
    Willie GREEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 91-476.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1995.
    Nancy A. Daniels, Public Defender, and Carol Arm Turner, Asst. Public Defender, Tallahassee, for appellant.
    Robert A. Butterworth, Atty. Gen., and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

Willie Green, Jr. appeals his convictions, after jury trial, of lewd, lascivious or indecent assault upon a child, in violation of section 800.04, Florida Statutes, and sexual battery by slight force, in violation of 794.011(5), Florida Statutes. We reverse.

The record shows that the 14-year-old victim was mildly to moderately mentally retarded, functioning at a developmental level below the age of 11. According to the evidence, the victim reported to her sister and to her sister-in-law that Willie Green, her mother’s boyfriend, had committed sexual offenses against her. After the sisters reported her statements to the Department of Health and Rehabilitative Services (HRS), a Child Protection Team worker conducted a videotaped interview with the vietim. During the interview, the victim described certain sexual acts committed upon her by Willie Green. The victim was also examined by a Child Protection Team pediatrician who found that the size of her vaginal opening was consistent with some form of vaginal penetration.

In a deposition taken by defense counsel after Green’s arrest, the victim again implicated Green with statements about specific sexual offenses he had committed upon her. However, at trial, she recanted her earlier accusations against Green and stated instead that he had not committed those offenses against her and that she had never told anyone that he had. Thereupon, over defense counsel’s objection, pursuant to section 90.801(2)(a), the trial court allowed the state to read to the jury the victim’s deposition testimony. Also, after making extensive findings of reliability, pursuant to section 90.803(23)(a), the trial judge allowed the state to elicit from the sister and sister-in-law the accusations the victim had related to them concerning Willie Green and he allowed into evidence the videotaped interview.

The primary issues on appeal which we find necessary to address are whether the deposition testimony was admissible as substantive evidence, and if so, was the evidence in this ease sufficient to sustain appellant’s conviction.

We find that the deposition was admissible as substantive evidence. Section 90.801(2)(a), Florida Statutes, provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination, and the statement is inconsistent with her testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition. Clearly, the challenged deposition meets those requirements and was admissible evidence under that statute. In Moore v. State, 452 So.2d 559 (Fla.1984), the court declared:

We therefore hold that under section 90.801(2)(a), Florida Statutes (1981), the prior inconsistent statement of a witness at a criminal trial, if given under oath before a grand jury, is excluded from the definition of hearsay and may be admitted into evidence not only for impeachment purposes but also as substantive evidence on material issues of fact. We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence. Section 90.801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination. (Emphasis supplied.)

In considering the question of the sufficiency of the evidence, we recognize that the supreme court has qualified its determination that statements admissible pursuant to 90.801(2)(a) may be considered as substantive evidence by later ruling that a prior inconsistent statement, even one admissible pursuant to the above statute, does not constitute sufficient evidence to sustain a conviction when the prior inconsistent statement is the only substantive evidence of guilt. See State v. Moore, 485 So.2d 1279 (Fla.1986). In the instant case, the deposition testimony of the victim did constitute the sole substantive evidence not only of “guilt” but that a crime had been committed. Other admissible, corroborating hearsay evidence of guilt included the trial testimony of the sister and sister-in-law, as well as the videotaped statements of the victim, all of which we find were admissible and properly admitted in this case in accordance with section 90.803(23)(a), Florida Statutes. Nevertheless, the sole evidence appellant committed a crime was a single out-of-court statement of the victim said on three separate occasions. We have not disregarded the pediatrician’s testimony. However, the size of the vaginal opening being consistent with some form of vaginal penetration does not equate to proof of a crime.

We note that in Moore, supra at 1281, the court stated:

We agree that the risk of convicting an innocent accused is simply too great when the conviction is based entirely on prior inconsistent statements.

Recognizing the impact in cases of this type of our ruling in this case, we certify the following question to be one of great public importance:

WHEN AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE RECANTS AT TRIAL, DOES HER PRIOR INCONSISTENT STATEMENT, ADMISSIBLE PURSUANT TO SECTION 90.801(2)(a), FLORIDA STATUTES, CONSTITUTE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION WHEN THE ONLY OTHER EVIDENCE OF THE DEFENDANT’S GUILT IS OTHER PRIOR INCONSISTENT STATEMENTS MADE BY THE VICTIM, WHICH HAVE BEEN FOUND TO BE RELIABLE AND ARE ADMISSIBLE PURSUANT TO SECTION 90.803(23)(a), FLORIDA STATUTES?

We have considered the remaining issues raised by appellant and find them to be without merit.

REVERSED.

ERVIN, J., concurs and dissents, with written opinion.

MINER, J., concurs in part, and dissents in part, with written opinion.

ERVIN, Judge,

concurring and dissenting.

I dissent from that portion of Judge Bar-field’s opinion holding the victim’s deposition testimony admissible as substantive evidence pursuant to Section 90.801(2)(a), Florida Statutes (1989). In my judgment, the Florida Supreme Court’s decision in Moore v. State, 452 So.2d 559 (Fla.1984), concerning a construction of section 90.801(2)(a), should have no application to cases involving facts dissimilar from those in Moore. I understand Moore simply to say that section 90.801(2)(a) permits admission as substantive evidence of a prior inconsistent statement of a witness testifying at a criminal trial when the prior statement had been given under oath before a grand jury. No facts were before the court, as here, regarding whether a prior, inconsistent statement made during a discovery deposition, taken pursuant to Florida Rule of Criminal Procedure 3.220(h), but not in compliance with Florida Rule of Criminal Procedure 3.190(j), which governs the procedure for taking depositions for the purpose of perpetuating testimony, is admissible at trial as substantive evidence.

I am fully aware that section 90.801(2)(a) provides that a sworn, out-of-court statement inconsistent with the declarant’s trial testimony is not hearsay if its declarant testifies at trial and is subject to cross-examination. Nevertheless, I consider that the same judicial rule which bars the use of discovery depositions as substantive evidence, when such depositions are introduced as an exception to the hearsay rule under Section 90.804(2)(a), Florida Statutes, is equally applicable to exclude the similar use of prior, inconsistent statements obtained during a discovery deposition, if offered for admission under the provisions of section 90.801(2)(a). A summary of pertinent Florida ease law offers strong support to this conclusion.

In State v. James, 402 So.2d 1169 (Fla.1981), the supreme court broadly stated that discovery depositions are not admissible as substantive evidence absent compliance with rule 3.190(j), and based its holding not on any perceived violation of the confrontation clause, but on certain language of rule 3.220(h), providing that discovery depositions “may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.” Thus, the court interpreted the rule as precluding the use of discovery depositions at criminal trials for any purpose other than for impeachment or contradiction. The James decision was recently reaffirmed by the Florida Supreme Court in Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992), wherein the court, in refusing to extend the rule which allows the use of discovery depositions as substantive evidence in civil eases to criminal cases, noted that because the rules of civil procedure do not provide an exception to the common law rule excluding depositions as hearsay, the evidence code may provide such an exception in civil proceedings. Id. at 498. The court continued, however, that a similar result was not warranted in criminal cases “because greater latitude for the use of depositions in civil eases exists by virtue of Rule of Civil Procedure 1.330 which is much broader than the Rules of Criminal Procedure that provide for the use of deposition testimony.” Id. See also Smith v. State, 606 So.2d 641, 644 (Fla. 1st DCA 1992); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990), approved in part, quashed in part, 614 So.2d 453 (Fla.1992); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986); Jackson v. State, 453 So.2d 456 (Fla. 4th DCA 1984).

I recognize that all of the above cases involved attempts to admit discovery depositions as substantive evidence under section 90.804(2)(a) and not, as here, pursuant to section 90.801(2)(a). I also recognize that in each of the above cases the witness who gave the deposition testimony was unavailable for trial, unlike the child victim at bar. Yet, the rationale of the above decisions applies equally to the issue of whether a discovery deposition is admissible as substantive evidence under section 90.801(2)(a). The above eases hold the provisions of rule 3.220(h) authorize the use of discovery depositions for the explicit purpose stated therein: to impeach or contradict, but for no other purpose. If the rules of criminal procedure do not provide a basis for the admission as substantive evidence of discovery depositions, then application of the common law forbids their use for such purposes. At common law, a declarant’s prior, inconsistent statements were held generally inadmissible as substantive evidence and were limited in their use for impeachment purposes. See Thomas v. State, 289 So.2d 419 (Fla. 4th DCA 1974).

In reaching the conclusion that an inconsistent statement given during a discovery deposition is not admissible as substantive evidence at trial, I recognize that there are strong and practical arguments to the contrary, and particularly so when the declarant is available at trial for cross-examination:

The major reason for excluding hearsay evidence is the lack of the opportunity to cross-examine the declarant under oath before the jury concerning the statement. Under section 90.801(2), prior inconsistent statements are admissible only when these requirements are met. The requirement of a formal proceeding and an oath provides additional assurances of reliability. Therefore, the reasons for the exclusion of hearsay evidence are absent. Furthermore, if a prior statement is admissible only to impeach, when the jury does not believe the declarant’s explanation that he did not make the prior statement, and they find it to be true, it is unreasonable to expect them to limit the use of the statement only to assessing credibility. If the jurors find that, in fact, the prior statement was made and was true, it is difficult, if not impossible, for them not to consider it.

Charles W. Ehrhardt, Florida Evidence § 801.7, at 559 (1993 ed.).

Despite the logic of the above comments, the reasoning used by the Florida Supreme Court in Rodriguez for excluding discovery depositions as substantive evidence when the strictures of rule 8.190(j) have not been complied with does not appear to me to turn on the question of the availability or nonavailability of the declarant, but rather on the impeachment/eontradiction limitation in rule 3.220(h). In view of the Rodriguez rationale, it is difficult for me to believe that a different rule would apply to permit the use as substantive evidence of a discovery deposition which includes a prior inconsistent statement given by the declarant who is also available as a witness at trial. Until the Florida Supreme Court adopts the same position as have the federal courts, allowing the use of discovery depositions as substantive evidence in criminal trials pursuant to the parallel provisions of the Federal Evidence Code, see United States v. Steele, 685 F.2d 793, 808 (3d Cir.), cert. denied, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982), I feel bound to follow case law which I consider bars such use in Florida criminal trials.

I am therefore constrained to dissent from that portion of Judge Barfield’s opinion holding the discovery deposition of the child victim admissible as substantive evidence. I agree, however, with that part of his opinion holding that if the deposition were properly admissible for such purpose, it does not constitute sufficient evidence to sustain the conviction, as the prior, inconsistent statement was the only substantive evidence of guilt.

I would, however, certify the following additional question to the Florida Supreme Court as one of great public importance:

DOES THE DECISION IN RODRIGUEZ v. STATE, 609 So.2d 493 (FLA.1992), EXCLUDING THE USE AS SUBSTANTIVE EVIDENCE OF DISCOVERY DEPOSITIONS THAT ARE SOUGHT TO BE ADMITTED UNDER SECTION 90.804(2)(a), FLORIDA STATUTES, EXTEND TO BAR THE ADMISSION OF DISCOVERY DEPOSITIONS OFFERED AS EVIDENCE UNDER SECTION 90.801(2)(a), FLORIDA STATUTES, PERTAINING TO A PRIOR, INCONSISTENT STATEMENT OF A DE-CLARANT WHO IS AVAILABLE AND SUBJECT TO CROSS-EXAMINATION AT TRIAL?

MINER, Judge,

concurring in part, dissenting in part.

I concur in that part of Judge Barfield’s opinion finding the discovery deposition of the child victim admissible as substantive evidence of guilt. For the following reasons, however, I would affirm appellant’s convictions.

The Department of HRS was initially alerted to the possible sexual abuse of M.K. upon notification by M.K.’s sister and sister-in-law, probably at some point" in June of 1990. Appellant was charged by information filed July 27, 1990, and entered a plea of not guilty to the charges against him on August 2, 1990. An amended information was filed November 28,1990. By affidavits sworn December 27, 1990, and filed January 4, 1991, M.K.’s mother stated that M.K. denied that appellant had sexually abused her, and M.K., herself, denied that appellant had sexually abused her. M.K. admitted that she had earlier accused appellant of abusing her but said that she made her earlier statements at the behest of her sister-in-law.

On September 21, 1990, defense counsel took the deposition testimony of M.K. Appellant was not present for this deposition. At trial, relevant portions of this deposition were submitted and read into evidence by the state. Upon defense counsel’s question, M.K. stated that while watching television appellant pulled on her arm and asked if she wanted to do something, to which M.K. responded “No.” Appellant then pushed M.K. onto the bed, “pulled his clothes down,” and “pulled her clothes down.” On what appears to have been a separate occasion, appellant came into the bathroom when M.K. was bathing and “pulled his clothes down.” On yet another occasion, appellant pushed M.K. onto her brother’s bed and “touched me between the legs.” At another point in the testimony, M.K. was asked if appellant “put a part of his body inside (her), between her legs?” M.K. said “He tried to.”

After a pretrial hearing as to the admissibility of hearsay statements pursuant Section 90.803(23)(a), Florida Statutes, the sister and sister-in-law testified at trial that M.K. had told each of them on separate occasions that appellant had perpetrated some form of sexual abuse against her. The victim’s sister testified that M.K. told her that appellant at some point had sexual contact with her at her mother’s home. The victim’s sister-in-law testified that M.K. told her and the sister that appellant had put his hand in her panties and had had sex with her.

HRS case coordinator Julie Draughon testified that she was first assigned to the investigation on June 25,1990, and met with M.K. and a supervisor at the office of Dr. Without. Dr. Wilhout examined M.K. but stopped short of a genital examination when M.K. became upset and reluctant to submit to such examination. Draughon took M.K. back to the office of the child protection team where she conducted a disclosure interview which was videotaped (without M.K’s knowledge) that same day. Draughon explained that the purpose of the interview is to elicit facts pertaining to the allegations, make an assessment of the credibility of the child’s statements, and to recommend treatment. Feeling that M.K.- might be more comfortable with a female physician, Draughon scheduled an appointment with Dr. Seay on June 28, 1990. On cross-examination by defense counsel, Draughon stated that she had performed approximately thirty disclosure interviews. Defense counsel asked whether Draughon had ever concluded that sexual abuse had not occurred. Draughon stated that there was one instance still under investigation where she might consider it a possibility that sexual abuse did not occur. Drau-ghon then added:

But in most cases, when a child provides disclosure, it is a truthful disclosure. There are not a lot of reasons for a child to take by ...

Draughon was interrupted at that point by defense counsel.

In a direct response to another question posed by defense counsel, Draughon later reiterated that it is part of her job to assess the credibility of the alleged victim, and there are certain factors that do enhance credibility. On redirect examination, Drau-ghon specified the following factors: multiple incidents over a period of time; progression of intimacy; disclosure to significant others; wilful disclosures to other people; corroborating medical evidence; and suppression of disclosure. Draughon further explained that a “suppression phase” or “recantation” may follow disclosure. Defense counsel’s objection to this line of questioning was overruled on the ground that defense counsel had opened the door to such questioning.

Dr. Mary Seay testified as to the results of her genital examination of M.K. Dr. Seay asked M.K. if she had begun menstruation and was told that she had. Dr. Seay also asked M.K. if she had used any form of insertable material, such as tampons, to deal with her menstrual bleeding and had been told that she had not. Dr. Seay opined that the size of the vaginal opening was larger than you would normally see, given that context. Dr. Seay opined that this observation was consistent with “some form of vaginal penetration — I don’t think it’s specifically diagnostic, but I think it is certainly consistent.”

After Dr. Seay’s testimony, the trial court sua sponte (and outside the presence of the jury) expressed the concern that Ms. Drau-ghon’s testimony may have come close to an impermissible opinion as to the truthfulness of the victim’s accusations which is a matter within the province of the jury. See Tingle v. State, 536 So.2d 202, 204-205 (Fla.1988). After consultation with counsel, the trial judge instructed the jury that they have the sole responsibility of determining the credibility of the witnesses in the case.

In State v. Moore, 485 So.2d 1279 (Fla.1986), the supreme court held that in a criminal prosecution, a prior inconsistent statement, standing alone, is insufficient to prove guilt beyond a reasonable doubt. In Moore, the only evidence of guilt was a prior inconsistent inculpatory statement elicited from the state’s witnesses in a grand jury proceeding without opportunity for cross-examination by the defendant. Three Justices adopted the opinion of the court, while a fourth, Justice Overton, concurring specially, opined that “it would be a different issue if the prior inconsistent statements were from a proceeding in which the defendant had had an opportunity to confront and cross-examine the witnesses.” Id. at 1282. In light of the concurring opinion of Justice Overton, I am of the view that the rule articulated in Moore does not apply where the prior inconsistent inculpatory statement was elicited in a proceeding where the defendant’s right of confrontation was honored.

In the present case, the September 21, 1990, deposition testimony was taken by defense counsel. Accordingly, appellant, who had full opportunity to question M.K. through counsel at the deposition and an additional opportunity to cross-examine M.K. at trial should not be heard to claim, under Moore, that such testimony, though inconsistent with M.K.’s exculpatory trial testimony is insufficient to support his convictions. Though M.K.’s deposition testimony does not expressly state that appellant perpetrated a sexual battery upon M.K., it is certainly specific enough to support appellant’s conviction on the lesser charge of lewd, lascivious or indecent assault. On this basis I would affirm appellant’s conviction on the charge of lewd, lascivious or indecent assault.

As to the sexual battery charge, the damaging testimony of sexual battery was given by the victim in the videotaped disclosure interview with Ms. Draughon and introduced into evidence through Draughon’s testimony. In the interview, M.K. indicated that appellant at some point pulled her clothes off and touched her private (vagina) with his private (penis). In response to a question, M.K. indicated that appellant touched her on the “inside of her private.”

Appellant did not have the opportunity to confront or cross-examine M.K. during the disclosure interview. Under Moore, this prior inconsistent inculpatory testimony, standing alone, is insufficient to support a conviction for sexual battery. If the prior inconsistent statement is corroborated by other competent evidence, however, appellant’s conviction on this charge may stand. Chambers v. State, 504 So.2d 476 (Fla. 1st DCA 1987). In concluding that the case against appellant lacked competent corroborating evidence to support appellant’s conviction, Judge Barfield discounts the pediatrician’s testimony, noting that where the size of the vaginal opening is consistent with some form of vaginal penetration, such evidence “does not equate to proof of a crime.” In so stating, I believe Judge Barfield misapprehends the meaning of the term “corroborating” evidence and thereby misapplies the rule articulated in Moore. Evidence need not “prove” or “equate to proof’ of the commission of a crime in order to qualify as “corroborating” evidence. “Relevant” evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla.Stat. “Corroborating” evidence, as acknowledged by Judge Barfield in Duffy v. Brooker, 614 So.2d 539 (Fla. 1st DCA 1993), is additional or supplemental information which tends to strengthen a factual assertion previously in evidence. Id. at 545, citing The American Heritage Desk Dictionary (1981) and Black’s Law Dictionary, Fifth Edition (1979). Thus, where Dr. Seay testified that the size of the victim’s vaginal opening was consistent with some form of penetration, and particularly where the victim stated in the clinical setting that she had not used any form of insertable material, such as tampons, the physician’s testimony tends to strengthen the victim’s videotaped testimony and the jury may have properly inferred that the size of the vaginal opening constituted additional evidence of sexual battery.

In addition, under prior case law, the testimony of Ms. Julie Draughon, the child protection team case coordinator, was sufficient to constitute corroborative evidence of guilt. In State v. Townsend, 635 So.2d 949, 958 (Fla.1994), the Florida Supreme Court held that if relevant, a medical expert witness may testify as to whether, in the expert’s opinion, the behavior of a child is consistent with the behavior of a child who has been sexually abused. Ms. Draughon testified that in her experience, the victim’s disclosure of sexual abuse is usually a truthful one. No objection was raised to this testimony. Ms. Draughon later testified that certain factors such as progression of intimacy, disclosure to significant others, corroborating medical evidence, and suppression of disclosure (recantation), enhance the credibility of the child victim. Draughon’s testimony served to corroborate the inculpatory videotaped testimony of the child victim. Thus, the inculpatory evidence of sexual battery was corroborated by the testimony of both Dr. Seay and Ms. Draughon. The evidence presented was sufficient to send the question of appellant’s guilt to the jury, consistent with the rule articulated in Moore. I would affirm appellant’s conviction for sexual battery, as well. 
      
      . Note the commentary to section 90.801(2)(a), Florida Statutes, which states:
      Paragraph (a) This paragraph excludes from the definition of hearsay certain out-of-court statements by a witness who testifies at the trial or hearing and is subject to cross-examination. Since the declarant is in court and may be cross-examined in regard to the statement, the dangers inherent in hearsay testimony are minimized. See 5 Wigmore, Evidence 1361-1362 (3rd ed. 194). The prior statement may be used as substantive evidence. It is unrealistic to believe that a jury properly discriminates when told to accept certain evidence as bearing only on the credibility of the witness. The prior statement may be more reliable than the present testimony.
      As Dean Ladd stated in Ladd, Some Highlights of the New Federal Rules of Evidence, 1 Fla.St.U.L.Rev. 191, 200 (1973):
      The ... rule is sound in reason and is practical and realistic. The witness who perceived the events in issue is present in court and has given testimony of those events under oath. If he admits making the inconsistent statement, he has the opportunity to explain it. If his explanation is not acceptable to the triers of fact, they may use what he admitted to be a prior inconsistent statement to discredit his testimony. If the triers of fact believed the witness spoke the truth in the prior statement that he admitted making, it is not reasonable to expect the triers to limit its use to credibility in their decision-making process regardless of a court’s in-strucfion that it may be used to discredit but not to prove. The mental gymnastics required to articulate and segregate the use of prior statements for impeachment purposes only makes the limitation rule a formalistic fiction in disregard of realism.
      See also the commentary on the 1978 amendment to 90.801(2)(a), which relates:
      Subsection (2) (a) This subsection was amended to exclude from the definition of hearsay statements made by a witness who testifies and is subject to cross-examination when the statements are inconsistent with the testimony of the witness and were given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition. This amendment adopted the view of Fed.Rule Evid. 801(d)(1)(a) and restricted the prior inconsistent statements of a witness which are admissible as substantive evidence to those made under oath. There is no requirement that the party against whom the statements are offered had an opportunity to cross-examine at the time that the prior statements were made. In criminal cases, confrontation problems may arise when this evidence is offered against the defendant. Compare California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, on remand 3 Cal.3d 981, 479 P.2d 998, 92 Cal.Rptr. 494 (1970) with State v. Basiliere, 353 So.2d 820 (Fla.1977). [In the instant case, the defense attorney conducted the deposition and thus had ample opportunity to confront the witness at the deposition as well as at trial.]
     
      
      . See Chambers v. State, 504 So.2d 476, 478 (Fla. 1st DCA 1987).
     
      
      . We need not consider whether Ms. Draughon, who possesses a master's degree in social work, qualified as an expert medical witness, either because her testimony was not objected to or because the trial court properly ruled that defense counsel had opened the door to the testimony. Cf. Tingle v. State, 536 So.2d 202, 205 (Fla.1988) (social worker qualified as expert on child sexual abuse without objection); Anderson v. State, 642 So.2d 109 (Fla. 1st DCA 1994) (affirming conviction for lewd and lascivious assault upon a child where hearsay statements admitted despite lack of finding of reliability required by Section 90.803(23), Florida Statutes, child victim deemed not competent to testify, but defense counsel failed to object to hearsay testimony).
     