Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-3073 _____________________________ SCOTT ERNEST ALLEN, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Bay County. Brantley S. Clark, Jr., Judge. January 2, 2020 LEWIS, J. Appellant, Scott Ernest Allen, appeals his convictions and sentences for sexual battery on a person less than twelve years of age, video voyeurism, and seven counts of sexual performance by a child, arguing that the trial court erred by denying his motion for judgment of acquittal. For the reasons that follow, we disagree and affirm. BACKGROUND Appellant was charged with sexual battery on a person less than twelve years of age (Count 1), lewd or lascivious molestation (Counts 2 and 3), video voyeurism (Counts 4 and 5), sexual performance by a child (Counts 6 through 12), and possession of sexual performance by a child (Counts 13 through 127). Only Counts 1, 4, and 6 through 12 are at issue in this appeal. Counts 1 and 6 through 12 alleged that the crimes were committed against C.Y, and each of Counts 6 through 12 referenced a separate image file. Count 4 alleged that the crime was committed against S.S. At Appellant’s jury trial, S.S. testified that on August 17, 2016, at the age of fourteen, she was shopping for pants at Goodwill when she observed that whenever she went into the dressing room, Appellant pushed his pants under the stall. S.S. saw Appellant’s phone in the pocket of his pants and observed that he was bending down and pushing them with his hand further into her stall. S.S. thought Appellant was recording her and was certain he was not just grabbing his pants off the floor because of the way he was moving them with his hand. On September 10, 2016, the law enforcement officer who responded to the Goodwill incident recognized Appellant and executed an outstanding warrant for his arrest. The police found inside Appellant’s work truck two cellphones, including a Motorola xt1080 in a glass jar, flash drives in the same jar, and CDs/DVDs. Based on the discovery on the flash drives, Appellant’s home was searched pursuant to a warrant. The police removed the hard drive of the computer located in Appellant’s living room and positively identified C.Y. and her mother, E.Y., in the photographs and videos in evidence. Christopher Wilkinson, a digital forensics and Photoshop expert, examined the flash drives found in Appellant’s truck and found on them videos and images taken in dressing rooms, which were admitted as Williams 1 rule evidence. One of the flash drives contained videos taken in Appellant’s bathroom, which showed devices turned towards the shower, Appellant’s face or tattoos, and E.Y. using the bathroom. That same flash drive also contained seven images of C.Y., which were the bases of the charges in Counts 6 through 12. One of those images showed “a child whose panties are being pulled aside by what appears to be an adult male 1 Williams v. State, 110 So. 2d 654 (Fla. 1959). 2 with a tattoo of a, it looks like a handcuff key in his middle finger.” The remaining images depicted the same child and same male and all seven images were created on November 27, 2015. One of those photographs showed a penis touching C.Y.’s mouth; she “appeared to be unconscious” in the picture, which was taken at 3:01 a.m. Wilkinson had over fourteen years of training and experience in reviewing and identifying images of child pornography, he had reviewed millions of images, and he was trained to identify victims of child pornography. In his expert opinion, Appellant’s penis was touching C.Y.’s face in the photograph. The image that preceded that photograph and the image that followed it were taken at 2:56 a.m. and 3:09 a.m. and contained Appellant’s identifiers. Wilkinson knew the hand in the photographs belonged to Appellant based on the finger tattoo and the biometric information. Wilkinson enlarged the photographs and from the biometric data obtained a fingerprint that turned out to be a match to Appellant. The seven images were accessed on Appellant’s home computer and were not modified. 2 E.Y., Appellant’s sister-in-law and the alleged victim in Count 5, testified that she and her children spent Thanksgiving of 2015 with her sister and Appellant. The only other male in Appellant’s home during the visit was E.Y.’s elderly father, who was in poor health and needed assistance getting around. Looking at the photographs in evidence, E.Y. identified Appellant, his bathroom, and herself and testified that she did not give him permission to video record her while she was using the bathroom. The photographs in evidence depicted Appellant’s hand and C.Y., who was five years old at the time. During the night of November 27, 2015, Appellant had the opportunity to be alone with C.Y. because the children slept in the living room and Appellant would sometimes stay up with them. The defense moved for a judgment of acquittal. As to Count 1, Appellant argued that the State presented no proof that it was 2 Wilkinson also testified about the photographs and videos on the flash drives that served as the bases of the charges in Counts 13 through 127—they depicted children ages infant to twelve years engaged in sexual activity with adults or other children. 3 him in the photograph and that there was actual touching/union. As to Count 4, Appellant argued that the State presented no proof that there was a recording of S.S. With regard to Counts 6 through 12, the defense argued as follows: Although the Court did see a picture, argumentatively, sexual in nature, I would argue that the statutory elements . . . have not been met. There’s no indication that [Appellant] fully authorized or induced any sort of child to engage in any sexual performance or being a custodian who authorized such. There are some pictures the Court has seen where there may be some touching of the garments in which there is a sexual organ exposed in all the pictures on either the person doing the taking of the picture or the person there. The child appears to be asleep. There doesn't appear to be any evidence that the statutory elements of this particular offense have been met. And I would argue that although there is a picture of it, that there's been no proof that the elements of authorized or induced or employed this person to engage in these activities. The trial court denied the motion. The defense called Appellant’s wife, who testified that their children, ages twelve and thirteen, had access to the desktop computer in the living room and she never saw Appellant engage in suspicious activity on the computer. Mrs. Allen remembers E.Y. and her children sleeping in her daughter’s room and while her father is sickly and “a little slower,” he can get around and does not sleep well. Mrs. Allen identified Appellant in the exhibits, including in the still images showing a person setting up a camera in the bathroom; identified E.Y. in the bathroom video; and identified Appellant’s tattoo in the photograph with C.Y. Appellant testified as follows. Only a fraction of the flash drives in his work truck belonged to him and he had purchased his computer from a thrift store. The evidence showed Appellant setting up a recording device in the bathroom, but it was never his intention to record anyone nude. He set up the camera to find out 4 who had stolen money out of his wallet on the counter during a birthday party in 2013, but nothing went missing again, so he never viewed the recording, which showed his nieces and E.Y. undressing, showering, and using the toilet. When E.Y. and her children visited in 2015, they all stayed in his daughter’s room. Appellant’s father-in-law did not sleep well and was always in and out of his room. The bathroom videos and the photographs of C.Y. were downloaded from the same flash drive and were found on Appellant’s devices and home computer, but he did not take the photographs of C.Y. He also did not knowingly possess child pornography and did not record S.S. in the dressing room. Someone molested C.Y. to set Appellant up and upon receiving the images, he reported it. The jury found Appellant guilty. The trial court designated Appellant a sexual predator and sentenced him to life imprisonment on Counts 1 through 3, fifteen years of imprisonment on Count 4, five years of imprisonment on Count 5, fifteen years of imprisonment on Counts 6 through 12, and five years of prison on the remaining counts, all to run consecutively. This appeal followed. ANALYSIS There are two legally distinct issues that can be raised in a motion for judgment of acquittal: (1) whether the State presented legally sufficient evidence to establish each element of the charged crime, and (2) whether, in a wholly circumstantial evidence case, the State’s evidence is inconsistent with any reasonable hypothesis of innocence. Newsome v. State, 199 So. 3d 510, 512 (Fla. 1st DCA 2016). To preserve either issue, a defendant moving for a judgment of acquittal must identify the element(s) of a crime for which he contends the evidence is lacking and, if the evidence is purely circumstantial, must outline his theory of defense and explain why it is not inconsistent with the circumstantial evidence. Id. at 513. We review a trial court’s denial of a motion for judgment of acquittal de novo to determine whether the evidence is legally sufficient to sustain a conviction; in doing so, we must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State. Kemp v. State, 166 So. 3d 213, 216 (Fla. 1st 5 DCA 2015). In a case where the State submitted some direct evidence, the denial of a motion for judgment of acquittal will be affirmed if it is supported by competent and substantial record evidence. McWatters v. State, 36 So. 3d 613, 631 (Fla. 2010). In a wholly circumstantial evidence case, however, a special standard applies, whereby a conviction cannot be sustained unless there is competent, substantial evidence inconsistent with any reasonable hypothesis of innocence. Id. 1. Counts 6 through 12—sexual performance by a child. Appellant argues that the trial court erred by denying his motion for judgment of acquittal as to Counts 6 through 12 because the charged offenses were based on photographs in which the child victim appeared to be sleeping. Appellant essentially contends that a sleeping victim cannot engage in sexual conduct because she can neither make nor receive contact with another’s designated sexual area. Section 827.071(2), Florida Statutes (2015), provides that: [a] person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance. “‘Sexual performance’ means any performance or part thereof which includes sexual conduct by a child of less than 18 years of age.” § 827.071(1)(i), Fla. Stat. As such, a sexual performance must include sexual conduct by a child. Breeze v. State, 634 So. 2d 689, 690 (Fla. 1st DCA 1994). “Sexual conduct,” in turn, is defined in part as follows: actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or 6 gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. § 827.071(1)(h), Fla. Stat.; see also § 827.071(1)(f), Fla. Stat. (defining “[s]exual battery” 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”). Section 827.071 is aimed at protecting children from sexual exploitation. Schmitt v. State, 590 So. 2d 404, 410 (Fla. 1991). “The statute, as written, defines sexual conduct broadly enough to cover contact by one party with the designated sexual areas of another party regardless of whether the child victim is making the contact or receiving the contact.” Denhart v. State, 987 So. 2d 1257, 1259 (Fla. 5th DCA 2008) (rejecting the appellant’s argument that the trial court erred by denying his motion for judgment of acquittal because the evidence showed only that he made contact with the child’s breast, not that she made contact with any of his designated sexual areas). We find Appellant failed to preserve his argument. While the defense noted in moving for a judgment of acquittal that the victim appeared to be asleep in the photographs, its argument was that “there’s been no proof [of] the elements of authorized or induced or employed this person to engage in these activities.” The defense focused on the sufficiency of the evidence to prove that Appellant “employed, authorized, or induced the victim,” not on whether the victim “engage[d] in a sexual performance.” Nevertheless, even if the argument had been preserved, we would reject it on the merits. A victim can receive contact with another’s designated sexual area while asleep, as C.Y. did. “Sexual conduct” is defined broadly and Appellant does not dispute that the pictured acts fall within that definition. Nothing in the statute requires a child victim’s active participation in sexual conduct. The photographs depict Appellant’s hand pulling aside the child’s underwear and exposing/touching her vagina and his penis touching her mouth. Those actions meet the definition of “sexual conduct,” which includes “actual lewd exhibition of the genitals,” “actual physical contact with a person’s clothed or unclothed genitals,” and “conduct which constitutes sexual battery.” Thus, 7 we find no error in the denial of Appellant’s motion for judgment of acquittal on Counts 6 through 12. 2. Count 1—sexual battery on a person less than twelve. Appellant’s second argument on appeal is that the trial court erred by denying his motion for judgment of acquittal as to Count 1 because this was a circumstantial evidence case and his conviction required the impermissible stacking of inferences. See Sanchez v. State, 270 So. 3d 515, 520 (Fla. 2d DCA 2019) (“An impermissible pyramiding of inferences occurs where at least two inferences in regard to the existence of a criminal act must be drawn from the evidence and then stacked to prove the crime charged; in that scenario, it is said that the evidence lacks the conclusive nature to support a conviction.” (citation omitted)). Pursuant to section 794.011(2)(a), Florida Statutes (2015), “[a] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony . . . .” “‘Sexual battery’ means 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. This argument was not preserved because in moving for a judgment of acquittal, Appellant did not argue that it was a wholly circumstantial evidence case and he did not outline a theory of defense and explain why it was not inconsistent with the circumstantial evidence. See Charles v. State, 253 So. 3d 1230, 1232-33 (Fla. 1st DCA 2018) (finding the appellant failed to preserve his argument that the evidence was wholly circumstantial where he raised it for the first time on appeal; thus, the special circumstantial evidence standard of review was not triggered); see also Rivet v. State, 1D15-4430, 2018 WL 3551900, at *3 n.2-3 (Fla. 1st DCA July 25, 2018) (finding the appellant failed to preserve the argument that his conviction required an improper stacking of inferences). Had the argument been preserved, we would find that it, too, lacks merit. Appellant contends that one of the inferences one must draw is that he took the photographs that immediately 8 preceded and proceeded the image at issue; however, there was direct evidence of him taking those photographs. Several witnesses identified the hand in the photographs as Appellant’s and there was expert testimony that the fingerprint derived from the images was a match to him. See Kocaker v. State, 119 So. 3d 1214, 1224 (Fla. 2013) (“Direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact.” (citation omitted)). Moreover, Appellant continues to argue that the State’s evidence was insufficient to prove the identity of the perpetrator because the photograph underlying the sexual battery charge contained no identifiers that could lead to the conclusion that it was his penis in the photograph. However, this assertion ignores the remaining evidence. The subject photograph was taken at 3:01 a.m., and the images that preceded it and followed it were taken at 2:56 a.m. and 3:09 a.m. and contained Appellant’s identifiers. The tattooed finger in the pictures was identified as Appellant’s and when enlarged produced a fingerprint that was a match to him. The photographs were taken with a phone of the same make and model as Appellant’s, were located on the same flash drive as the bathroom video recordings he admitted he made, and were accessed on his home computer. The photograph at issue and the other images of C.Y. were taken during the night of November 27, 2015, while she was spending the night at Appellant’s residence, where the only other male was her ailing grandfather who needed assistance to get around. Appellant also disputes whether there was actual touching/union, but Wilkinson, who was trained to view images and videos and to identify sexual acts and victims of child pornography, testified that in his expert opinion, Appellant’s penis was touching C.Y.’s mouth. Accordingly, we find that the evidence, taken in a light most favorable to the State, was legally sufficient to sustain a conviction for sexual battery. 3. Count 4—video voyeurism. Lastly, Appellant challenges the denial of his motion for judgment of acquittal as to Count 4, arguing that the evidence was legally insufficient because there was no evidence that he viewed, broadcasted, or recorded S.S. 9 A person commits video voyeurism if: [f]or his or her own amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person, intentionally uses or installs an imaging device to secretly view, broadcast, or record a person, without that person’s knowledge and consent, who is dressing, undressing, or privately exposing the body, at a place and time when that person has a reasonable expectation of privacy. § 810.145(2)(a), Fla. Stat. (2016); see also Fla. Std. Jury Instr. (Crim.) 11.13(a) (instructing in part that the State must prove that the defendant intentionally used or installed an imaging device to secretly view, broadcast, or record the victim and the victim was thereby viewed, broadcasted, or recorded). Despite acknowledging that his conviction required proof that he viewed, broadcasted, or recorded S.S., Appellant focuses on the lack of evidence of an actual recording. S.S. believed Appellant was recording her in the dressing room and explained that the camera phone was inside the pocket of his pants and he kept pushing it further into her stall while moving around his hand. The jury could reasonably infer from the evidence that Appellant was pushing his camera phone towards S.S. to view or record her. While the State was not required to present evidence of an actual recording of S.S. in the dressing room, we note that Appellant was not arrested and his phone was not searched until weeks later, providing him with plenty of opportunity to delete any recording. Additionally, Williams rule evidence was admitted showing that Appellant had recorded other females in dressing rooms. CONCLUSION For the foregoing reasons, we conclude the trial court did not err in denying Appellant’s motion for judgment of acquittal. Therefore, we affirm his convictions and sentences. AFFIRMED. WINOKUR and JAY, JJ., concur. 10 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee. 11