YAKOB DENNIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Yakob Dennis appealed his convictions for attempted sexual battery on a child under 12 and capital sexual battery, challenging the trial court's admission of a redacted videotaped deposition showing the child's prior consistent statements. The appellate court affirmed, holding that the videotaped deposition was admissible both for impeachment and substantive purposes under Florida law once the child recanted her testimony at trial.
The trial court did not err in admitting the videotaped deposition. The deposition was admissible under Florida Statute § 90.801(2)(a) as both impeachment and substantive evidence because the child testified at trial, was subject to cross-examination, and the prior statement was inconsistent with her trial testimony and given under oath at a deposition. Any error was harmless due to corroborating evidence including Dennis's confession and medical evidence of gonorrhea.
[1] A prior inconsistent statement made by a witness under oath during a deposition is admissible as substantive evidence when the witness testifies at trial and is subject t…
[2] A prior inconsistent statement made by a witness under oath during a deposition is admissible for impeachment purposes when the witness testifies at trial and is subject…
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Join FLexlaw to unlock all legal intelligence“A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: (a) Inconsistent with [the declarant's] testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition”
Establishes the statutory basis for admitting prior inconsistent statements as non-hearsay evidence when the declarant is subject to cross-examination at trial.
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Join FLexlaw to unlock all legal intelligenceDennis was charged with attempted sexual battery and capital sexual battery against a minor child. The victim gave a videotaped deposition under oath …
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THOMPSON, Judge.
Yakob Dennis appeals his conviction and sentence for attempted sexual battery on a child under 12 years of age1 in count I and capital sexual battery2 in count II. He was sentenced to consecutive terms of life, including a 25-year mandatory minimum term, and 17 years in prison. We affirm his conviction and his sentence.
The only issue on appeal is whether the trial court erred by allowing a redacted prior inconsistent videotaped deposition of the minor child to be shown to the jury over the objection of Dennis. Prior to the trial, the minor child gave a videotaped deposition. She was under oath and examined and cross-examined by the attorneys. In the videotaped deposition, the child said that Dennis had touched her in her private area with his private area. At trial, the child appeared in person and testified before the jury. The child appeared distraught and recanted her entire statement and said that Dennis never touched her. The state used the redacted videotaped deposition to impeach the child’s in court testimony. The state was permitted to play the videotaped deposition for the jury, excising only those portions referring to misconduct alleged to have occurred prior to the crimes charged in the information.
The video tape testimony was admissible for impeachment and substantive purposes because the minor child testified in court. See § 90.801(2)(a), Fla.Stat. (1991). Section 90.801(2)(a) reads in pertinent part:
(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to erossexamination concerning the statement and the statement is:
(a) Inconsistent with [the declarant’s] testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (emphasis added).
§ 90.801(2)(a), Fla.Stat. (1991); see also Moore v. State, 452 So. 2d 559 (Fla.1984) (evidence admitted pursuant to this statute is not hearsay and may be admitted into evidence not only for impeachment purposes, but also as substantive evidence on material issues of fact). Once the child recanted her testimony, the state had the right to impeach her. The harmless error analysis applies to this case. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Dennis confessed to a police officer that he rubbed his penis against the victim’s vaginal area. This confession was admitted as evidence. At the trial, Dennis took the stand to testify in his own behalf and tried to explain why he confessed. He told the jury that he confessed so he could receive the death penalty. He also admitted that he had contracted gonorrhea in the past. This admission was very important because the victim contracted gonorrhea during the same time that Dennis was her babysitter. There was corroborating evidence to convict Dennis without the videotape used as impeachment.
A review of the record demonstrates that Dennis has not shown that the trial court abused its discretion in admitting the videotaped deposition. See Hansen v. State, 585 So. 2d 1056 (Fla. 1st DCA), review denied, 593 So. 2d 1052 (Fla.1991).
AFFIRMED.
HARRIS, C.J., and PETERSON, J., concur. . § 794.011(2), Fla.Stat. (1991).
. § 794.011(2), Fla.Stat. (1991).
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State v. Green, 667 So. 2d 756 (Fla. 1995)…kson v. State, 453 So. 2d 456 (Fla. 4th DCA 1984) (deposition taken under 3.220 and not 3.190 not admissible under 90.804(2)(a)). We recognize that two lower courts have issued decisions that could be construed to the contrary. See Dennis v. State, 649 So. 2d 263 (Fla. 5th DCA 1994) (videotaped deposition of child was properly admitted as substantive evidence under section 90.801(2)(a) after child appeared at trial and recanted prior statements), dismissed, 666 So. 2d 142 (Fla.1995); Holmon v. State, 603 So.…
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Glee v. State, 729 So. 2d 539 (Fla. 5th DCA 1999)…PER CURIAM. AFFIRMED. See Dennis v. State, 649 So. 2d 263 (Fla. 5th DCA 1994), rev. denied, 666 So. 2d 142 (Fla.1995). COBB, GOSHORN and ANTOON, JJ., concur.…
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Eaton Corp. & Gab Robins N. Am., Inc. v. Dottie Votour, 895 So. 2d 466 (Fla. 1st DCA 2005)…ense. Upon her consideration of the remaining evidence, the JCC determined claimant was entitled to the requested benefits. Our review standard of a lower tribunal’s order admitting or excluding evidence is abuse of discretion. See Dennis v. State, 649 So. 2d 263 (Fla. 5th DCA 1994); Hansen v. State, 585 So. 2d 1056 (Fla. 1st DCA 1991). In concluding that the JCC abused her discretion by disallowing the videotapes into evidence because they could not be said to impeach claimant’s testimony, we note that the…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- THE Florida BAR v. Nuccio, 452 So. 2d 559 (Fla. 1984)
- Moore v. State, 452 So. 2d 559 (Fla. 1984)
- Jens Peter Hansen v. State, 585 So. 2d 1056 (Fla. 1st DCA 1991)