Elghomari v. State
2011 Fla. App. LEXIS 12643
| Fla. Dist. Ct. App. | 2011Background
- Hakim Elghomari was convicted of three counts of sexual battery and two counts of lewd molestation regarding his girlfriend’s seven-year-old daughter.
- Offenses occurred between May 1, 2007 and June 21, 2007.
- A day care report prompted the mother to question the victim, who initially denied abuse; later statements contradicted this denial.
- A June 22, 2007 videotaped interview with Detective Lisa Martin described alleged sexual abuse, with the victim later providing more detail.
- A Sexual Assault Treatment Center exam found no hymenal injury or bodily injuries, though lack of injury does not negate abuse.
- The jury convicted on all counts and the trial court sentenced Elghomari to concurrent life terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of the child hearsay statement | Elghomari argues the court erred by admitting the statement under 90.803(23). | Elghomari contends the court failed to make sufficient reliability findings. | Trial court properly admitted the statement; findings were adequate. |
| Discovery violation regarding unrecorded statements | State violated discovery by omitting two molestation incidents from written/recorded materials. | No discovery violation because the statements were oral/unrecorded and not material. | No discovery violation; trial court properly concluded no breach. |
| Non-unanimous verdict risk from multiple episodes | Charges grouped multiple episodes, enabling a non-unanimous verdict. | Allowing grouped counts is permissible in sexual abuse cases. | Not fundamental error; permissible charging and verdict approach. |
| Admissibility of testimony about the victim’s mother’s relationship | Mother’s testimony about the weakening of her sexual relationship was irrelevant and potentially prejudicial. | Testimony was improperly admitted but limited impact on verdict. | Admission was harmless error; no substantial impact on verdict. |
Key Cases Cited
- Ferreiro v. State, 936 So.2d 1140 (Fla. 3d DCA 2006) (reliability/sufficiency review for 90.803(23))
- Ingrassia v. State, 747 So.2d 445 (Fla. 4th DCA 1999) (reliability factors for child statements)
- Townsend v. State, 635 So.2d 949 (Fla. 1994) (reliability factors for child hearsay)
- Mikler v. State, 829 So.2d 932 (Fla. 4th DCA 2002) (nonexclusive reliability factors under 90.803(23))
- McFadden v. State, 50 So.3d 1131 (Fla.2010) (oral statements disclosure exception)
- Evans v. State, 770 So.2d 1174 (Fla. 2000) (oral statements disclosure rule exception)
- Giles v. State, 916 So.2d 55 (Fla. 2d DCA 2005) (distinguishes prosecutorial knowledge from existence of statements)
- Hopkins v. State, 632 So.2d 1372 (Fla.1994) (preservation/objecting to reliability findings)
- Heuss v. State, 660 So.2d 1052 (Fla. 4th DCA 1995) (challenge to child hearsay reliability findings)
- DiGuilio, 491 So.2d 1129 (Fla.1986) (harmless error standard)
- Ventura v. State, 29 So.3d 1086 (Fla.2010) (harmless error framework)