Elghomari v. State
Annotate this Case
Download PDF
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2011
HAKIM ELGHOMARI,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D08-2597
[August 10, 2011]
ON MOTION FOR REHEARING
BLANC, PETER D., Associate Judge.
We grant Hakim Elghomari’ s motion for rehearing, withdraw our
previously issued opinion, and substitute the following in its place.
Hakim Elghomari appeals his convictions of three counts of sexual
battery and two counts of lewd molestation. Elghomari argues that the
trial court erred by: (1) admitting child hearsay statements; (2)
determining that the state did not commit a discovery violation; (3)
permitting the state to present charges which invited a non-unanimous
verdict; and (4) admitting testimony about changes in Elghomari’s sexual
relationship with the victim’s mother. We affirm.
BACKGROUND
Elghomari was charged by information with three counts of sexual
battery and two counts of lewd molestation for offenses committed
against his girlfriend’s daughter, who was seven years old. All offenses
were alleged to have occurred between May 1, 2007 and June 21, 2007.
On June 20, 2007, the victim’s day care provider informed the victim’s
mother that the victim had told other children at the day care that
Elghomari was abusing her. That night, the mother questioned the
victim, but the victim denied the abuse. When the mother confronted
Elghomari, he also denied abusing the victim. Elghomari brought the
victim to the police station, where she spoke with three male officers.
The victim told the officers that she had lied when she stated at day care
that Elghomari had abused her, and explained that he only gave her
“wedgies” and spanked her when she misbehaved.
On J u n e 22, 2007, Detective Lisa Martin of the Davie Police
Department conducted a videotaped interview with the victim at the
police station. In the car on the way to the police station, the victim told
Detective Martin that she understood the difference between the truth
and a lie and a good touch and a bad touch. During the interview, the
victim explained the vaginal, anal, a n d oral sexual a b u s e and
molestation by Elghomari with the aid of a body diagram. The victim told
Detective Martin that she had pain in her bottom and pain when she
urinated. Th e victim also explained that she had lied during her
previous statement to police because she did not want Elghomari to go to
jail. After the interview, Detective Martin took the victim to the Sexual
Assault Treatment Center. The nurse practitioner who examined the
victim testified at trial that she found no evidence of hymenal injury and
no injury around the anal area other than redness. She also explained
that the lack of injury did not mean that sexual abuse did not occur.
At trial, the victim’s testimony about the sexual abuse was similar to
the information which she had provided to Detective Martin. However, in
support of the two counts of lewd molestation, she also testified that
Elghomari molested her during two additional encounters when he forced
her to touch his genitals and he sucked on her breasts. The jury found
Elghomari guilty on all counts, and the trial court sentenced him to
concurrent terms of life imprisonment.
CHILD HEARSAY STATEMENTS
Elghomari first argues that the trial court erred by admitting a child
hearsay statement by the victim pursuant to section 90.803(23), Florida
Statutes (2009). He contends that the trial court’s factual findings were
inadequate1 and that the victim’s hearsay statement did not possess the
necessary degree of reliability.
We review b o t h a trial court’s
We reject the state’s position that Elghomari did not preserve this issue for
review because he failed to object to the lack of specific findings concerning the
reliability of the child hearsay statement. See Hopkins v. State, 632 So. 2d
1372, 1376 (Fla. 1994) (holding that defense counsel’s general objection to the
reliability of child hearsay statements necessarily encompassed the sufficiency
of the trial court’s findings as to that reliability under section 90.803(23) and
that defense counsel was not required to specify each finding of fact to which he
was objecting); see also Heuss v. State, 660 So. 2d 1052, 1056 (Fla. 4th DCA
1995). We also reject the state’s request to certify conflict with Elwell v. State,
954 So. 2d 104 (Fla. 2d DCA 2007).
1
2
determination that a statement is reliable under section 90.803(23) and
the sufficiency of the trial court’s findings of fact for a n abuse of
discretion. Ferreiro v. State, 936 So. 2d 1140, 1142 (Fla. 3d DCA 2006)
(citing Perez v. State, 536 So. 2d 206 (Fla. 1988)); Ingrassia v. State, 747
So. 2d 445, 447 (Fla. 4th DCA 1999).
Section 90.803(23), Florida Statutes, the child sexual abuse hearsay
exception, provides:
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 11 or less describing any act of child
abuse or neglect, any act of sexual abuse against a child, the
offense of child abuse, the offense of aggravated child abuse,
or any offense involving an unlawful sexual act, contact,
intrusion, or penetration performed in the presence of, with,
by, or on the declarant child, 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. In making its determination, the court may
consider the mental and physical age and maturity of the
child, the nature and duration of the abuse or offense, the
relationship of the child to the offender, the reliability of the
assertion, the reliability of the child victim, and any other
factor deemed appropriate; and
2.
a.
The child …
Testifies.
In State v. Townsend, 635 So. 2d 949 (Fla. 1994), the supreme court
analyzed the statute and explained that the exception requires that: (1)
the source of the information through which the statement was reported
must indicate trustworthiness; and (2) the time, content, and
circumstances of the statement must reflect that the statement provides
sufficient safeguards of reliability. Id. at 954. In addition, the supreme
court established a nonexclusive list of factors for the trial court to
3
consider in evaluating the reliability of a child’s out-of-court statement
under the statute:
the statement’s spontaneity; whether the statement was
made at the first available opportunity following the alleged
incident; whether the statement was elicited in response to
questions from adults; the mental state of the child when the
abuse was reported; whether the statement consisted of a
child-like description of the act; whether the child used
terminology unexpected of a child of similar age; the motive
or lack thereof to fabricate the statement; the ability of the
child to distinguish between reality a n d fantasy; the
vagueness of the accusations; the possibility of any improper
influence on the child by participants involved in a domestic
dispute; and contradictions in the accusation.
Id. at 957-58; see also Mikler v. State, 829 So. 2d 932, 935 (Fla. 4th DCA
2002). Additionally, once the trial court reviews the trustworthiness and
reliability of the statement, section 90.803(23)(c) expressly requires that
the court “make specific findings of fact, on the record, as to the basis for
its ruling.”
In the instant case, the state filed a notice of intent to introduce at
trial the child hearsay statement which the victim made to Detective
Martin. After a hearing, the trial court entered a thoughtful and detailed
order granting the state’s motion. In the order, the trial court stated that
it heard testimony by Detective Martin and reviewed the video recording
of the victim’s statement to Detective Martin and the sworn statement by
the victim’s mother before determining that the victim’s statement was
trustworthy and reliable. The trial court made several specific findings,
including that the victim “understands the difference between the truth
and a lie, right and wrong,” the “child’s description of events [was] in
response to generally open ended, non leading questions,” and the
“child’s description of the incidents utilized age appropriate language but
was significantly detailed and provided specific information that would
not otherwise be available to a typical seven (7) year old concerning sex
acts and bodily fluids.” The trial court weighed this evidence against the
victim’s initial statements to police and to her mother that Elghomari did
not abuse her. However, it determined that “those statements were made
at times when the Defendant was either present or nearby.” Thus, the
record shows the trial court made all requisite findings of reliability
under section 90.803(23) a n d set them out in detail, satisfying
subsection (c). Because the trial court complied with the statute and we
4
find no basis for rejecting its conclusions, we affirm its determination
regarding the admissibility of the child hearsay statement.
DISCOVERY VIOLATIONS
Elghomari also argues that the trial court erred when it determined
that the state’s failure to disclose a material change in the victim’s
testimony was not a discovery violation. The Florida Rules of Criminal
Procedure codify the state’s obligation to provide discovery to a defendant
in a criminal case. These discovery rules are designed to prevent
surprise and to facilitate a ‘“truthful fact-finding process.’” Scipio v.
State, 928 So. 2d 1138, 1144 (Fla. 2006) (quoting Kilpatrick v. State, 376
So. 2d 386, 388 (Fla. 1979)). The chief purpose of such discovery is to
prevent “‘trial by ambush.’” Bell v. State, 930 So. 2d 779, 785 (Fla. 4th
DCA 2006) (citation omitted).
In particular, Florida Rule of Criminal Procedure 3.220(b)(1)(B)
requires the state to disclose to the defendant “the statement of any
person” who is a witness pursuant to Rule 3.220(b)(1)(A). The type of
“statement” that must be disclosed by the state
includes a written statement made by the person and signed
or otherwise adopted or approved by the person and also
includes any statement of any kind or manner made by the
person and written or recorded or summarized in any writing
or recording. The term “statement” is specifically intended to
include all police and investigative reports of a n y kind
prepared for or in connection with the case, but shall not
include the notes from which those reports are compiled[.]
Fla. R. Crim. P. 3.220(b)(1)(B). Based upon the plain language of the
rule, the state is not required to disclose unrecorded oral statements.
Moreover, the supreme court, in State v. McFadden, 50 So. 3d 1131,
1133 (Fla. 2010), clarified that the state is not required to disclose to the
defendant a witness’s oral statement if the statement has not been
reduced to writing or recorded in a manner prescribed b y Rule
3.220(b)(1)(B). The supreme court, however, recognized the exception
that the state must disclose an ‘“oral statement [that] materially alters a
prior written or recorded statement previously provided by the State to
the defendant.’” Id. (quoting State v. Evans, 770 So. 2d 1174, 1180 (Fla.
2000)).
In the instant case, Elghomari claims that the state committed a
discovery violation when it described during its opening statement two
5
incidents of molestation that, although charged in the information, were
not previously referenced or identified in the victim’s statements provided
as part of the discovery process. The victim also testified about these two
incidents at trial when she described that Elghomari molested her by
forcing her to touch his genitals and by sucking on her breasts. The
incidents were not discussed in the videotaped interview by Detective
Martin or referenced in Detective Martin’s written report. Elghomari
claims that his counsel relied only upon the interview and the written
report to prepare for the victim’s deposition. Therefore, during the
deposition, Elghomari’s counsel did not specifically question the victim
about the molestation. Elghomari claims that the victim should have
disclosed the molestation in response to the following three questions:
(1) “Was there ever any other time where he touched you with his private
or put his private on you or in you?”; (2) “So that was it?”; and (3)
“Anything else you want to tell me?” The state responds that it did not
commit a discovery violation because the victim’s statement about the
molestation was oral and unrecorded and her answers to the above three
questions did not materially alter her previous statements. The state
also argues that Elghomari was not surprised at trial because the
information expressly charged him with two counts of lewd molestation
for touching the victim’s breast (Count IV) and for forcing the victim to
touch his genitals (Count V). The information was filed well before the
victim’s deposition and defense counsel had th e opportunity to ask
specific questions about those two counts.
We agree with the state that the trial court sufficiently inquired into
the alleged discovery violation and concluded that no violation occurred.
The record reflects that the victim revealed the two incidents of
molestation at a pre-filing conference and that the victim’s statement was
oral, not written or recorded. Even the defense attorney acknowledged
that the only way for the state to inform Elghomari about the unrecorded
statement would be the following: “They can write a memo. . . . They
could pick up the phone and call me. They can send an email.” Such a
process would be unnecessary if the state had in its possession a written
or recorded statement.
Elghomari further claims that the trial court erred by not inquiring
specifically of Detective Martin regarding the potential existence of an
undisclosed written or a recorded statement and relies upon Giles v.
State, 916 So. 2d 55 (Fla. 2d DCA 2005). However, the facts of Giles are
distinguishable from the instant case. In Giles, the prosecutor never
affirmatively stated that there was n o su c h written or recorded
statement, only that, “the State didn’t have access to that information.”
Id. at 57. The trial court’s inquiry confirmed simply that the prosecutor
6
had no knowledge of the existence of the written report, not that any
written or recorded version of the report did or did not exist. Id. Here,
the prosecutor was aware of the statement, referenced the molestation in
opening statement, and affirmatively asserted that the statement was not
written or recorded. The defense attorney accepted the prosecutor’s
assertion that the statement was not written or recorded and
acknowledged the difficulties in disclosing the unrecorded statement.
Because the trial court’s inquiry directly addressed whether the
statement was written or recorded, the instant case is unlike the inquiry
in Giles, which merely focused on the prosecutor’s awareness of the
written report.
Additionally, the limited exception described by the supreme court in
McFadden does not apply to this case. The victim’s failure to mention
the two incidents in response to defense counsel’s open-ended deposition
questions did not amount to a material change in testimony from the
videotaped interview with Detective Martin, Detective Martin’s report, or
the victim’s deposition. Because the victim’s unrecorded statement did
not materially change her previous testimony, the trial court ended the
inquiry and properly concluded that the state was not required to
produce the statement to Elghomari. See McFadden, 50 So. 3d at 1133
(“no discovery violation occurred here; therefore, there was no need for
the trial court to conduct a Richardson hearing”). Moreover, Elghomari
was put on notice of the molestation by virtue of the allegations within
Counts IV and V of the information. It may have been a better practice
for the state to indicate during the deposition that defense counsel had
overlooked the molestation in Counts IV and V, but its failure to do so
does not amount to a discovery violation. Accordingly, the trial court did
not err in determining that the state did not commit a discovery violation
under these circumstances. Having determined no discovery violation
occurred, we d o not address the state’s claim that the victim’s
statements at the pre-filing conference constitute work product.
NON-UNANIMOUS VERDICTS
Elghomari next claims that the trial court improperly allowed the
state to present charges which created the possibility of a nonunanimous jury verdict. Specifically, he alleges that because several
counts submitted to the jury were each supported by more than one
criminal episode, the jury verdict could be non-unanimous. He also
complains that the state further invited a non-unanimous verdict during
closing by stating that “even though he put his penis in her vagina more
than on e time, it’s only charged once, because it’s on one or more
occasion. So if you find it happened either the first time, or . . . the
7
second time, or . . . both, same verdict, guilty.” Elghomari raises this
issue as a fundamental error, as h e did not object to the charging
document or the state’s closing argument. However, the error was not
fundamental, a n d an y objection should have been raised at trial.
Whittingham v. State, 974 So. 2d 616 (Fla. 4th DCA 2008) (holding that
the state’s submission to the jury of several counts which included
multiple, distinct acts of sexual abuse against a child did not constitute
fundamental error and recognizing that, in a sexual abuse case, the state
may charge a defendant in a manner not permitted in other types of
criminal cases, including the expansion of time periods of the offenses
and the grouping together of types of offenses).
TESTIMONY BY VICTIM’S MOTHER
Finally, we find that the trial court abused its discretion in admitting
the irrelevant testimony by the victim’s mother regarding the weakening
of her sexual relationship with Elghomari around the time he abused the
victim. Nevertheless, the testimony was an insignificant part of the trial
and the state made only brief, isolated references to the testimony during
closing argument.
Therefore, we find that there is n o reasonable
possibility that the mother’s testimony contributed to the verdict, and the
admission of the testimony was harmless error. See State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986); see also Ventura v. State, 29 So. 3d
1086, 1090-91 (Fla. 2010).
Affirmed.
TAYLOR and CIKLIN, JJ., concur.
*
*
*
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael G. Kaplan, Judge; L.T. Case No. 07-11420
CF10A.
Carey Haughwout, Public Defender, and David John McPherrin,
Assistant Public Defender, West Palm Beach, for appellant.
Pamela J o Bondi, Attorney General, Tallahassee, a n d Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
