          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-5266
                  _____________________________

JOSEPH ANTHONY GORMAN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Bay County.
Brantley S. Clark, Jr., Judge.

                         January 14, 2019


WINSOR, J.

     In 1991, Joseph Gorman was accused of sexually assaulting
his six-year-old daughter. The daughter—who was seven by the
time of Gorman’s trial—told the jury what Gorman had done to
her, and the jury convicted. Gorman has been in prison ever since,
where he is serving a life sentence. He now appeals the trial court’s
denial of postconviction relief, and we affirm.

    In the years after the trial, the daughter twice recanted her
accusation, and Gorman twice responded by seeking a new trial
based on newly discovered evidence. 1 The daughter (by then


    1  Gorman also filed another postconviction motion on
unrelated grounds. The trial court denied that motion, and this
twenty-two) first recanted in 2007, executing an affidavit that said
her father never molested her. The affidavit said her mother
(formerly Gorman’s wife) told the daughter to lie at trial,
promising that if she did, Gorman would go “to a better place and
it would help him.” But after Gorman based a postconviction
motion on that affidavit, the daughter recanted her recantation,
claiming in a telephonic deposition that she signed the affidavit at
her aunt’s urging without reading it, all to offer her dying
grandmother peace. She denied any recollection of what happened
with her father back when she was six or seven. Facing that
development, Gorman withdrew his motion. But later, when the
daughter was thirty, she recanted again, now maintaining that her
mother and another woman had coached her to testify that
Gorman had molested her. In this sworn statement, she explained
her contrary deposition testimony by saying that she was then
living with (and dependent on) her mother, that her mother was
sitting with her during the telephonic deposition, and that her
mother did not want her to recant her original trial testimony.

     Based on the latest recantation, Gorman filed a new motion,
and the court held an evidentiary hearing. The daughter (then
thirty-two) testified at the hearing, saying she testified falsely at
trial and that Gorman never molested her. She again blamed her
original testimony on her mother’s improper influence, and she
repeated her claim that she recanted her 2007 recantation only
because she needed her mother’s support at the time. Now, she
said, she was no longer dependent on her mother and could finally
testify truthfully. She acknowledged that her memory was
“spotty,” that she only remembers “bits and pieces,” and that her
many medications—including medication for her bipolar
disorder—might contribute to her memory problems. But she
insisted Gorman was innocent.

    The trial court also heard from the daughter’s brother—
Gorman’s son—who testified that his sister had long told him there
was no molestation. He testified that “sometimes she seems like
her mind’s not all there” and that “some of her memories are just


court affirmed. Gorman v. State, 738 So. 2d 966 (Fla. 1st DCA
1999).

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back and forth.” But his sister had “never said anything bad about
[Gorman], not one word,” and was the victim of a “manipulative”
mother. He believed her. The trial court also heard from the
prosecutor who handled the 1992 trial. She testified that she never
instructed the daughter to testify to anything but the truth.

     The trial court ultimately denied postconviction relief. In a
comprehensive written order, the judge detailed the evidence at
the 1992 trial and the 2017 evidentiary hearing before concluding
that the daughter’s recantation was untrue. The court noted the
daughter’s testimony about her poor memory, her inconsistent
statements (including on matters other than whether her father
molested her), an expert’s trial testimony about sex-abuse victims’
efforts to forget, trial testimony that the daughter had told others
about the abuse, and the daughter’s “educational level and
psychological state.” All of this together made “it clear to the Court
that the recantation [was] unreliable.”

     To receive a new trial based on newly discovered evidence, a
defendant must show that the evidence was actually “newly
discovered,” meaning it was unknown to the court, parties, or
counsel at the time of trial and could not have been discovered
through diligence. Mansfield v. State, 204 So. 3d 14, 17 (Fla. 2016).
The defendant must also show that the evidence is “of such nature
that it would probably produce an acquittal on retrial.” Jones v.
State, 709 So. 2d 512, 521 (Fla. 1998). A recantation can satisfy
these requirements, but only if the court finds it credible.
Therefore, “a trial judge should deny a new trial if it is not satisfied
that the new testimony is true.” Kormondy v. State, 983 So. 2d 418,
438 (Fla. 2007); accord Davis v. State, 26 So. 3d 519, 526 (Fla.
2009) (“Specifically, recanted testimony that is alleged to
constitute newly discovered evidence will mandate a new trial only
if (1) the court is satisfied that the recantation is true . . . .”);
Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994) (“[R]ecanting
testimony is exceedingly unreliable, and it is the duty of the court
to deny a new trial where it is not satisfied that such testimony is
true. Especially is this true where the recantation involves a
confession of perjury.” (quoting Bell v. State, 90 So. 2d 704 (Fla.
1956)).



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     Here, the trial court found the daughter’s recantation not
credible. We therefore must affirm unless the court’s finding was
not supported by competent, substantial evidence. See Archer v.
State, 934 So. 2d 1187, 1195-96 (Fla. 2006). We conclude the
evidence supported the trial court’s determination. The trial court
cited the daughter’s memory problems, inconsistent testimony,
and other factors, and—perhaps most important—the court
benefitted from seeing the daughter testify in person. See Stephens
v. State, 748 So. 2d 1028, 1034 (Fla. 1999) (noting “the trial court’s
superior vantage point in assessing the credibility of witnesses and
in making findings of fact” and explaining that “[t]he deference
that appellate courts afford findings of fact based on competent,
substantial evidence is an important principle of appellate
review”). Because evidence supported the trial court’s conclusion,
we affirm. 2

    AFFIRMED.

B.L. THOMAS, C.J., and WETHERELL, J., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.




    2  Given our conclusion about the trial court’s credibility
determination, we need not consider whether the more recent
recantation was truly “newly discovered evidence.” Cf. Archer, 934
So. 2d at 1194 (“A recantation will not be considered newly
discovered evidence where the recantation offers nothing new or
where the recantation is offered by an untrustworthy individual
who gave inconsistent statements all along.”).

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Ashley Brooke Moody, Attorney General, and Kaitlin Weiss,
Assistant Attorney General, Tallahassee, for Appellee.




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