         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-3027
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JONATHAN A. KNIGHT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.

                        September 7, 2018


WINSOR, J.

     Jonathan Knight was convicted of three counts of sexual
battery on a child under twelve. On appeal he argues that he was
denied the right to meaningful assistance of counsel as well as the
right to confront witnesses against him. We affirm.

     The morning of trial, the court considered the State’s request
to allow the victim—Knight’s daughter—to testify through a
closed-circuit television system pursuant to section 92.54, Florida
Statutes. The State began by explaining how the process would
work: At trial, the child would testify from the State Attorney’s
office, located upstairs in the courthouse. The prosecutor, defense
counsel, and the judge would be in the room with the child, while
Knight and the jury would watch live from the courtroom.
     The court then heard testimony from a licensed clinical social
worker who had counseled the child. The social worker opined that
the child “would probably have significant emotional harm” if
required to testify in open court. Defense counsel made a general
Confrontation Clause argument but offered nothing to refute the
social worker’s opinion. The court granted the State’s motion but
did not make specific findings, despite a statutory requirement
that it do so. See § 92.54(5), Fla. Stat. (“The court shall make
specific findings of fact, on the record, as to the basis for its ruling
under this section.”).

     While the attorneys were out of the courtroom setting up the
equipment, Knight asked the court how he would speak to his
attorney if he had questions during the victim’s testimony. The
court responded by saying “I really don’t want to talk to you right
now without your lawyer here.” Neither Knight nor his attorney
objected to the particular arrangements for the victim’s testimony,
and neither requested a means of communicating during the
testimony.

     Knight was ultimately convicted on all three counts and
sentenced to concurrent terms of life in prison. He now argues that
his convictions should be overturned because the trial court did not
make specific findings in support of its order authorizing the
victim’s remote testimony and because he could not communicate
with his counsel during that testimony.

     “[I]t is recognized that the defendant’s right to confront his
accuser must give way to the State’s interest in sparing child
victims of sexual crimes the further trauma of in-court testimony.”
Ritchie v. State, 720 So. 2d 261, 262 (Fla. 1st DCA 1998).
Consistent with that interest, sections 92.53 and 92.54, Florida
Statutes, allow children to testify by closed-circuit television or
pre-recorded video in certain circumstances. The United States
Supreme Court has upheld similar statutes against Confrontation
Clause challenges, see Maryland v. Craig, 497 U.S. 836, 857 (1990),
and the Florida Supreme Court has upheld Florida’s law, see
Hopkins v. State, 632 So. 2d 1372, 1376 (Fla. 1994). However, both
the United States Supreme Court and the Florida Supreme Court
have acknowledged that the Constitution requires trial court
judges to make case-specific findings before defendants can be

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denied face-to-face confrontation. Craig, 497 U.S. at 857 (“The
requisite finding of necessity must of course be a case-specific one:
the trial court must hear evidence and determine whether use of
the one-way closed circuit television procedure is necessary to
protect the welfare of the particular child witness who seeks to
testify.”); Leggett v. State, 565 So. 2d 315, 318 (Fla. 1990) (“[T]he
factual findings required by section 92.54 are necessarily related
to the constitutional right to confrontation.”).

     First, a trial court’s failure to make case-specific findings as
required by statute can sometimes require reversal. See Feller v.
State, 637 So. 2d 911, 914 (Fla. 1994). But Knight did not preserve
any argument on this point, and a court’s failure to make the
statutorily required findings is not fundamental error. Id. at 913-
14; see also Hopkins, 632 So. 2d at 1374-75. Therefore, the lack of
findings does not provide any basis for reversal.

      Second, Knight failed to preserve any argument that the court
abused its discretion by failing to provide him a mechanism for
communicating with counsel during the child’s testimony.
Although defendants have “the right to immediate and direct
communication with counsel conducting cross-examination,”
§ 92.54(4), Fla. Stat., this right must be specifically invoked, id.
(“upon the defendant’s request, such communication must be
provided by any appropriate electronic method” (emphasis added));
see also Myles v. State, 602 So. 2d 1278, 1281 n.2 (Fla. 1992) (“All
that is required is that the means of instantaneous communication
be supplied if requested.”). Defense counsel never requested that
the court supply a means of communication, and Knight’s
questions posed directly to the court were insufficient to preserve
the issue for appeal. Cf. Farina v. State, 937 So. 2d 612, 629 (Fla.
2006) (“[F]ailure to obtain a ruling on a motion or objection
likewise fails to preserve an issue for appeal.”). We are therefore
left to consider whether there was fundamental error, and we
conclude there was not. Cf. Jackson v. State, 983 So. 2d 562, 575-
76 (Fla. 2008) (concluding that “the temporary absence of counsel,
i.e., a partial deprivation,” is not fundamental error).

    AFFIRMED.

M.K. THOMAS, J., concurs; BILBREY, J., concurs in result with
opinion.
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                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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BILBREY, J., concurring in result.

     I fully concur with the majority decision as to defense
counsel’s failure to preserve the trial judge’s lack of case-specific
findings as required by section 92.54(5), Florida Statutes.

     As to the failure to provide a means for Jonathan Knight to
communicate with his counsel during the out of court testimony by
the child victim, I believe this issue was preserved. Knight’s
counsel raised the issue during the hearing conducted under
section 92.54, and Knight personally raised the issue with the trial
judge after counsel left the courtroom to set up the victim’s video
testimony. Knight should have been provided “immediate and
direct communication” with his counsel during the victim’s
testimony. § 92.54(4).

     However, I believe any error in this regard was harmless. The
harmless error standard applies to constitutional error. See
Goodwin v. State, 751 So. 2d 537 (Fla. 1999). The harmless error
standard therefore includes error regarding the right to counsel
such as what occurred here. See Leerdam v. State, 891 So. 2d 1046
(Fla. 2d DCA 2004). Knight’s counsel conducted a thorough cross-
examination of the child victim, consisting of over twice the
amount of questions as she was asked on direct examination. His
counsel had a clear understanding of the relevant facts including
various family members’ interactions with the victim. Knight’s
counsel repeatedly attempted to impeach the credibility of the
victim both regarding the crimes at issue and fact-specific
collateral matters. It is apparent that Knight and his counsel had
planned for and discussed the questioning of the victim prior to it
occurring.

     Because I believe any error in denying Knight “immediate and
direct communication” with his counsel was harmless, I agree that
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affirmance is the correct result. See State v. DiGuilio, 491 So. 2d
1129 (Fla. 1986); Mincey v. State, 684 So. 2d 236 (Fla. 1st DCA
1996).

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Candice Kaye Brower, Office of Civil Regional and Criminal
Conflict Counsel, Gainesville, and Michael Jerome Titus,
Assistant Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.




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