissible as res gestae.
[2] Testimony of a child victim, who was 10 years old at the time of trial, can be sufficient to support a conviction for lewd assault.
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Join FLexlaw to unlock all legal intelligence“The testimony given at trial by the child, who was 10 years of age, was amply sufficient to support the conviction.”
Establishes that the child's direct testimony alone was sufficient to sustain conviction, making the hearsay evidence cumulative.
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Join FLexlaw to unlock all legal intelligenceFitter, an electrician, was in the victim's home to perform electrical repairs. The child's mother left to go to the market, leaving the 10-year-old g…
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The defendant below appeals his conviction in a nonjury trial, of the offense of lewd assault upon a female under the age of 14 years without intent to commit rape (§ 800.04 Fla.Stat., F.S.A.), with which he was charged by information.
Appellant contends the trial court committed reversible error by receiving, over objection, testimony of the child’s mother of statements made to her by the child following the incident. We hold that contention is without merit. The testimony given at trial by the child, who was 10 years of age, was amply sufficient to support the conviction. No useful purpose would be served by reciting the details of the occurrence as related by the girl.
The defendant was in the victim’s home to do certain electrical repair work. The mother, who was there with the child, left to go to a market, to be absent for the time necessary for that purpose. The child, who was doing housecleaning chores, remained in the house. The actions of the defendant which formed the basis for the charge against him occurred during the mother’s absence. As the mother returned the defendant was seen by her to be driving away. The mother testified that she found the child screaming, and in her testimony related the facts the child stated to her as to the occurrence. Such statements by the child, as testified to by the mother, were consistent with the facts as testified to by the child. A police officer testified that the defendant, after having been warned of his rights, voluntarily stated he had kissed the 10 year old girl and put his hands on her body. The defendant denied having done more.
The statements of the child which the mother related in her testimony were made by the child when she was in an excited state as a result of the experience, and promptly upon the mother’s return and only minutes after the defendant had departed. The trial court was eminently correct in ruling that the challenged testimony of the mother was admissible as res gestae. Gray v. State, Fla.App.1966, 184 So.2d 206; State v. Hutchison, 222 Or. 533, 353 P.2d 1047, 83 A.L.R.2d 1361; State v. Withrow, 142 W.Va. 522, 96 S.E.2d 913; 29 Am.Jur.2d, Evidence §§ 708 and 719; Anno. 19 A.L.R.2d 579, 586-588; 83 A.L.R.2d 1368, 1372. Here the child’s statements to the mother, as related in the testimony of the latter, were cumulative evidence, and were corroborative of the fuller testimony of the child.
No reversible error having been shown, the judgment is affirmed.
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Salter v. State, 500 So. 2d 184 (Fla. 1st DCA 1986)…nd and before she had an opportunity to reflect or deliberate. Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986); Jackson v. State, 419 So. 2d 394 (Fla. 4th DCA 1982); and Lyles v. State, 412 So. 2d 458 (Fla. 2d DCA 1982). Compare, Fitter v. State, 261 So. 2d 512 (Fla. 3d DCA 1972) (mother’s testimony that child’s statements were made when she was in an “excited” state of mind and that statements were made promptly upon mother’s return and only a few minutes after defendant departed rendered mother’s testimo…
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Monarca v. State, 412 So. 2d 443 (Fla. 5th DCA 1982)…occurred shortly after the crime, has been admitted under the more general res gestae exception to the hearsay rule. See, e.g., Irvin v. State, 66 So. 2d 288 (Fla.1953), cert. denied, 346 U.S. 927, 74 S.Ct. 316, 98 L.Ed. 419 (1954); Fitter v. State, 261 So. 2d 512 (Fla. 3d DCA 1972); Thomas v. State, 220 So. 2d 638 (Fla. 3d DCA 1969); Gray v. State, 184 So. 2d 206 (Fla. 2d DCA 1966). In determining whether a statement is part of the res gestae, four factors have been noted: 1) the time gap between the state…
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Carver v. State, 344 So. 2d 1328 (Fla. 1st DCA 1977)…be liberally applied to admit such declarations of young children, especially when [*1332] they corroborate the child’s testimony at trial. See Gray v. State, 184 So. 2d 206 (Fla.2d DCA 1966), cert. den., 192 So. 2d 493 (Fla.1966); Fitter v. State, 261 So. 2d 512 (Fla.3d DCA 1972); Annot., 88 A.L.R.2d 1368 (1962).…
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- Booker T. Gray v. State, 184 So. 2d 206 (Fla. 2d DCA 1966)