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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