BIENVENIDO ESCOTO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Escoto was convicted of two counts of sexual battery of a child under twelve and sentenced to two consecutive life sentences. The appellate court reversed and remanded for a new trial because the trial court improperly admitted hearsay testimony from a pediatrician recounting the child victim's out-of-court statements about the sexual abuse without compliance with the required statutory exception for child hearsay.
The trial court erred in admitting the hearsay testimony. Statements by a child victim identifying the perpetrator of sexual battery, made to a physician, are not admissible under the medical diagnosis or treatment exception and can only be admitted pursuant to section 90.803(23) and its required safeguards. The error was not harmless because the case turned on Escoto's word against the child's.
[1] Statements made by a child victim identifying the perpetrator of sexual battery to a physician are not admissible under the hearsay exception for statements made for the…
[2] Statements of a child victim identifying the perpetrator of sexual battery made to a physician can only be admitted pursuant to the safeguards and procedures outlined in…
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Join FLexlaw to unlock all legal intelligence“Clearly Dr. Kesler's repetition of the child's out-of-court statements was hearsay.”
Establishes the court's factual determination that the challenged testimony constituted inadmissible hearsay
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Join FLexlaw to unlock all legal intelligenceSexual batteries allegedly occurred between January 1988 and April 1989 when the victim was four and five years old. In 1991, the child disclosed the …
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W. SHARP, Judge.
Escoto appeals from his conviction of two counts of sexual battery of a child under twelve years of age.1 He was sentenced to two consecutive life terms, each carrying a minimum mandatory sentence of twenty-five years. Escoto argues he is entitled to a new trial because the trial court improperly allowed a state witness (Dr. Kesler) to testify that the child victim told him Escoto sexually battered her on numerous occasions while she was being “baby-sat” by Escoto’s wife. The state made no effort to have the victim’s statements to Dr. Kesler admitted pursuant to section 90.803(23). We reverse.
In this ease, the sexual batteries allegedly took place between January 1988 and April 1989 when the victim was four and five years old. In 1991, the child told her mother about the abuse, after the family was no longer using Eseoto’s wife as a baby-sitter. Dr. Kesler is a pediatrician/consultant member of the child protection team, who was called upon to examine the child, after her mother reported the suspected abuse to the Department of Health and Rehabilitative Services.
Dr. Kesler testified as to the results of his physical examination of the child, but he also testified what the child said to him regarding Escoto and the sexual abuse.2 Defense counsel objected to Dr. Kesler’s testimony about the “history” given him by the child on the ground it was hearsay. The trial court overruled the objection, and allowed the testimony to be presented at trial. Clearly Dr. Kesler’s repetition of the child’s out-of-court statements was hearsay.3
The state asserts that Dr. Kesler’s testimony can be admitted under another hearsay exception, as a statement made for the purpose of medical diagnosis or treatment. § 90.803(4), Fla.Stat. (1987). The Florida Supreme Court has recently rejected that view. In State v. Jones, 625 So. 2d 821 (Fla.1993), the court held that statements of a child victim identifying the perpetrator of sexual battery, made to a physician, are not pertinent to diagnosis or treatment and they can only be admitted pursuant to the safeguards and procedures outlined in section 90.803(23).
In the Jones case, the court did not reverse for a new trial because it concluded the hearsay statement could be admitted under still another hearsay exception, a prior consistent statement by the child to rebut a charge of recent fabrication and improper influence. § 90.801(2)(b), Fla.Stat. (1987). However, there was no recent fabrication charge put forward by the defense in this case. We cannot say the error in this case was harmless, since there was only Escoto’s word against the child’s. See T.S. v. State Compare A.M. v. State, 574 So. 2d 1185 (Fla. 3d DCA 1991).
REVERSED and REMANDED for new trial.
HARRIS, C.J., and PETERSON, J., concur. . § 794.011(2), Fla.Stat. (1989).
. Kesler testified as follows:
[T]he child did tell me this happened on a number of occasions ... had been taken into the back room at the babysitter’s home, and that he put his "Tee-Tee" which she described as a term for penis, between her legs. And, the child did state to us that white stuff, material had come out of his tee-tee, and it was all over her. And the child stated to us that it happened on numerous occasions. And that on one incident the babysitter’s wife had walked in on these events but did not do anything about that.
The child did tell us that she had brought these facts known to the Mom, but not, something had not been done immediately about those events.
. See T.S. v. State, 623 So. 2d 603 (Fla. 2d DCA 1993).
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Hitchcock v. State, 636 So. 2d 572 (Fla. 4th DCA 1994)…show the truth of the matter asserted. The State points out that Bourg did not comment on whether she believed that the allegations were true. In light of Florida [*574] case law explained below, this argument is not persuasive. In Escoto v. State, 624 So. 2d 836 (Fla. 5th DCA 1993), the Fifth District reversed Esco-to’s conviction for sexual battery of a child because the trial court erred in admitting a physician’s testimony concerning the victim’s allegations. The court reasoned that “[c]learly Dr. Kesler…
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Valerie and Russell Hammond v. Sharon and John Mulligan, Sr., 667 So. 2d 854 (Fla. 5th DCA 1996)…ell was inadmissible hearsay not subject to any exception. See Hill v. State, 549 So. 2d 179, 181 (Fla.1989); Minnis v. State, 645 So. 2d 160, 161 (Fla. 4th DCA 1994); Hitchcock v. State, 636 So. 2d 572, 573-574 (Fla. 4th DCA 1994); Escoto v. State, 624 So. 2d 836, 837 (Fla. 5th DCA 1993); Hall v. State, 622 So. 2d 1132 (Fla. 2d DCA 1993). See also § 90.801(1)(c), Fla.Stat. (1993); Peterka v. State, 640 So. 2d 59, 68 (Fla.1994), cert. den., — U.S. -, 115 S.Ct. 940, 130 L.Ed.2d 884 (1995) (hearsay is a stateme…
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Schroeder v. State, 715 So. 2d 331 (Fla. 5th DCA 1998)…d in admitting this testimony. See State v. Jones, 625 So. 2d 821, 826 (Fla. 1993) (holding that a child’s statements to a medical provider as to the identity of the child’s abuser are inadmissible under section 90.803(4)); see also Escoto v. State, 624 So. 2d 836, 837 (Fla. 5th DCA 1993). The record in the instant case further establishes that the trial court’s error in admitting Johnson’s testimony contributed to the guilty verdict entered in this case; therefore, the improper admission of this testimony c…
Authorities Cited
- State v. Jones, 625 So. 2d 821 (Fla. 1993)
- A.M. v. State, 574 So. 2d 1185 (Fla. 3d DCA 1991)
- T.S. v. State, 623 So. 2d 603 (Fla. 2d DCA 1993)