           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2808
                  _____________________________

STATE OF FLORIDA,

    Petitioner,

    v.

DWAYNE BOATMAN,

    Respondent.
                  _____________________________

Petition for Writ of Certiorari—Original Jurisdiction.


                           July 9, 2019


ROWE, J.

     The State seeks a writ of certiorari to quash an order
prohibiting the use of hearsay statements by the child victim in
the prosecution of Dwayne Boatman for capital sexual battery and
lewd or lascivious molestation. In determining that the child’s
statements were too unreliable to be admitted into evidence, the
trial court made findings and reached legal conclusions based on
facts not presented at the evidentiary hearing and unsupported by
the record. This was a departure from the essential requirements
of law and caused irreparable harm.

                              Facts

      Boatman’s nine-year-old stepdaughter, K.S., reported to
officials at her elementary school that Boatman “had sex” with her.
She also stated that Boatman “raped” her the very morning she
made the report. K.S. was referred to a child protection team, who
then performed a recorded forensic interview.          During the
interview, K.S. repeated that Boatman “raped” her. When asked
what she meant by that term, K.S. said that it meant that he “had
sex with her” and explained that Boatman had penetrated her
anus with his penis.

     A sexual assault examination was conducted the same day.
A nurse practitioner swabbed K.S.’s anal area to test for DNA. The
test results revealed that the DNA retrieved from the anal swabs
matched Boatman’s DNA. Based on the evidence obtained from
the forensic interview and the sexual assault examination, the
State charged Boatman with sexual battery and lewd and
lascivious molestation.

     Before the State could go to trial, K.S. recanted. In a four-
minute deposition taken by Boatman’s attorney two years after the
alleged rape and K.S.’s reports to school officials, K.S. denied that
Boatman raped her. When asked by defense counsel if she knew
what the term “rape” meant, K.S. responded, “I know what it
means now, but I didn’t know what it means then.” She refused to
explain her current understanding of the word. When asked if
Boatman had ever put his private part to her private part, K.S.
responded, “No. Not that I’m referring of, no.” K.S. stated that
she loved Boatman more than her real father and that Boatman
would not be in prison were it not for her earlier statements. The
State asked K.S. on cross-examination whether she would do
anything to protect her family. K.S. responded affirmatively, “I
don’t care how I do it, shoot to kill.” No further questions were
asked, and the deposition concluded.

     After the deposition, the State moved under section
90.803(23), Florida Statutes (2018), to introduce the child hearsay
statements K.S. made in her recorded CPT interview and the
hearsay statements she made to the two school officials, the nurse
who performed the sexual assault examination, and the CPT
member who conducted the interview. The court conducted an
evidentiary hearing and after considering testimony and
information obtained during discovery, determined that K.S.’s


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statements were unreliable. Included in the order were findings
regarding DNA evidence:

    The evidence provided by the State in the course of
    discovery indicates that the DNA from the swabs taken
    from K.S.’s anal and vaginal areas matched the
    Defendant’s DNA.        One reasonable hypothesis of
    innocence to explain the presence of such DNA may be
    that the Defendant and his wife had sexual intercourse;
    the wife (K.S.’s mother); the wife used the “community”
    dirty, green rag to “wipe up” after this marital activity;
    and K.S. used this same dirty, green rag to “wipe up” to
    retaliate against her stepfather for not giving her the
    attention she sought.

The court also found that K.S.’s conduct may “fall under the
description of a child with feminine Oedipal complex (Electra
complex).” The court excluded the hearsay statements based on
its determination that the statements were unreliable.

                             Analysis

     The State seeks certiorari review of the court’s order
prohibiting K.S.’s hearsay statements from being used to prosecute
Boatman. See State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988)
(holding that the State may seek certiorari review of nonfinal
pretrial orders in a criminal case). Before certiorari relief may be
granted, we must find that the order is “(1) a departure from the
essential requirements of the law, (2) resulting in material injury
for the remainder of the case (3) that cannot be corrected on
postjudgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889
So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder, 826
So. 2d 382, 387 (Fla. 2d DCA 2002)).

     We first consider whether the State will suffer a material
injury that cannot be corrected on appeal. Segura v. State, 44 Fla.
L. Weekly D1210a (Fla. 1st DCA May 6, 2019). When a pretrial
order significantly impairs the State’s ability to prosecute by
excluding critical evidence, the harm is irreparable because the
State cannot appeal if the defendant is acquitted. Pettis, 520 So.
2d at 253; See Fla. R. App. P. 9.140(c)(1) (listing the orders the

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State may appeal in criminal proceedings). Here, the State’s
prosecution of Boatman will be seriously, if not entirely, impeded
if K.S.’s hearsay statements are excluded. State v. Thomas, 207
So. 3d 928, 932-33 (Fla. 1st DCA 2016).

     Because the State has established irreparable harm, we must
next determine whether the order departs from the essential
requirements of the law. This requires the State to show “more
than a simple legal error.” Allstate Ins. Co. v. Kaklamanos, 843
So. 2d 885, 889 (Fla. 2003). Rather, the State must show “an
inherent illegality or irregularity, an abuse of judicial power, an
act of judicial tyranny perpetrated with disregard of procedural
requirements, resulting in a gross miscarriage of justice.” Jones v.
State, 477 So. 2d 566, 569 (Fla. 1985).

     The order under review excludes the use of hearsay
statements by K.S. in the prosecution of Boatman. See §
90.803(23), Fla. Stat. (2018) (allowing as an exception to the
hearsay rule, the admission of a statement of a child victim of
sexual abuse when certain conditions have been met.) Before
permitting statements of a child victim to be admitted into
evidence, the trial court must find that “the source of the
information through which the statement is reported is
trustworthy.” State v. Townsend, 635 So. 2d 949, 954 (Fla. 1994).
Further, the court must find that “the time, content, and
circumstances of the statement must reflect that the statement
provides sufficient safeguards of reliability.” Id. Here, the court
found that each source was trustworthy. But the court concluded
there were “not sufficient safeguards of reliability with respect to
K.S.’s statements.” The State argues that in reaching this
conclusion, the trial court relied on facts and theories unsupported
by the record. The State argues that this was a departure from the
essential requirements of law. See State v. White, 152 So. 3d 633,
635 (Fla. 4th DCA 2014).

     The State first points to the court’s findings regarding the
presence of Boatman’s DNA on swabs taken from K.S.’s anal
region. The court offered a “reasonable hypothesis of innocence” 1

    1The “reasonable hypothesis of innocence” standard is used
when a defendant moves for judgment of acquittal, and the
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to explain how the DNA could have been transferred from
Boatman to K.S. The court found that Boatman’s DNA was
present on swabs taken from K.S.’s anal and vaginal areas. This
is significant because the court relied on this finding to explain its
theory of how Boatman’s DNA was transferred to K.S. The court
theorized—absent any argument by Boatman—that Boatman and
his wife had sex, the wife used a rag to clean herself, and then K.S.
used the same rag to wipe up, transferring Boatman’s DNA to K.S.

     The court’s findings and theory about the DNA transfer are
unsupported by any evidence offered by the State or the defense.
The nurse practitioner who performed the sexual assault
examination testified that she took swabs only from K.S.’s anal
region. Nothing in the record supports the court’s supposition that
Boatman and his wife had sex before the alleged sexual battery—
much less that Boatman’s wife cleaned up afterwards with the
same rag that later was used by K.S. Even if these events had
occurred, K.S. testified that she used a rag to wipe her vaginal area
after Boatman had sex with her—she never testified that she
cleaned her anal region where the nurse swabbed for DNA. These
findings and theories by the court were wholly speculative, without
foundation in the record, and appeared for the first time in the
order excluding K.S.’s hearsay statements. 2 This was a departure
from the essential requirements of law. White, 152 So. 3d at 635.


evidence of the defendant’s participation in the case is wholly
circumstantial. Knight v. State, 186 So. 3d 1005, 1009-10 (Fla.
2016).   The standard does not apply to the trial court’s
determination of whether to exclude the child victim hearsay
statements.
    2    The State was prohibited from introducing the DNA
evidence to corroborate the trustworthiness of K.S.’s hearsay
statements. Idaho v. Wright, 497 U.S. 805, 822 (1990) (“[H]earsay
evidence used to convict a defendant must possess indicia of
reliability by virtue of its inherent trustworthiness, not by
reference to other evidence at trial.”). Instead, the State had to
show that the statements were independently reliable. N.W. v.
M.W., 41 So. 3d 383, 384 (Fla. 2d DCA 2010) (explaining that the
trial court applied the wrong standard for admitting evidence
under the child hearsay exception when it found a statement
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     The court also diagnosed K.S. with a psychiatric disorder
without an evidentiary foundation. Although it determined that
there was no evidence that K.S. fabricated her reports that
Boatman raped her, the trial court opined that K.S. suffered from
a “feminine Oedipal complex (Electra complex).” 3 But there was
no medical evidence in the record to support the court’s clinical
diagnosis of the child victim. Although a nurse performed a sexual
assault examination of K.S., K.S. was never examined by a
psychologist or psychiatrist. The only evidence in the record with
even a remote nexus to the court’s diagnostic finding was a self-
serving statement made by Boatman during a police interrogation
that K.S. had recently started to “rub” and “grind” on him. The
court’s order injected for the first time in the proceeding any notion
that K.S. suffered from a psychiatric disorder. This, too, was a
departure from the essential requirements of the law. See Walker
v. State, 55 So. 3d 718, 720-21 (Fla. 1st DCA 2011) (granting
certiorari when the court considered an exhibit submitted after the
close evidence because the opposing party had no opportunity to
respond).

     Because the order departs from the essential requirements of
law and irreparably harms the State, we GRANT the petition and
QUASH the order excluding K.S.’s hearsay statements. See State v.
Harbeson, 651 So. 2d 1249 (Fla. 2d DCA 1995) (granting certiorari
relief where pretrial order excluded child victim hearsay evidence).

JAY and M.K. THOMAS, JJ., concur.


unreliable because of the lack of medical evidence). The trial
court’s insertion of the DNA evidence into the proceeding created
a catch-22: while the court relied on the DNA evidence and
advanced a theory of Boatman’s innocence based on the DNA
evidence, the State could not offer the DNA evidence to corroborate
K.S.’s hearsay statements.

    3   An Electra complex is “the female counterpart of the
Oedipus complex, involving the daughter’s love for her father,
jealousy toward the mother.” APA Dictionary of Psychol., ELECTRA
COMPLEX, https://dictionary.apa.org/electra-complex. (last visited
May 29, 2019).

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                _____________________________

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


Ashley Moody, Attorney General, and Virginia Harris, Assistant
Attorney General, Tallahassee, for Petitioner.

Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Respondent.




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