          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D18-1661
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GENE TRUMAN SMITH,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
Edward P. Nickinson, III, Judge.

                            April 5, 2019


PER CURIAM.

     Based on acts involving his biological daughter, Gene Smith
was charged with capital sexual battery. Smith waived his right to
a jury trial, opting to let a judge decide his guilt or innocence. The
judge heard testimony from the victim, who was seven at the time
of the conduct and nine by the time of trial. The victim testified
that Smith forced her to perform sex acts on him in a motel room
while Smith’s infant child—the victim’s half-brother—rested in a
baby carrier nearby. Then the infant’s mother testified, explaining
that she witnessed the act after walking in on Smith unexpectedly.
And a second woman testified that she entered the room right after
the incident, not seeing the act itself but witnessing its immediate
aftermath. In addition, the judge watched a video of the victim’s
child-protection-team interview. And the judge also heard a
recorded jail call between Smith and the infant’s mother.

     After hearing the evidence, the judge found Smith guilty and
sentenced him to life in prison. Smith appeals, raising two issues.
First, he contends that the trial court should have excluded the
video of the child’s interview. Second, he contends the jail call
audio was inadmissible hearsay. We reject both contentions.

     Under section 90.802(23), Florida Statutes, courts can
consider hearsay evidence from victims of child sex abuse. The
statute provides that courts must first conduct a hearing to
determine whether the hearsay evidence has sufficient indicia of
reliability. See State v. Townsend, 635 So. 2d 949, 954 (Fla. 1994);
Small v. State, 179 So. 3d 421, 424 (Fla. 1st DCA 2015). We review
a trial court’s determinations regarding reliability only for an
abuse of discretion. Small, 179 So. 3d at 424. Here, the trial court
detailed its reasoning for finding the statement sufficiently
reliable, including the manner in which the interview was
conducted, the child’s behavior during the interview, the child’s
description of the acts, and other appropriate factors. See
Townsend, 635 So. 2d at 957-58 (describing appropriate factors for
consideration). We find no abuse of discretion.

      We next reject Smith’s second argument, that the trial court
should have excluded the jail-call audio as hearsay. Whether
evidence qualifies as hearsay subject to an exception is a question
reviewed de novo. See Powell v. State, 99 So. 3d 570, 573 (Fla. 1st
DCA 2012). In the call, the mother of Smith’s infant told him he
needed to get help, and Smith asked, “you gonna help me get the
help that I need?” Smith argues this was not an admission because
he was not admitting to the abuse. But whether he was admitting
to a crime or not, his own statements are excepted from the general
hearsay prohibition. See § 90.803(18)(a), Fla. Stat.; see also Moore
v. State, 701 So. 2d 545, 549 (Fla. 1997) (noting that a party’s own
statement satisfies the § 90.083(18)(a) admissions exception). The
trial court did not abuse its discretion in admitting the evidence.
Regardless, we conclude that even if the call audio was
inadmissible, any error was harmless. See State v. DiGuilio, 491
So. 2d 1129 (Fla. 1986).

    AFFIRMED.
                                 2
ROBERTS, KELSEY, and WINSOR, JJ., concur.

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

Ashley B. Moody, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




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