Opinion
No. 4D11-3582
05-01-2013
LARRY DOUGLAS JONES, Appellant, v. STATE OF FLORIDA, Appellee.
Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
, C.J.
The defendant's age was an element of the crime charged. The State proved that element by having a law enforcement officer testify to the date of birth shown on the defendant's driver's license at the time of arrest. The defendant argues the trial court erred in allowing the State to rely on this hearsay testimony to establish the defendant's age as an element of the crime. The defendant also argues the trial court erred in admitting the defendant's custodial statement and in assessing 80 points for penetration on the sentencing scoresheet. We agree the admission of the hearsay testimony was error and reverse. We find no error in the other two issues raised.
The State charged the defendant with three counts of unlawful sexual activity by a person 24 years of age or older with a minor. The activity occurred after the defendant and victim met online. Specifically, the State charged the defendant with three counts of "oral, anal, or vaginal penetration of, or union with, the sexual organ of" the victim by a person 24 years of age or older.
During direct examination of the arresting officer, and over a defense hearsay objection, the State elicited that the officer had obtained the defendant's date of birth from his driver's license. The driver's license was not introduced into evidence. The State maintained the defendant's date of birth on his driver's license was not hearsay because it became an admission by the defendant when he gave his license to the officer. The trial court agreed with the State, and allowed the testimony.
At the close of the State's case, the defendant moved for judgment of acquittal, arguing that—absent the officer's hearsay testimony concerning the defendant's driver's license—the State failed to prove the defendant's age. The trial court denied the motion.
The jury found the defendant not guilty on the first two counts and guilty as charged on the third count. The scoresheet included 80 points for penetration. The trial court sentenced the defendant to twelve years in prison, from which the defendant now appeals.
The defendant first argues the trial court abused its discretion in allowing the officer to testify concerning the defendant's date of birth based upon the driver's license given to him at the time of arrest because it was inadmissible hearsay. The State responds that the defendant's relinquishment of his license amounted to an admission by a party opponent. The defendant replies that the relinquishment of his license did not amount to an "admission by conduct."
Although we review a trial court's ruling on the admissibility of evidence for an abuse of discretion, an "erroneous interpretation of the evidence code is subject to de novo review." Barcomb v. State, 68 So. 3d 412, 414 (Fla. 4th DCA 2011).
Our evidence code defines hearsay as "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(1)(c), Fla. Stat. (2008). Hearsay also includes "written assertion[s]" that are "offered in evidence to prove the truth of the matter asserted." §§ 90.801(1)(a)1, 90.801(1)(c), Fla. Stat. (2008). Here, it is the officer's testimony that constituted inadmissible hearsay.
In Holborough v. State, 103 So. 3d 221 (Fla. 4th DCA 2012), we held the trial court abused its discretion in allowing an arresting officer to testify as to the victim's identity, which he learned after viewing her Florida ID. Holborough, 103 So. 3d at 223. In so holding, we explained:
The identification of the victim in this case was based on inadmissible hearsay. First, the State did not show that the officer had "personal knowledge" of the victim's identity apart from her display of a "Florida ID" to him. . . . The victim's "Florida ID" was an out-of-court statement. Even if the ID qualified as a public record for the purpose of the section 90.803(8) exception to the hearsay rule for public records,Id. (citations omitted).
the officer's in-court testimony about what the ID said was hearsay falling under no exception.
In a similar context, the Second District found error in the admission of an officer's testimony about the date written on a defendant's temporary license tag. Riggins v. State, 67 So. 3d 244, 248 (Fla. 2d DCA 2010). The court explained that such testimony was inadmissible hearsay and did not fall within any recognized exception, because "the date written on the [defendant's] temporary tag was an out-of-court written assertion from an unknown person regarding the date the temporary tag was to expire." Id.
Here, the driver's license was an out-of-court statement. The officer did not show that he had "personal knowledge" of the defendant's age apart from having read the defendant's driver's license. And, his testimony did not fall within a recognized exception to the hearsay rule.
Yet, the State suggests that the testimony was an admission by the defendant because he handed his license to the arresting officer. We disagree. An adopted admission is "a statement of which the party [against whom the statement is offered] has manifested an adoption or belief in its truth." § 90.803(18)(b), Fla. Stat. (2008). An adopted admission can "occur when the conduct of an adverse party circumstantially indicates the party's assent to the truth of a statement made by another person." 1 Charles W. Ehrhardt, Florida Evidence § 803.18b (2012 ed.). There was no such admission here.
We find no error, however, in the admission of the defendant's custodial statement.
Lastly, the defendant argues the trial court erred in adding 80 points for penetration to the defendant's scoresheet when the verdict form did not allow the jury to distinguish between "penetration" and "union with" as charged. We find no merit in this argument. We have previously held that "[w]hen sentencing for a sexual offense, these are the types of facts judges have traditionally taken into consideration, even though they might come from observations at a trial or from a presentence investigation." Neira v. State, 847 So. 2d 1134, 1136 (Fla. 4th DCA 2003).
As the First District has held, "penetration points assessed are not a statutory sentence enhancement or statutory mandatory minimum," even though they may raise the floor of the minimum sentence to be imposed. Olivera v. State, 58 So. 3d 352, 354 (Fla. 1st DCA 2011). The points do not change the degree of felony, but rather the "placement in the scoresheet cell." Neira, 847 So. 2d at 1136. For this reason, neither Apprendi v. New Jersey, 530 U.S. 466 (2000), nor Blakley v. Washington, 542 U.S. 296 (2004), are implicated. Robles v. State, 952 So. 2d 1210, 1211 (Fla. 5th DCA 2007) (citing Gilson v. State, 795 So. 2d 105, 111 (Fla. 4th DCA 2001)). We find the defendant's reliance on Allen v. State, 70 So. 3d 700 (Fla. 4th DCA 2011), misplaced. There, we reversed the sentence based upon the assessment of points for penetration because the record did not support the assessment of penetration points for one victim.
For these reasons, we reverse the conviction and remand the case to the trial court for a new trial.
Reversed in part, Affirmed in part, and Remanded. TAYLOR and CONNER, JJ., concur.
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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John Kastrenakes, Judge; L.T. Case No. 2010CF001458AMB.
Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.