        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          JOSHUA PERRAULT,
                              Appellant,

                                    v.

                            AMANDA ENGLE,
                               Appellee.

                             No. 4D18-3458

                             [April 15, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Arthur M. Birken, Judge; L.T. Case No. 17-2051 DVCE
(58).

  Charles G. White of Charles G. White, P.A., Miami; and Maria L. Sachs,
Boca Raton, for appellant.

   Jason H. Haber of Haber Blank, LLP, Fort Lauderdale, for appellee.

CIKLIN, J.

   The parents involved in this appeal have long had a dysfunctional
relationship. Their three-year-old son alternated his time between the
mother and father. Over the years, the mother called law enforcement on
numerous occasions to lodge complaints about the father, none of which
led to any further action by the authorities. But that changed when the
mother petitioned on behalf of the son for an injunction for protection
against domestic violence. She alleged that the child made statements
indicating the father had sexually abused him. After the trial court held a
child hearsay hearing pursuant to section 90.803(23), Florida Statutes
(2017), the court admitted the statements and granted the petition. We
find there was no evidence corroborating the child hearsay statements,
and we reverse.

   In support of her petition for injunction, the mother sought to admit
statements allegedly made by the child to the mother and her parents, as
well as statements the child made to a crisis center employee while law
enforcement officers watched through a video feed. The evidence at the
child hearsay hearing revealed the following. The mother observed the
child touching his penis while watching television. She was not alarmed
and finished preparing dinner. She brought the child dinner and asked
him what he was doing. The child allegedly stated that he and the father
played a game where the father put his penis in the child’s mouth. The
mother asked the child to show her what he was describing, and the child
allegedly obliged by attempting to put his mouth on his penis. The mother
then brought her parents into the room and asked the child to repeat what
he had told her. He allegedly did so. The child was taken for a physical
examination. During the examination, he did not indicate he had been
sexually abused. The examination did not reveal any evidence of sexual
abuse.

   A detective met with the mother and child but did not question the
child. A counselor employed by a child sexual assault crisis center
interviewed the child. The child initially “denied that there was anything
that happened.”     The interviewer “kept asking [the child] different
questions,” and he eventually stated that the father put his penis in the
child’s mouth. The interviewer repeatedly referenced the video of the
interview when she was asked what was said during the interview.
Additionally, she acknowledged that her interview of the child was
submitted for peer review, and she was criticized for her interview
technique.

   An expert in psychiatry watched the videotaped interview and was
deeply critical of the way the interviewer conducted the interview. The
child was not given the opportunity to provide a narrative. Instead, the
interviewer had “an agenda” and “repeated one question fifteen times.”

   During the child hearsay hearing, the mother and her parents admitted
that before these allegations arose, they harbored feelings of animosity
toward the father.

   At the close of the hearing, the father’s attorney realized the videotaped
interview had not been admitted into evidence and asked whether the
court would “benefit” from watching it. The court responded, “How would
I know? I have no idea what’s on it.” The court declined to reopen the
evidence to watch the video.

   The trial court ruled that the statements were admissible under section
90.803(23). With respect to indicia of reliability, the court rejected any
implication of fabrication by the mother and parents. The court found that
the “alleged abuse . . . was extremely serious,” the “duration of the alleged
abuse was not clear” but “apparently occurred more than once,” the
“relationship was between a parent and child,” and that the child “is well

                                     2
able to verbally communicate.” With respect to corroborating evidence,
the court relied on the following: “[T]he child was masturbating, the child
tried to commit fellatio on himself when trying to explain what happened[,]
and the [interviewer] . . . testified that she found the child to be credible,
reliable[,] and trustworthy[.]”

    The trial court then entered an agreed order for supervised visitation.
In the time leading up to the final hearing on the merits of the petition, the
father and his son engaged in numerous supervised visits. During the
final hearing, the therapists who observed the visits testified that the child
was always eager to visit his father, and that the visits were warm,
appropriate, and positive. The father testified, denying the allegations.
The psychiatry expert reiterated his previous testimony regarding the
deficiencies in the interview of the child. He also testified that it was
normal for a young child to touch his penis. He considered 48 factors to
assess the legitimacy of the allegations of sexual abuse, and he concluded
that the father had not sexually abused the child.

   The trial court found the case was “very close,” but it found that the
incident “occurred” and it granted the petition. However, the court also
provided that “timesharing shall continue so long as the child’s therapist
states that there is no adverse impact to the child and the same is
beneficial to the child.”

   On appeal, the father argues, among other things, that the trial court
erred in admitting the child hearsay statements and in granting the
petition based on those statements. We agree. In light of our reversal, the
father’s other arguments need not be entertained.

    “Our standard in reviewing a trial court’s determination on the
reliability and admissibility of child hearsay statements under section
90.803(23) is abuse of discretion.” Platt v. State, 201 So. 3d 775, 777 (Fla.
4th DCA 2016) (quoting Rodriguez v. State, 77 So. 3d 649, 650 (Fla. 3d
DCA 2011)).

   Section 90.803(23) governs the admission of a child victim’s out-of-
court statement relating to, among other things, sexual abuse against a
child or an unlawful sexual act involving the child. Where there is no
indication that the “source of information or the method or circumstances
by which the statement is reported” is untrustworthy, such hearsay
statements are admissible where the trial court finds after a hearing that
the “time, content, and circumstances of the statement provide sufficient
safeguards of reliability,” and the child either 1) testifies or 2) is
unavailable as a witness, “provided that there is other corroborative

                                      3
evidence of the abuse or offense.” § 90.803(23)(a), Fla. Stat.

    “In making its determination [on the issue of reliability], the court may
consider the mental and physical age and maturity of the child, the nature
and duration of the abuse or offense, the relationship of the child to the
offender, the reliability of the assertion, the reliability of the child victim,
and any other factor deemed appropriate[.]” § 90.803(23)(a)1., Fla. Stat.
Other factors the court may consider in making its reliability
determination include, but are not limited to, the following:

      a consideration of the statement’s spontaneity; whether the
      statement was made at the first available opportunity
      following the alleged incident; whether the statement was
      elicited in response to questions from adults; the mental state
      of the child when the abuse was reported; whether the
      statement consisted of a child-like description of the act;
      whether the child used terminology unexpected of a child of
      similar age; the motive or lack thereof to fabricate the
      statement; the ability of the child to distinguish between
      reality and fantasy; the vagueness of the accusations; the
      possibility of any improper influence on the child by
      participants involved in a domestic dispute; and
      contradictions in the accusation.

State v. Townsend, 635 So. 2d 949, 957-58 (Fla. 1994). “[A] court is to use
a totality of the circumstances evaluation in determining reliability.” Id.
at 958.

   With respect to “corroborating evidence,” the “requirement assures that
a defendant will not be convicted solely on the basis of the hearsay
testimony.” Ghelichkhani v. State, 765 So. 2d 185, 190 (Fla. 4th DCA
2000) (quoting Townsend, 635 So. 2d at 957). “Corroborating evidence”
“has been defined as ‘[e]vidence supplementary to that already given and
tending to strengthen or confirm it. Additional evidence of a different
character to the same point.’” Jones v. State, 728 So. 2d 788, 791 (Fla.
1st DCA 1999) (quoting Black’s Law Dictionary 344 (6th ed. 1990)). It has
also been defined as “[e]vidence that differs from but strengthens or
confirms what other evidence shows.” Baugh v. State, 961 So. 2d 198, 204
(Fla. 2007) (alteration in original) (citation omitted). Such evidence
includes physical evidence and a perpetrator’s statements.             See
Ghelichkhani, 765 So. 2d at 190-91. But it is not limited to physical
evidence and incriminating statements. For instance, similar fact evidence
has been found to be corroborating evidence for purposes of section
90.803(23). See Jones, 728 So. 2d at 791. Additionally, a doctor’s opinion

                                       4
that a child “was exhibiting signs of having been sexually abused” is
corroborating evidence. See Zmijewski v. B’Nai Torah Congregation of Boca
Raton, Inc., 639 So. 2d 1022, 1025-26 (Fla. 4th DCA 1994). “The common
thread in all of these cases is that the other evidence tends to confirm the
unlawful sexual act, i.e., the ‘abuse or offense.’” Ghelichkhani, 765 So. 2d
at 192.

   Here, the parties stipulated that the child was “unavailable” for
purposes of section 90.803(23). To the extent it could be found that there
were sufficient indicia of reliability (which is questionable), we can easily
find that the child’s hearsay statements were not corroborated, as required
prior to admission at the final hearing. First, the trial court relied on the
testimony that the child was touching himself while watching television.
The testimony indicated that the mother observed the behavior and was
not alarmed, and that such behavior is normal. While highly sexualized
behavior by a child can constitute corroborating evidence, see T.O. v. Dep’t
of Children & Families, 21 So. 3d 173, 178 (Fla. 4th DCA 2009), this
testimony fell short of establishing as much. In short, the testimony did
not “tend[] to confirm that the charged offense occurred.” Jones, 728 So.
2d at 791.

    The trial court also relied on the child’s pantomime of the alleged abuse.
But according to the mother, the child’s pantomime was done in response
to her direction to the child to show her what happened. As such, it was
hearsay. See § 90.801(1)(a), Fla. Stat. (defining “statement,” for purposes
of the hearsay definition, as including “[n]onverbal conduct of a person if
it is intended by the person as an assertion”); Farinacci v. State, 29 So. 3d
1212, 1213-15 (Fla. 4th DCA 2010) (finding that child’s nonverbal conduct
during interview indicating he was abused was inadmissible hearsay, and
recognizing that “there is no mime exception to the hearsay rule”). A “child
declarant’s hearsay statements cannot be ‘other’ corroborating evidence
within the meaning of section 90.803(23)[.]” R.U. v. Dep’t of Children &
Families, 777 So. 2d 1153, 1160 (Fla. 4th DCA 2001).

   Finally, the trial court relied on the interviewer’s testimony that she
found the child reliable and trustworthy. This is not corroborating
evidence. See id. (finding that a counselor’s belief in the veracity of the
child’s statements “cannot satisfy the ‘other’ evidence requirement, since
the witness may not vouch for the credibility of the child”).

   Based on our finding that the trial court erred in admitting the child
hearsay statements, we also find that the court erred in granting the
petition for domestic violence injunction, which was based on those


                                      5
statements.   We reverse and remand for the trial court to vacate the
injunction.

   Reversed and remanded.

LEVINE, C.J., and GERBER, J., concur.

                           *        *      *

   Not final until disposition of timely filed motion for rehearing.




                                    6
