         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


JOSEPH L. HALLIDAY,

             Appellant,

 v.                                                   Case No. 5D15-1803

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed May 27, 2016

Appeal from the Circuit Court
for Brevard County,
Charles J. Roberts, Judge.

Gray R. Proctor, of The Law Office of
Gray R. Proctor, Orlando, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona
Beach, for Appellee.


COHEN, J.

      Joseph Halliday appeals his convictions for sexual battery upon a person under

the age of twelve, lewd and lascivious molestation of a person under the age of twelve,

and distributing obscene material to a minor. Of the issues raised, we find only one has

merit. Halliday argues that the trial court erred in denying his motion for judgment of

acquittal on the lewd and lascivious molestation charge because the only evidence to
support that conviction was the victim’s out-of-court statements, which were contradicted

by her in-court testimony. We agree.

       The victim, S.H., testified at trial. Her testimony was sufficient to establish that

Halliday committed sexual battery on a child under twelve and distributed obscene

material to a minor. However, contrary to her earlier statements made to the Child

Protection Team in a recorded interview, S.H. denied the conduct charged as lewd and

lascivious molestation. The State sought to admit the interview as substantive evidence,

not merely for impeachment. The trial court admitted the interview as substantive

evidence, and the entire recording was played for the jury. 1

       Out-of-court statements of a child witness are permitted as an exception to hearsay

under section 90.803(23), Florida Statutes (2015), which provides:

              (23) Hearsay exception; statement of child victim. –

              (a) Unless the source of information or the method or
              circumstances by which the statement is reported indicates a
              lack of trustworthiness, an out-of-court statement made by a
              child victim with a physical, mental, emotional, or
              developmental age of 16 or less describing any act of child
              abuse or neglect, [etc.], not otherwise admissible, is
              admissible in evidence in any civil or criminal proceeding if:

                 1. The court finds in a hearing conducted outside the
                 presence of the jury that the time, content, and
                 circumstances of the statement provide sufficient
                 safeguards of reliability . . . ; and

                 2. The child either: a. Testifies; or b. Is unavailable as
                 a witness, provided that there is other corroborative
                 evidence of the abuse or offense. . . .

§ 90.803, Fla. Stat. (2015) (emphasis added).



       1The State also elicited similar hearsay testimony from the mother of S.H. and an
investigator from the Department of Children and Families.


                                             2
       In Beber v. State, 887 So. 2d 1248 (Fla. 2004), the Florida Supreme Court made

clear that prior inconsistent child-hearsay statements alone are insufficient to sustain a

criminal conviction. In Beber, the child victim told investigators during a taped interview

that the defendant had performed fellatio upon him. Id. at 1250. While the child testified

at trial that Beber had touched the child’s penis with his hand, the child denied that Beber

had performed oral sex upon him. Id. There was no other corroborating evidence of

fellatio. Beber successfully argued that the evidence was insufficient to support his

conviction. The Court held that “a prior inconsistent statement standing alone is

insufficient to prove guilt beyond a reasonable doubt,” and “[a] child’s hearsay statements,

standing alone, are insufficient to sustain [a] conviction.” Id. at 1252-53 (first quoting State

v. Moore, 485 So. 2d 1279, 1281 (Fla. 1986); then quoting State v. Green, 667 So. 2d

756, 760 (Fla. 1995)).

       Similarly, in Baugh v. State, 961 So. 2d 198, 203-04 (Fla. 2007), the Florida

Supreme Court considered a case where the only direct evidence against the defendant

was a statement made to police by the child-victim, which was later recanted. In Baugh,

the Supreme Court reiterated, “As we held in Green and reaffirmed in Beber, ‘a prior

inconsistent statement standing alone is insufficient as a matter of law to prove guilt

beyond a reasonable doubt.’” Id. at 204 (first quoting Green, 667 So. 2d at 760; then citing

Beber, 887 So. 2d at 1251).

       Accordingly, because uncorroborated out-of-court statements were the only

evidence in this case of lewd and lascivious molestation as charged by the State, we

reverse Halliday’s conviction on this count and remand for entry of a judgment of acquittal




                                               3
on that charge. We find no error in the convictions for sexual battery and distributing

obscene materials, and affirm those convictions.


      AFFIRMED IN PART, REVERSED IN PART.


LAWSON, C.J., and EVANDER, J., concur.




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