DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA,
Appellant,
v.
MARCUS NATHAN JACKSON,
Appellee.
No. 2D23-212
April 12, 2024
Appeal from the Circuit Court for Sarasota County; Lee E. Haworth,
Senior Judge.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin,
Senior Assistant Attorney General, Tampa, for Appellant.
Howard L. Dimmig, II, Public Defender, and Maureen E. Surber,
Assistant Public Defender, Bartow, for Appellee.
PER CURIAM.
Affirmed.
VILLANTI and KHOUZAM, JJ., Concur.
ATKINSON, J., Dissents with opinion.
ATKINSON, Judge, Dissenting.
The State appeals the trial court's order granting Mr. Jackson's
motion in limine, which precluded the State from introducing Mr.
Jackson's confession into evidence at trial pursuant to section 92.565,
Florida Statutes (2021). I respectfully dissent because, for the reasons
explained below, I would reverse the trial court's order and remand for
further proceedings.
Background
The State charged Mr. Jackson in a three-count information for
offenses committed against his six-year-old daughter. Count I alleged
that Mr. Jackson committed a sexual battery by digital penetration of her
vagina, in violation of section 794.011(2)(a), Florida Statutes; Count II
alleged that Mr. Jackson committed a sexual battery through penile-
vaginal contact, also in violation of section 794.011(2)(a); and Count III
alleged that Mr. Jackson committed lewd or lascivious molestation
through her touching of his penis, in violation of section 800.04(5)(b),
Florida Statutes.
Precipitating the State's information was Mr. Jackson's recorded
confession to law enforcement at the Sarasota County Sheriff's Office on
November 17, 2021, which was transcribed in two parts. In the first
part, Mr. Jackson confessed to Detective Gaeta that he rubbed his penis
on his daughter's vagina and ejaculated. When asked if "[a]t any time
during that did your daughter touch you," he responded, "She did touch
it." In the second part, Mr. Jackson confessed to Detective Ortiz that he
rubbed his penis on his daughter's vagina and ejaculated and, during
that time, his daughter touched his penis, and that he put his finger in
his daughter's vagina "[m]aybe twice."
2
Mr. Jackson filed a motion in limine requesting the trial court "to
conduct a hearing to determine the admissibility of [his] Confession." He
contended that before his confession could be admitted into evidence at
trial, the State was required comply with section 92.565 by "prov[ing] by
a preponderance of the evidence that there is sufficient corroborating
evidence that tends to establish the trustworthiness of the statement
made by the defendant." In its response, the State argued that there was
"sufficient corroborating evidence that tends to establish the
trustworthiness of [Mr. Jackson's] recorded confession to law
enforcement on November 17, 2021[,] and request[ed] its admission at
trial."
As part of its argument that the statutory trustworthiness
corroboration requirement for admission of Mr. Jackson's confession had
been met, the State relied upon the circumstances of the confession
itself. The State noted that it was Mr. Jackson who voluntarily contacted
law enforcement to initiate the November 17, 2021, meeting during
which he confessed to the detectives about what happened with his
daughter. The State also pointed out that the fifty-two-year-old Mr.
Jackson was of sufficient age and maturity. And the State pointed to the
fact that Mr. Jackson had expressed relief "throughout the interview with
Detective Ortiz" after "getting this off his chest" by confessing.
To corroborate the trustworthiness of the confession, the State also
relied upon evidence of prior statements made by Mr. Jackson, including
a series of messages Mr. Jackson exchanged with a woman he met
through an online singles group on Facebook and a transcript of a
controlled call in which a detective posed as the woman from Facebook.
In the Facebook messages, Mr. Jackson described various sexual
encounters his daughter had with other young boys and described
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situations in which he left his daughter alone with other young boys
despite knowing such sexual encounters had happened before. He
claimed his daughter enjoyed it, which he described as "pretty hot" and
making him "happy." He asked the woman if her children "get hard"
when cuddling with her, suggesting that "if the boys climbed in bed with
[her] and they could see it they would want to put it inside [her]" and
encouraging her to "maybe let them see it a little more often and see
what they do." The woman expressed uncertainty and asked Mr.
Jackson if he had "ever done anything with [his] daughter?" Mr. Jackson
responded: "No she has touched it but she likes touching herself. She's
very curious about it." The woman later testified that she understood
Mr. Jackson to be referring to his daughter touching his penis.
On the controlled call, the detective, posing as the woman with
whom Mr. Jackson had exchanged the Facebook messages, asked Mr.
Jackson whether he would want their kids to get together to "engag[e] in
something like sexual." Mr. Jackson responded that he would want to
"let them just kind of explore it and, you know, do whatever they're
comfortable with." He explained that his daughter "knows . . . kind of
what to do" and could tell her boys about her prior experience of "how
they put it inside of her" and "how good it felt." When asked if he ever
lets his daughter do anything to him, Mr. Jackson responded, "No. I
mean, she's touched it, but that's about it." Mr. Jackson also stated that
"[y]our boys and I would probably have fun." The State argued that Mr.
Jackson's statements in the Facebook messages and on the controlled
call evidenced his "lustful attitude" toward his daughter, which tended to
establish the trustworthiness of his subsequent confession to law
enforcement that he had acted upon his desires.
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The trial court found that, "upon review of the context, content,
and circumstances of his incriminating admissions, . . . the statements
standing alone [were] highly trustworthy and compelling evidence of
criminal behavior." Nonetheless, the court reasoned that, "separate from
the confessional statements themselves," there was no evidence that
"tends to establish the type of harm for which the defendant is being
criminally charged." The court further explained that "independent
corroborative evidence of the three charged crimes is missing," noting
there was "no victim testimony, medical/forensic evidence, or eye-
witnesses." The trial court granted Mr. Jackson's motion in limine and
precluded the State from "introduc[ing] [Mr. Jackson's] admissions to the
jury."
Analysis
The State argues that the trial court erred in granting Mr.
Jackson's motion in limine pursuant to section 92.565. The trial court's
factual findings are reviewed for competent substantial evidence, but its
resolution of legal questions and its application of the facts to the law are
reviewed de novo. See Allen v. State, 70 So. 3d 700, 702 (Fla. 4th DCA
2011) (explaining the standard of review in an appeal of a trial court's
order entered pursuant to section 92.565 (citing State v. Glatzmayer, 789
So. 2d 297, 301 n.7 (Fla. 2001))).
Generally, "[a] person's confession to a crime is not sufficient
evidence of a criminal act where no independent direct or circumstantial
evidence exists to substantiate the occurrence of a crime." State v. Allen,
335 So. 2d 823, 825 (Fla. 1976). Under the corpus delicti rule, the State
must "at least show the existence of each element of the crime" before the
defendant's confession may be admitted. Id.; see also Bradley v. State,
918 So. 2d 337, 339 (Fla. 1st DCA 2005) ("Florida courts continue to
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hold that the corpus delicti of a crime must be established independently
of the defendant's confession. Consequently, the state must present
evidence to show that the crime was committed and that all of the
elements exist before the defendant's confession may be admitted in
evidence.").
However, the Florida Legislature created an exception to the corpus
delicti rule regarding the admissibility of confessions in certain sexual
abuse cases. See Bradley, 918 So. 2d at 340 ("[Section 92.565]
eliminates the need to establish the corpus delicti of the crime as a
predicate to admitting the defendant's confession in evidence."). In such
cases,
the defendant's memorialized confession or admission is
admissible during trial without the state having to prove a
corpus delicti of the crime if the court finds in a hearing
conducted outside the presence of the jury that the state is
unable to show the existence of each element of the crime,
and having so found, further finds that the defendant's
confession or admission is trustworthy.
§ 92.565(2).1 "[T]he state must prove by a preponderance of the evidence
that there is sufficient corroborating evidence that tends to establish the
trustworthiness of the statement by the defendant." § 92.565(3).
Hearsay evidence is admissible, and "the court may consider all relevant
corroborating evidence, including the defendant's statements." Id.
The State argues that the trial court effectively applied the corpus
delicti rule in derogation of section 92.565 because it granted the motion
in limine for lack of independent evidence of the charged offenses when
1 In this case, the State was unable to show the existence of each
element of the crime because the victim was less than twelve years of
age. See Bradley, 918 So. 2d at 341 (explaining that section 92.565(2)(c)
"creates a bright-line exception [to the corpus delicti rule] for victims
under the age of twelve").
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the State only needed to present evidence corroborating the
trustworthiness of the confession. The State further argues that it
"presented sufficient evidence demonstrating, by a preponderance of the
evidence[,] that [Mr.] Jackson's admissions to law enforcement were
trustworthy."
The State's concern that the trial court might have improperly
applied the corpus delicti rule in a context in which it is statutorily
inapplicable might be overblown. Cf. State v. Tumlinson, 224 So. 3d 766,
775 (Fla. 2d DCA 2016) (Lucas, J., dissenting) (contending the trial court
had "collapse[ed] the requirement for independent corroborating evidence
of a confession's trustworthiness into the corpus delicti evidentiary
requirement that the confessed offense was actually committed"). While
the trial court pointed out a purported lack of "independent corroborative
evidence of the three charged crimes," its statement does not, in
isolation, necessarily impose the corpus delicti requirement that some
independent evidence of each and every element of the crime be adduced
before admission of the confession. And while the State correctly
identifies a relevant distinction between evidence supporting the
commission of a crime and evidence corroborating the trustworthiness of
the confession, corroboration of a declarant's confession that he
committed the charged crime might likely, if not often, also corroborate
commission of the charged crime itself. See id. ("To be sure, the kind of
evidence corroborating a confession's trustworthiness may, at times, be
substantially similar in quality or character to the kind of evidence that
would have met the traditional requirements of corpus delicti.").
However, the trial court did erroneously disregard sufficiently
corroborative evidence of the confession's trustworthiness by
misidentifying statements that the State presented to corroborate the
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trustworthiness of Mr. Jackson's confession as part of the confession
itself that needed to be corroborated. In other words, the trial court
conflated Mr. Jackson's confession that the State sought to introduce at
trial with his other statements that the State presented to corroborate
the trustworthiness of the confession, treating all of Mr. Jackson's
statements—including the Facebook messages and controlled call
statements—as "confessional" and subjecting them all to the
trustworthiness analysis set forth in section 92.565. But under section
92.565(3), corroboration of the confession sought to be admitted can take
the form of "statements" made by the defendant, even though the
"statement" sought to be admitted—the "confession or admission"—
cannot itself be "evidence" corroborating its own trustworthiness.
Whether by a failure to distinguish between corroborative statements
and the confession that was the subject of the motion in limine or by a
misreading of the statute to require the State to present something more
than statements made by Mr. Jackson to corroborate the confession's
trustworthiness, the trial court erred when it concluded that the State
had presented no evidence "separate from the confessional statements
themselves" and therefore no "corroborating evidence" of the
trustworthiness of the confession the State sought to admit.
Section 92.565 differentiates between the "memorialized confession
or admission" that is the subject of the trustworthiness requirement and
"the defendant's statements" that may be used as "corroborating
evidence" to prove the trustworthiness of the memorialized confession or
admission the State seeks to admit into evidence. Compare § 92.565(2)
("[T]he defendant's memorialized confession or admission is admissible
. . . if the court finds . . . that the defendant's confession or admission is
trustworthy."), with § 92.565(3) ("[T]he court may consider all relevant
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corroborating evidence, including the defendant's statements."). The
trustworthiness of "the statement" (singular) constituting the "confession
or admission" the State is seeking to admit into evidence may be
supported by other "corroborating" "statements" (plural) made by the
defendant. See § 92.565(3) ("Before the court admits the defendant's
confession or admission, the state must prove . . . that there is sufficient
corroborating evidence that tends to establish the trustworthiness of the
statement by the defendant" and "the court may consider all relevant
corroborating evidence, including the defendant's statements." (emphasis
added)). In other words, the "memorialized confession or admission"—
although possibly comprised of one or more statements—cannot
corroborate itself, but the corroborating evidence can take the form of
other statements made by the defendant—which themselves might be
confessional in nature or constitute admissions to crimes. See §
92.565(3); Hernandez v. State, 946 So. 2d 1270, 1276 (Fla. 2d DCA 2007)
("To 'corroborate' means '[t]o strengthen or support with other evidence;
make more certain.' Thus a confession cannot corroborate itself."
(alteration in original) (quoting The American Heritage Dictionary of the
English Language 412 (4th ed. 2000))). More simply put, not every
statement made by the defendant constitutes a "memorialized confession
or admission" subject to the trustworthiness analysis.
The State only requested that the trial court determine the
admissibility of Mr. Jackson's "recorded confession to law enforcement
on November 17, 2021." And the State made clear at the hearing that
"[t]he issue is whether the State has established by [a pre]ponderance of
evidence that the statement he made to law enforcement was
trustworthy." (Emphasis added.) The statute allowed the State to rely on
Mr. Jackson's other "statements" in his Facebook messages and on the
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controlled call as "corroborating evidence" to attempt to establish the
trustworthiness of his confession to law enforcement. § 92.565(3).
While some of Mr. Jackson's Facebook and controlled call
statements could themselves be inferred as "confession[s]" or
"admission[s]" to one of the charged offenses, they were not the
statements the State was seeking to admit as a "confession or
admission." See § 92.565(3).2 Mr. Jackson stated that his daughter had
"touched it," which ostensibly referred to his daughter touching his
penis. See § 800.04(5)(a) (providing that "lewd or lascivious molestation"
occurs when "[a] person who intentionally touches in a lewd or lascivious
manner the breasts, genitals, genital area, or buttocks, or the clothing
covering them, of a person less than 16 years of age, or forces or entices a
person under 16 years of age to so touch the perpetrator." (emphasis
added)). However, the State adduced that statement among others not
for the purpose of admitting them into evidence at trial but rather to
corroborate the memorialized confession it was seeking to admit into
evidence—his recorded confession to law enforcement. The trial court
should have considered the former in evaluating the trustworthiness of
the latter. Cf. State v. Lena, 819 So. 2d 919, 920–21 (Fla. 3d DCA 2002)
(holding the trial court erred in excluding a portion of the defendant's
statement because "[section 92.565] is only applicable to confessions or
admissions relating to a charged sexual abuse offense").
The corroborative statements included Mr. Jackson's statements
about his daughter's sexual involvement with other boys, his expression
2 Because the State was not attempting to admit them into evidence
pursuant to section 92.565, this court need not address the question of
whether they could constitute "memorialized confession[s] or
admission[s]" as that phrase is utilized in section § 92.565(2). (Emphasis
added.)
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of his arousal regarding his daughter's sexual encounters, his
encouragement to the woman that she let her boys see her genitals, and
his mention of the possibility of his daughter getting together with the
woman's two boys to engage in sexual activity. Those statements are not
confessions or admissions to the crimes charged. Moreover, even if they
were, they were not the "memorialized confession or admission" the State
was seeking to admit; the State was using them as corroboration. And
they do corroborate the trustworthiness of his confession to law
enforcement that the State was seeking to admit. It is less likely that Mr.
Jackson's confession was the product of confusion, incapacity, coercion,
mistake, or some motivation other than truth-telling when considering
that on other occasions—within recent temporal proximity to his
confession, no less—he made statements indicating a cavalier attitude
toward his young daughter's sexual activity and the sexual activity of
children generally and even entertained the idea of involving his daughter
in sexual acts with a potential paramour. His statements exhibited a
proclivity for involving his daughter in his own sexual gratification, which
tends to support that his subsequent confession to law enforcement that
he engaged in sexual conduct with his daughter was a trustworthy
statement admitting the truth of the accusation against him and not a
false confession motivated by fear or other influence. Cf. Chaparro v.
State, 873 So. 2d 631, 633 (Fla. 2d DCA 2004) (suggesting "[t]he primary
purpose behind the [corpus delicti] rule 'is to protect a defendant from
being convicted of a nonexistent crime due to "derangement, mistake or
official fabrication." ' " (quoting Baxter v. State, 586 So. 2d 1196, 1198
(Fla. 2d DCA 1991)). Thus, the State is correct that the trial court erred
by concluding it had not adduced sufficient evidence corroborating the
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trustworthiness of the confession that was the subject of Mr. Jackson's
motion in limine.
To the extent the State alternatively contends that it need rely on
nothing more than the confessions or admissions it seeks to admit in
order to satisfy the trustworthiness corroboration requirement of the
section 92.565(3), such a contention is unsupported by the language of
the statute. "[E]vidence" is required, and that evidence can be
"statements" made by the defendant—but not the confessions or
admissions themselves. See § 92.565(3) (emphasis added). While the
circumstances of the confession itself might be relevant indicia of its
trustworthiness, the substance of the statement constituting the
confession the State seeks to admit cannot be the corroboration required
of the statute—because something cannot corroborate itself. See
Hernandez, 946 So. 2d at 1276 ("[A] confession cannot corroborate
itself."). More is required under a statute that conditions the
admissibility of a defendant's confession on the sufficiency of
"corroborating evidence." See § 92.565(3).
Mr. Jackson misplaces reliance on this court's prior decisions in
Tumlinson, 224 So. 3d 766, and Geiger v. State, 907 So. 2d 668 (Fla. 2d
DCA 2005). In Tumlinson, the State made clear it was attempting to
introduce the defendant's journal entries and his recorded statements to
law enforcement into evidence at trial pursuant to section 92.565, both
of which contained admissions relating to the charged offense that he
made sexual contact with a child. 224 So. 3d at 767–68. Because there
was no evidence corroborating the trustworthiness of those statements
apart from the statements themselves, the court affirmed the trial court's
exclusion of the statements from trial. Id. at 770–71. Similarly, in
Geiger, the State sought to introduce statements made by the defendant
12
in a variety of contexts pursuant to section 92.565, in all of which he
made admissions relating to the charged offense. 907 So. 2d at 669–70.
Because the State presented no other evidence that established the
trustworthiness of the admissions it sought to introduce into evidence
other than the admissions themselves, this court reversed the trial
court's decision to admit the statements. Id. at 675–76. Unlike both
Tumlinson and Geiger, in this case the State relied on statements other
than those that constituted the confession to the charged offenses that it
sought to have admitted, and those other statements tended to
corroborate the trustworthiness of his confession to law enforcement. Cf.
Tumlinson, 224 So. 3d at 770 ("[N]othing apart from Tumlinson's journals
and oral and written statements—all of which the State sought to have
admitted—corroborates those statements." (emphasis added)); see also
Lena, 819 So. 2d at 920–21.
Because the State proved by a preponderance of the evidence that
statements made by Mr. Jackson via Facebook and on the controlled call
corroborated the trustworthiness of his recorded confession to law
enforcement, the trial court erred in granting Mr. Jackson's motion in
limine. The confession was admissible pursuant to section 92.565.
Accordingly, I would reverse the trial court's order and remand for
further proceedings.
Opinion subject to revision prior to official publication.
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