Jermaine Henderson v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
JERMAINE HENDERSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2024-2188
[April 8, 2026]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward 	County; 	Michael 	Usan, 	Judge; 	L.T. 	Case 	No.
062022CF003824A88810.
Daniel Eisinger, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.
James Uthmeier, Attorney General, and Nathan Andrew Forrester,
Chief Deputy Solicitor General, Tallahassee, and Rachael Kaiman, Senior
Assistant Attorney General, West Palm Beach, for appellee.
FORST , J.
Appellant 	Jermaine 	Henderson 	appeals 	his 	convictions 	and 	life
sentences for two counts of armed sexual battery, arguing the admission
of certain out-of-court statements through a different witness violated the
hearsay rule and his rights under the Sixth Amendment’s Confrontation
Clause. 	While we agree the admission of the statements was error, we
affirm because the error was harmless beyond a reasonable doubt. 	We
affirm all other issues without discussion.
Background
The following was established by evidence at trial.
The Victim was a sixteen-year-old student in tenth grade. 	As she
walked home from school, Henderson called out to her, complimented her
shoes, and asked if she ran track. 	The Victim testified that Henderson
then led her to the back of his truck, held a box cutter to her ankle and

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neck, said, “if you don’t run, if you don’t scream, you won’t get hurt,” and
sexually battered her vaginally and anally. 	She testified this was very
painful, especially vaginally.
The Victim went home, took a shower, and realized she was bleeding.
She collected some blood on a napkin, put it in a plastic bag, and later
provided it to law enforcement. 	When her mother got home, she told her
what had happened. 	They first went to the hospital, and then the Victim
went with law enforcement officers to the approximate location of where
the battery had occurred. 	She was then directed to a sexual assault
center, which performed a rape kit examination. 	She testified that the
center swabbed her vagina for DNA but she could not remember if they
swabbed her anal area.
The Victim’s mother testified. 	Her testimony confirmed the broad
details of the Victim’s account, including that she underwent a vaginal
exam and provided a plastic bag with a bloody tissue to the police.
A police detective confirmed that she took the Victim to the sexual
assault center and a rape kit examination was conducted. 	She testified
that officers submitted the rape kit to Lauderhill Property and Evidence,
which in turn submitted it to the Broward Sheriff’s Office Crime Lab.
Henderson did not object to any of this testimony.
The detective further testified that she followed up on the Victim’s
identification of the crime scene by obtaining a surveillance video from a
neighboring house. The video depicts Henderson encountering the Victim,
but does not show the criminal acts, as the two walk off camera. 	The
detective used a license plate reader and the timestamps on the video to
identify a white pickup truck that passed a nearby intersection near the
time of the interaction with the Victim. 	Further investigation linked
Henderson to the truck. 	The detective compared Henderson’s driver’s
license photo with the surveillance video and, consequently, Henderson
was identified as a suspect.
The detective created a photo lineup which another officer presented.
The Victim identified Henderson as her assailant in the lineup. 	Officers
arrested Henderson and conducted a recorded interview at the police
station. 	In the interview, Henderson explained that he uses the white
truck for work and had the vehicle on the day at issue. At first, he denied
knowing 	what 	officers 	were 	referring 	to 	when 	they 	mentioned 	an
interaction with a high school student. 	Confronted with more allegations
and evidence, Henderson changed his story and admitted to encountering
the Victim, complimenting her shoes, and engaging in sexual conversation.

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When officers claimed they had DNA evidence, Henderson responded that
the Victim had grabbed his penis and then “fingered” herself as he was
“peeing” in a bottle “a little erected.” 	Henderson claimed the Victim was
“flirty,” “forward,” grabbed him, and asked him to put his finger in her
vagina, which he refused. 	This interrogation was played for the jury.
At trial, the State also presented testimony by a DNA analyst. 	The
analyst testified that she received evidence in this case consisting of
vaginal, external vaginal, perianal, buttocks, control, and buccal swabs
from the Victim, and buccal swabs from Henderson. 	She testified that no
male DNA was detected in the vaginal and external vaginal swabs, but the
perianal 	swabs 	provided 	very 	strong 	support 	for 	the 	presence 	of
Henderson’s DNA (the sample was 5.88 billion times more likely to be
explained by the Victim and Henderson than the Victim and an unknown,
unrelated individual), and the buttocks swabs provided moderate support
for the presence of Henderson’s DNA (the sample was 7,400 times more
likely to be explained by the Victim and Henderson than the Victim and
an unknown, unrelated individual).
The State further presented testimony by a Williams1 Rule witness—
another then-sixteen-year-old girl whom Henderson had approached on
the same day. 	The witness testified that a white pickup truck pulled up
to her as she was walking home from school and the driver asked if she
ran track. 	She said no and tried to cross the street, but the car followed
her and pulled into a driveway. The man asked if he could show her a foot
“trick” to help her run better, and she said “okay,” so he took off her left
shoe and sock, put her foot on his face, and he caressed her foot. She said
she told the man that she needed to go home, but he asked for her number,
so she gave him a fake name and number, called a friend while leaving,
and made sure the man went the other way. 	The witness said that she
immediately told her mother what happened, and this information was
then disclosed to the witness’s grandmother. 	The witness added that a
few 	days 	later, 	a 	photo 	of 	the 	man 	was 	on 	the 	TV 	news 	and 	her
grandmother asked if that was the man with whom she had had the
encounter; she recognized him from the news photo and said yes. 	Her
mother called the police and the witness told law enforcement what
1 Williams v. State, 110 So. 2d 654 (Fla. 1959). See also Barnett v. State, 151 So.
3d 61, 63 (Fla. 4th DCA 2014) (“Similar fact evidence of other crimes, wrongs, or
acts is admissible when relevant to prove a material fact in issue, including, but
not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, but it is inadmissible when the
evidence is relevant solely to prove bad character or propensity.” (quoting
§ 90.404(2)(a), Fla. Stat.)).

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Henderson did to her.
The State admitted into evidence, and discussed with the witness, the
text exchange between the witness and her mother on the day after the
encounter, in which the witness asked her mother to pick her up from
school, her mother responded “you better not let anyone play with your
feet today,” the witness said, “that was an accident,” and her mother
responded she can’t pick her up because she has a scheduled medical
procedure, but “seriously, call me if you see the truck or van today.” 	The
witness identified Henderson in court as the man with whom she had had
the subject encounter.
The 	State 	additionally 	presented 	expert 	testimony 	by 	a 	nurse
practitioner from the sexual assault center (“Nurse”). 	Nurse testified that
she was not the person who examined the Victim. 	She then proceeded to
quote extensive portions of the Victim’s sexual assault report, prepared by
a 	different, 	non-testifying 	examiner, 	over 	defense 	counsel’s 	hearsay
objection. 	The State did not move the report into evidence. 	Asked where
the Victim was swabbed and whether she had injuries, Nurse testified that
“based on the report,” the sexual assault center performed buccal, vaginal,
buttocks, and anal swabs on the Victim, and the Victim had a cut on part
of her vagina that was bleeding. 	Nurse further testified that the Victim
had no other injuries and that this “is normal” based on her training and
experience. 	Nurse then had the following exchange with defense counsel:
[Defense counsel]: So without you reading the report that’s in
front of you, right, do you know the person’s age?
[Nurse]: Without reading the report?
[Defense counsel]: Yeah, without reading it.
[Nurse]: Without the report, I would not know the patient.
[Defense counsel]: Okay. 	Without this report, do you know
anything about this case? 	Like do you have --
[Nurse]: Not to my immediate recollection.
[Defense counsel]: Okay. 	You don’t have an independent
knowledge of any of these things that you testified to?
[Nurse]: Only from the report.

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Henderson elected not to testify. 	The State mentioned the Victim’s
vaginal 	injury 	in 	closing 	and 	rebuttal 	to 	counter 	defense 	counsel’s
argument that no male DNA was found on the vaginal swab. 	The jury
convicted Henderson on both counts of armed sexual assault: one for
vaginal penetration or union, the other for anal penetration or union. The
trial court imposed two consecutive life sentences. 	This appeal follows.
Analysis
A trial court’s decision on the admissibility of evidence is reviewed for
an abuse of discretion, as limited by the rules of evidence. Helms v. State,
271 So. 3d 1030, 1033 (Fla. 4th DCA 2019). 	“However, whether evidence
falls under the statutory definition of hearsay or is admissible under an
exception to the hearsay rule are questions of law reviewed de novo.” 	Id.
Much of Nurse’s Testimony was Inadmissible Hearsay
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” 	§ 90.801(c), Fla. Stat. (2023) 	“Except as provided
by statute, hearsay evidence is inadmissible.” 	§ 90.802, Fla. Stat. (2023).
Written reports are statements within the meaning of the
hearsay rule. 	A party may not evade the hearsay rules by
having the witness summarize the statement rather than relay
the statement verbatim. 	Although an expert may rely on
hearsay 	in 	reaching 	the 	expert’s 	opinion, 	an 	expert’s
testimony 	may 	not 	merely 	be 	used 	as 	a 	conduit 	for 	the
introduction of the otherwise inadmissible evidence.
Tolbert v. State, 114 So. 3d 291, 293–94 (Fla. 4th DCA 2013) (citations and
quotation marks omitted), rev. denied, 122 So. 3d 870 (Fla. 2013). 	In
Tolbert, we held that a witness’s testimony was inadmissible hearsay
where she testified that she lacked personal knowledge of the underlying
testing and was instead relying on and summarizing another declarant’s
report. 	Id. at 294. 	However, we determined the error in that case was
harmless because the hearsay testimony did not directly implicate the
defendant (it only explained why the witness re-tested the victim’s DNA
sample), 	while 	other 	independently 	admissible 	parts 	of 	the 	witness’s
testimony were more important. 	Id. at 295.
Similarly, here, Nurse’s recounting of the sexual assault report was
inadmissible hearsay. 	Virtually every time Nurse was asked a question,
she began by stating that she was reading her answer from the report.

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Indeed, she agreed with defense counsel that she had no “independent
knowledge of any of these things” and would not know anything about this
patient or case without referencing the report. 	As Nurse was acting as a
mere conduit for the hearsay statements in the report, her testimony
recounting the report’s contents was inadmissible hearsay.
Specifically, the pieces of evidence that should not have been admitted
were: (I) the sexual assault report’s clinical description of the Victim’s
vaginal injury and bleeding; and (II) the report’s description of which of the
Victim’s body parts were swabbed. 	Nurse read these observations of
physical phenomena verbatim from the report. In contrast, her statements
about the clinic’s ordinary procedures and her own expert opinions (such
as whether injuries are typical and how frequently they are seen) were
admissible.
The Business Records and Medical Diagnosis Exceptions do not
Apply
On appeal, the State argues the testimony falls under the hearsay
exceptions for certified business records or statements made by a person
seeking medical treatment or diagnosis. 	See § 90.803(4), (6), Fla. Stat.
(2023). 	These arguments lack merit.
“While the business records exception to the hearsay rule allows the
admission of a memorandum, report, record, or data compilation, it does
not authorize hearsay testimony concerning the contents of business
records which have not been admitted into evidence.” 	Helton v. Bank of
Am., N.A., 187 So. 3d 245, 247 (Fla. 5th DCA 2016) (quoting Thompson v.
State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998)). A witness’s testimony
regarding the contents of a business record not in evidence is inadmissible
hearsay. 	Id. 	Here, because the sexual assault report was never admitted
into evidence, the State cannot rely on the business records exception as
a basis for the report’s admissibility. 	See also Cardona v. Nationstar
Mortg., LLC, 174 So. 3d 491, 493 (Fla. 4th DCA 2015) (“Because the
business records were not introduced into evidence, the trial court erred
by overruling the homeowners’ hearsay objection.”).
The medical treatment or diagnosis exception does not apply because
the sexual assault report in question consists of statements by the medical
examiner, not the patient. See Harris v. State, 37 So. 3d 285, 287 (Fla. 2d
DCA 2010) (“[Section 90.803(4)] applies when a doctor, or perhaps a nurse
or paramedic, explains what a victim of a crime told them when seeking
treatment. 	It does not apply to allow the victim to state in court what the
doctor explained to the victim about the reason or the necessity for

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treatment.” (citation omitted)), rev. denied, 77 So. 3d 1254 (Fla. 2011).
The Error was Harmless
Notwithstanding the trial court’s error in admitting Nurse’s hearsay
statements, the convictions should be affirmed as the error, in the context
of this case, was harmless. 	Error is harmless if there is no reasonable
possibility the error affected the verdict. Special v. W. Boca Med. Ctr., 160
So. 3d 1251, 1255-57 (Fla. 2014). 	“Application of the test requires not
only a close examination of the permissible evidence on which the jury
could have legitimately relied, but an even closer examination of the
impermissible evidence which might have possibly influenced the jury
verdict.” 	State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986).
“The prosecution must prove four elements beyond a reasonable doubt
for an individual to be convicted [of armed sexual battery upon a person
twelve years of age or older]: (i) sexual battery, (ii) upon a person twelve
years of age or older, (iii) without that person’s consent, and (iv) with the
use or threatened use of a deadly weapon, or actual physical force likely
to cause serious personal injury.” 	United States v. Deshazior, 882 F. 3d
1352, 1356–57 (11th Cir. 2018) (citing § 794.011(3), Fla. Stat.). 	“Sexual
battery” at the time of the charged conduct was defined as “oral, anal, or
vaginal penetration by, or union with, the sexual organ of another or the
anal 	or 	vaginal 	penetration 	of 	another 	by 	any 	other 	object[.]”
§ 794.011(1)(h), Fla. Stat. (2021).
Here, the jury could have legitimately relied on a substantial amount of
properly 	admitted 	evidence 	in 	convicting 	Henderson 	of 	armed 	sexual
battery. Foremost, of course, is the Victim’s testimony. She testified about
the way Henderson had approached her, her visits to the hospital, crime
scene, and sexual assault center, and the battery itself. 	Her account of
Henderson’s unusual interest in her shoes and feet and whether she ran
track matched perfectly with the Williams Rule witness’s testimony, which
was 	itself 	corroborated 	by 	contemporaneous 	texts 	with 	the 	witness’s
mother. 	The 	two 	girls’ 	testimony 	about 	Henderson’s 	predation 	was
compelling, highly consistent evidence of his modus operandi and lewd
motives.
The jury also listened to Henderson’s interview with police, in which he
first denies having anything to do with a teenage girl, and then ultimately
admits to having encountered the Victim, engaging in sexual conversation
with her, and even to exposing his penis in the Victim’s presence. 	Add in
the DNA evidence showing Henderson’s DNA in the Victim’s perianal and
buttocks swabs, and no reasonable doubt could arise. 	Notably, defense

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counsel did not even mention the anal DNA evidence in closing argument,
presumably because no credible argument could be made against that
highly compelling scientific evidence.
In contrast, the two pieces of evidence that should have been excluded
were not central to the case. 	The statements about which of the Victim’s
body parts were swabbed were entirely cumulative to the DNA analyst’s
unobjected-to testimony listing the swabs which she had analyzed. 	The
description of the Victim’s bleeding at the sexual assault center was also
essentially cumulative to her own testimony that she was bleeding in the
shower, collected the blood, and then found the vaginal swab painful. See
Jakubowski v. State, 286 So. 3d 955, 957 (Fla. 1st DCA 2019) (“Florida
appellate courts have held the admission of statements that do not qualify
as statements for medical diagnosis or treatment to be harmless, if the
victim testifies to the same information.” (collecting cases)).
The only inadmissible evidence that was not cumulative to properly
admitted evidence was the sexual assault report’s clinical description of
the Victim’s vaginal injury. The State emphasized this evidence in closing
to anticipate, and then in rebuttal to rebut, defense counsel’s argument
that no male DNA was found on the vaginal swab. 	Nonetheless, this was
far from being a focus of the case. The State’s case overwhelmingly focused
on the Victim’s testimony, the way it was corroborated by the other
witnesses’ testimony, and the DNA evidence showing Henderson’s DNA in
her perianal and buttocks swabs. 	Further, we can infer from the jury’s
guilty verdict on the “armed” element, which was corroborated by nothing
beyond 	the 	Victim’s 	testimony, 	that 	the 	jury 	resolved 	all 	credibility
questions in the Victim’s favor, even as to the portions of her testimony
that were not corroborated by other evidence.
Conclusion
We see no reasonable possibility that a jury confronted with the Victim’s
account of her vaginal pain during the battery, her account of bleeding in
the shower and feeling pain during the vaginal swabs, the corroborating
account by her mother, the chillingly similar and contemporaneously
corroborated 	testimony 	by 	the 	Williams 	Rule 	witness, 	Henderson’s
incredible 	and 	incriminating 	half-confession, 	and 	the 	uncontroverted
evidence of Henderson’s DNA in the Victim’s perianal and buttocks swabs,
would reach a different verdict because it lacked the clinical description of
the vaginal injury which the Victim separately testified to enduring. 	No
logical reason explains why this one omission would change the verdict.
Accordingly, we affirm.

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Affirmed.
KLINGENSMITH and S HEPHERD, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.