                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA

ROBERT EDWARD CURRAN,                    NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
      Appellant,                         DISPOSITION THEREOF IF FILED

v.                                       CASE NO. 1D15-5222

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed November 8, 2017.

An appeal from the Circuit Court for Santa Rosa County.
John L. Miller, Judge.

Jason Cromey, Cromey Law, P.A., Pensacola, for Appellant.

Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney
General, Tallahassee, for Appellee.


WOLF, J.

      Appellant raises a number of challenges to the denial of his postconviction

motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he

alleged ineffective assistance of counsel. We find the circuit court erred in

summarily denying grounds 1, 4, 5, 6, and 9 of appellant’s postconviction motion

for failure to sufficiently allege prejudice. In all other regards, we affirm the circuit

court’s order.
                                      I. Facts

      Appellant was convicted of one count of lewd or lascivious molestation of a

child less than 12 years of age – his step-daughter. During trial, several witnesses

testified that the victim made statements to them regarding the incident of lewd or

lascivious molestation for which appellant was charged. The State also presented

the testimony of the victim, who testified not only about the charged incident, but

also about other acts of lewd or lascivious conduct and physical abuse that she

alleged appellant committed against her. The State also played for the jury portions

of the victim’s recorded interview with the child protective team, during which she

stated that appellant made threats and committed acts of violence against family

pets. Additionally, defense counsel submitted evidence that appellant had been

convicted of battering his biological daughter.

      In ground 1 of his postconviction motion, appellant argued defense counsel

was ineffective for stipulating to the admission of testimony from 4 witnesses who

testified as to the victim’s out-of-court statements because section 90.803(23),

Florida Statutes (2009), states that such evidence is admissible only if the trial

court conducts a hearing and concludes that the “time, content, and circumstances

of the statement provide sufficient safeguards of reliability.” Appellant argued that

if counsel had requested a hearing, counsel could have presented sufficient grounds

to exclude the witnesses’ testimony. He further argued that he was prejudiced

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because these witnesses made up the majority of the State’s case; thus, if their

testimony had been excluded, the jury would have been left with the competing

accounts of appellant and the victim, whom he alleged had falsified her accusations

against him and whose credibility he attempted to challenge during trial.

      In ground 4, appellant argued counsel was ineffective for failing to object to

testimony regarding the uncharged lewd or lascivious acts, which he alleged were

irrelevant and highly prejudicial. He asserted the allegations, which included that

he urinated on the child while she slept, were “some of the worst that could be

imagined.” In grounds 5 and 6, he argued counsel was ineffective for failing to

object to testimony regarding the allegations of physical abuse and animal abuse,

and in ground 9, he argued counsel was ineffective for admitting evidence that

appellant had been previously convicted of battering his biological daughter. He

argued all of this evidence was irrelevant and highly prejudicial because it

bolstered the victim’s claim that she had waited a year to come forward because

she was afraid that appellant would hurt her.

      The circuit court summarily denied all of these claims by finding that

appellant failed to sufficiently allege prejudice.




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                                    II. Analysis

      As set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), “[t]o

state a facially sufficient claim of ineffective assistance of counsel, the convicted

movant must have alleged deficient performance on the part of trial counsel and

prejudice resulting from that deficient performance.” Morrison v. State, 860 So. 2d

458, 460 (Fla. 1st DCA 2003). “To establish prejudice, the appellant must show

that there was a ‘reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’” Id. (quoting

Cherry v. State, 781 So. 2d 1040, 1048 (Fla. 2000)). “A mere conclusory allegation

that the outcome would have been different is insufficient to state a claim of

prejudice under Strickland; the defendant must demonstrate how, if counsel had

acted otherwise, a reasonable probability exists that the outcome would have been

different – that is, a probability sufficient to undermine confidence in the

outcome.” Jones v. State, 998 So. 2d 573, 584 (Fla. 2008).

      “If the movant’s claims are facially sufficient and not conclusively refuted

by the record, the cause must be remanded for the trial court to either hold an

evidentiary hearing or to attach record portions conclusively refuting the

appellant’s allegations.” Morrison, 860 So. 2d at 460.

      Here, we find that appellant sufficiently alleged prejudice. Regarding the

child hearsay witnesses, “[t]he admission of a corroborative statement can provide

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powerful evidence to support credibility and reliability.” Platt v. State, 201 So. 3d

775, 778-79 (Fla. 4th DCA 2016) (finding the erroneous admission of child

hearsay testimony was harmful error). Here, there was no physical evidence and no

eyewitness testimony. Thus, the State’s case rested heavily on the victim’s

credibility. Without the corroborating testimony of the 4 witnesses, the State’s case

would have essentially come down to the competing version of events testified to

by the victim and appellant. Thus, we find appellant sufficiently demonstrated that

if counsel had challenged the admission of this testimony, there was a reasonable

probability that the outcome in the proceedings would have been different.

Morrison, 860 So. 2d at 460; Jones, 998 So. 2d at 584.

      Similarly, we find appellant sufficiently alleged that he was prejudiced by

the admission of testimony regarding allegations of uncharged lewd or lascivious

acts against the victim, physical violence against the victim and family pets, and

the prior conviction for battery against his biological daughter. The uncharged acts

of lewd or lascivious molestation were disturbing and supported the victim’s

accusation of the charged instance of lewd or lascivious molestation. The

uncharged acts of physical violence supported the victim’s testimony that she

waited a year to come forward because she feared that appellant would harm her,

undermining appellant’s theory of defense that the victim waited a year to come

forward because her allegations were fabricated. Thus, we find appellant

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sufficiently demonstrated that if counsel had objected to this testimony, there was a

reasonable probability that the outcome in the proceedings would have been

different. Morrison, 860 So. 2d at 460; Jones, 998 So. 2d at 584.

      Accordingly, we reverse the court’s order with respect to grounds 1, 4, 5, 6,

and 9, and remand with instructions for the court either to attach portions of the

record conclusively refuting appellant’s entitlement to relief or to hold an

evidentiary hearing. Morrison, 860 So. 2d at 461-62. In all other respects, we

affirm the trial court’s order.

      AFFIRMED in part; REVERSED in part; REMANDED with directions.

ROBERTS, J., CONCURS; B.L. THOMAS, C.J., CONCURS IN RESULT
ONLY.




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