North FL’s Highest Court REVERSES Lewd or Lascivious Conviction Over Victim Text Messages

April 23, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Florida’s 1st District Court of Appeal reversed a defendant’s conviction for lewd or lascivious molestation, finding that text messages sent by the alleged victim were improperly introduced at trial by the State to “bolster” her credibility after she testified.

CASE: Goldtrap v. State, 115 So.3d 1025 (Fla. 1st DCA 2013)

Charge(s): Lewd or Lascivious Molestation

Outcome: Conviction REVERSED, as the alleged victim’s text messages were inadmissible at the defendant’s trial to “bolster” her credibility, yet were introduced anyway.

Hearsay and Child Hearsay in Florida

In Florida, hearsay is an out of court statement, document or record that is offered in court (e.g. offered into evidence) to prove that its contents are true. Hearsay is generally INADMISSIBLE in a court of law, though they are various exceptions to this rule.

Those “exceptions” – often referred to as hearsay exceptions – are statutory rules in Florida that allow the admission of hearsay in court even when it would otherwise be inadmissible under the general prohibition on hearsay. 

Some exceptions apply regardless of whether the declarant (speaker or author of the hearsay) is available to testify at trial (Fla. Stat. 90.803). Others only apply if the declarant is unavailable to testify (Fla. Stat. 90.804). 

Some of the most commonly relied upon hearsay exceptions under Fla. Stat. 90.803 include (Johnson v. State, 76 So.3d 1124 (Fla. 1st DCA 2012)):

• Present Sense Impression: Statement describing or explaining an event made while perceiving it or immediately after.
• Excited Utterance: Statement relating to a startling event made while under stress or excitement from the event.
• Then-Existing Mental, Emotional, or Physical Condition: Statement of current state of mind, emotion, sensation, or physical condition (e.g., intent, pain).
• Statements for Purposes of Medical Diagnosis or Treatment: Statement made for diagnosis/treatment describing medical history, symptoms, or cause.

Hearsay exceptions under Fla. Stat. 90.804, which allow the admission of hearsay only when the declarant is not available to testify and face cross-examination at trial, include:

• Former Testimony: Prior testimony given under oath in a proceeding or deposition where the opposing party had a similar motive and opportunity to develop it.
• Statement Against Interest: Statement so contrary to declarant’s own interest (e.g., penal, pecuniary, proprietary) that a reasonable person wouldn’t have said it unless true.
• Statement Under Belief of Imminent Death: Statement made while believing death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. (Death must be so close that the declarant proverbially heard “the beating wings of the angel of death.” People v. Sarzano, 212 N.Y. 231 (1914))

But there’s where things get a bit tricky. There are two types of hearsay – testimonial hearsay and nontestimonial hearsay. The rules governing the admission of each are slightly different. Per the U.S. Supreme Court’s Crawford v. Washington, 541 U.S. 36 (2004) decision, testimonial hearsay is INADMISSIBLE (even if it otherwise complies with an exception) unless:

• The declarant (speaker/writer of the hearsay) testifies at trial and the defendant has the opportunity to cross-examine them
• The declarant is unavailable to testify at trial, but the defendant had the prior chance to cross-examine them in a manner that satisfies Crawford (and the U.S. Constitution’s Confrontation Clause)

Testimonial hearsay is defined as a document/statement/record that is made for the PRIMARY PURPOSE of facilitating a law enforcement investigation or prosecution. Examples include:

• 911 calls reporting a crime days after it occurred
• A CPT (Child Protection Team) interview with an alleged minor abuse victim after a defendant has been arrested
• A written affidavit prepared at a police station

In all of the above cases, the “ongoing emergency” that prompted the hearsay is OVER. As a result, it is considered testimonial in nature. 

By contrast, nontestimonial hearsay is hearsay made for the primary purpose of responding to an ongoing emergency. Typical examples include:

• Dying declarations (e.g. someone saying “Tim shot me” as they bled out)
• 911 calls made during an ongoing criminal incident
• Initial disclosures by a child victim of physical or sexual abuse to a relative, friend, teacher, etc.

In the event that hearsay is determined to be nontestimonial, it is ADMISSIBLE in court even if the declarant is not available for testimony/cross-examination…so long as the hearsay complies with one of the listed hearsay exceptions under Florida law (90.803/90.804). For more on this, click here.

One of the most widely discussed hearsay exceptions in Florida is the child hearsay exception. This is codified under Fla. Stat. 90.803(23) – and allows the admission of a hearsay statement if all of the following conditions are satisfied:

• The child had a physical, emotional, or developmental age of 17 or less at the time the statement was made
• The statement describes any act of child abuse or neglect, sexual abuse against a child, the offense of child abuse or aggravated child abuse, or any unlawful sexual act, contact, intrusion or penetration performed on or in the presence of the child
• The statement and source through which it is reported are sufficiently trustworthy
• The time, content and circumstances of the statement provide sufficient safeguards as to its reliability

In the event that child hearsay is TESTIMONIAL in nature (e.g. a CPT interview), this remains admissible so long as the alleged child victim is made available for testimony/cross-examination at trial or in a 3.190(j) deposition to perpetuate testimony. For more, click here.

Per Cabrera v. State, 206 So.3d 768 (Fla. 1st DCA 2016), courts are to consider various factors when evaluating if child hearsay (e.g. a CPT interview or other post-abuse disclosure) is reliable and trustworthy enough to be admitted. These may include:

• The mental and physical age and maturity of the child who made the statement
• Nature and duration of the abuse or offense
• Relationship of the child to the offender
• Vagueness or specificity of the accusation
• Contradictions (if any) in the accusation
• Whether the child uses terminology expected of someone of their age

Another important, related rule governing the admission of hearsay (including child hearsay) is the prohibition on WITNESS BOLSTERING. This is codified under Fla. Stat. 90.801(2)(b). 

Per Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011), a child hearsay statement that would otherwise comply with the statute is INADMISSIBLE in court even if an alleged victim testifies when:

• The only purpose of admitting the statement is to bolster the credibility of the child’s testimony
• The defense has not alleged improper influence/that the child has developed a motive to fabricate the allegations between the time of the hearsay statement(s) and trial (THIS IS CRITICAL!)

This rule, which serves as a check on the unconstrained use of the child hearsay exception, was applied to TEXT MESSAGES sent by an alleged child victim in a major case heard by Florida’s 1st District Court of Appeal. 

Let’s take a look at that case – Goldtrap v. State, 115 So.3d 1025 (Fla. 1st DCA 2013) – and see what it means for defendants in Florida concerned about child hearsay.

KEY CASE: Goldtrap v. State, 115 So.3d 1025 (Fla. 1st DCA 2013)

In Goldtrap, the defendant (Goldtrap) was charged with and convicted of lewd or lascivious molestation on a child between 12 and 16 years of age. At trial, the following occurred:

• The alleged victim testified that she lived with Goldtrap, her uncle, who molested her on multiple occasions
• The alleged victim testified that after each incident, she texted her boyfriend to tell him what happened
• Goldtrap testified that the alleged victim was living with him and that he was a “strict disciplinarian,” and they began arguing in MARCH of 2011 
• Goldtrap said he and the alleged victim began arguing two or three days before he was arrested about a boy the alleged victim invited to Goldtrap’s home without his permission
• Goldtrap said he would no longer let the alleged victim live with him if she did not obey his rules
• Asserting the need to rebut an implied charge of fabrication by the alleged victim, the State moved to introduce the text messages between the victim, her boyfriend, and a church counselor concerning the alleged abuse in APRIL of 2011
• The defense objected, citing Fla. Stat. 90.801(2)(b)
• Nevertheless, the trial judge allowed the State to introduce the texts – and the boyfriend and counselor were also called as witnesses to corroborate the communications
• Goldtrap was ultimately convicted

On appeal, Goldtrap argued that the trial judge erred as a matter of law by admitting the text messages. Goldtrap asserted that any motive to fabricate would have arisen BEFORE the text messages were sent (e.g. when Goldtrap and the victim started arguing in March 2011). 

As a result, Goldtrap contended that the State could not permissibly introduce the texts (citing Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011)). The 1st DCA AGREED, REVERSING Goldtrap’s conviction and remanding for a new trial, and writing:

“Prior consistent statements, which normally would be inadmissible hearsay, are admissible if “offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication[.]” § 90.801(2)(b), Fla. Stat. (2011). To be admissible under section 90.801(2)(b), “the [consistent] statement must have been made ‘prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.’ ”Ortuno, 54 So.3d at 1088–89 …“A prior consistent statement is not admissible under section 90.801(2)(b) ‘merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial.’ ” J.B.J. v. State, 17 So.3d 312, 318 (Fla. 1st DCA 2009) (quoting Monday v. State, 792 So.2d 1278, 1280 (Fla. 1st DCA 2001)). “In general, prior consistent statements of a witness are inadmissible to corroborate or bolster the witness’ trial testimony.” 

“Here, Appellant explicitly raised a charge of fabrication by the victim, offering his strict parenting style, the broken relationship between himself and the victim, and their “ugly” argument as motives for falsely accusing him of molestation. Thus, the circumstances supporting a motive to fabricate arose as early as March 2011, when the victim moved in with Appellant and his family. Accordingly, only the consistent statement she made before that time-the first text message to her boyfriend during a weekend stay with Appellant-was admissible under section 90.801(2)(b). See Ortuno, 54 So.3d at 1088–89. Neither the text messages to the boyfriend after the victim moved in with Appellant, nor the April 2011 text message to the church counselor, should have been admitted as prior consistent statements; they served only to bolster the victim’s credibility. Because the victim’s testimony was the State’s only evidence against Appellant, the case turned on her credibility. As such, we cannot deem the trial court’s error in admitting the prior consistent statements harmless. Accordingly, we reverse Appellant’s conviction and remand for a new trial.”

Put simply, the 1st DCA found that because the victim’s alleged motive to fabricate likely arose BEFORE the texts were ever sent (due to the victim/Goldtrap fighting as early as March 2011), the texts from April could NOT be introduced to rehabilitate the alleged victim’s credibility. 

In sum, Goldtrap v. State, 115 So.3d 1025 (Fla. 1st DCA 2013) marks a significant development in Florida’s corpus of case law regarding admissibility of text messages in child abuse cases. The 1st DCA (Tallahassee and North FL’s highest court) found that:

• The victim’s text messages from April 2011 were inadmissible hearsay
• Because Goldtrap alleged a motive to fabricate that arose BEFORE the texts were ever sent, they could not be used by the State to “rehabilitate” the alleged victim’s credibility
• Per 90.801(2)(b), the use of the texts constituted improper witness bolstering
• Since the State did not prove the jury was NOT influenced by the introduction of the text messages, Goldtrap’s conviction required REVERSAL

Florida’s criminal defense community should take note of Goldtrap v. State, 115 So.3d 1025 (Fla. 1st DCA 2013), as it is a little-known yet defense-friendly case on the issue of admitting hearsay from alleged child victims.

If someone is arrested and formally charged in Florida in a case involving child hearsay, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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