Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DONALD JAMES FOUNTAIN, JR., ) ) Appellant, ) ) v. ) Case No. 2D20-289 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed April 28, 2021. Appeal from the Circuit Court for Pasco County; Kimberly A. Campbell, Judge. Howard L. Dimmig, II, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee. LaROSE, Judge. Donald James Fountain, Jr., appeals his judgment and sentences. A jury found him guilty of sexual activity with a minor by a person in familial or custodial authority (Counts I – IV), promoting a sexual performance by a child (Count V), and possession of child pornography (Count VI).1 We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.140(b)(1)(A), (F). The trial court erred in denying Mr. Fountain's motion for judgment of acquittal (JOA) on Count IV. Consequently, we reverse and vacate the judgment and life sentence for that count. We affirm the remaining judgment and sentences without further comment. Background Count IV of the information alleged that Mr. Fountain's penis "penetrate[d] or had union with [the victim]'s mouth." At trial, the victim testified unequivocally that Mr. Fountain's penis never penetrated her mouth. The State then attempted to impeach the victim with an alleged prior inconsistent statement to Detective Justice that Mr. Fountain had placed his penis in her mouth. The victim once again stated that she "[could]n't recall saying that to Detective Justice." Upon more questioning, the victim replied that "[her] answer will remain the same, no [she] d[id] not know if Detective [Justice] misheard [her] but [she] ha[d] never claimed that his penis went inside [her] mouth." Taking a different tack, the State next inquired whether Mr. Fountain "ever place[d] his penis in union with [he]r mouth." The State informed the victim this meant the area "outside your mouth." The victim responded Mr. Fountain had placed his penis in union with her mouth. However, when asked by the State to describe the act of "union," she testified that his penis "was around my face, like around my mouth and 1The trial court sentenced Mr. Fountain as a sexual predator to concurrent terms of life imprisonment on Counts I through IV, fifteen years' imprisonment on Count V, and five years' imprisonment on Count VI. -2- around stuff like that." Significantly, when asked whether Mr. Fountain had "ever place[d] his penis upon your lips" or "ha[d] you kiss his penis," she responded, "No." Mr. Fountain moved for a JOA on Count IV, arguing that the evidence was insufficient to allow the case to go to the jury. Counsel noted that although the victim testified that Mr. Fountain's penis was in union with her mouth, she also expressly stated that he never placed his penis on her lips. Counsel argued that "union" was a legal term, and based upon her testimony, the two body parts were never in "union." See Fla. Std. Jury Instr. (Crim.) 11.6 (" 'Union' means contact."). The trial court denied the JOA motion, explaining: With regards to Count IV, there was quite a bit of testimony. My notes recall that [the victim] testified specifically that he put his penis around her mouth. He did not make her kiss it, did not penetrate the mouth. However, she did use the word "union" . . . pursuant to the charging document. Analysis We review de novo the denial of a JOA motion. See Sullivan v. State, 898 So. 2d 105, 108 (Fla. 2d DCA 2005) ("The standard for the review of a trial court's decision on a motion for a judgment of acquittal is de novo."). "A trial court's denial of a motion for judgment of acquittal is reviewed de novo to determine solely if the evidence is legally sufficient." Durousseau v. State, 55 So. 3d 543, 556 (Fla. 2010) (citing Jones v. State, 790 So. 2d 1194, 1196-97 (Fla. 1st DCA 2001)). "There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt." Delgado v. State, 71 So. 3d 54, 65-66 (Fla. 2011) (quoting Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003)). -3- "When moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence." Bussell v. State, 66 So. 3d 1059, 1061 (Fla. 1st DCA 2011) (citing Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). The State must "prove each and every element of the offense charged beyond a reasonable doubt, and when the [State] fails to meet this burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted." Baugh v. State, 961 So. 2d 198, 204 (Fla. 2007) (quoting Williams v. State, 560 So. 2d 1304, 1306 (Fla. 1st DCA 1990)). We agree with Mr. Fountain that the evidence was insufficient to withstand his JOA motion on Count IV. The victim testified that Mr. Fountain's penis never touched her lips. In denying the JOA motion, the trial court relied upon the victim's use of the word "union," without appreciating that her understanding of the word differed from the word's legal meaning. In doing so, the trial court disregarded the victim's dispositive disclamation that there was no physical contact between the two body parts. Additionally, to the extent the trial court considered the victim's prior statements to law enforcement as substantive evidence sufficient to defeat Mr. Fountain's JOA motion, this was error: Under section 90.801(2)(a), Florida Statutes (2015), prior inconsistent statements can be admitted as substantive evidence "if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is . . . [i]nconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition." § 90.801(2)(a), Fla. Stat. (2015). The law is well-established that "a statement given under oath during a police investigation is not a statement given at an 'other proceeding' and consequently is not admissible as -4- substantive evidence under section 90.801(2)(a)." Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004) (citing State v. Delgado-Santos, 497 So. 2d 1199 (Fla. 1986)); see also S.L. v. State, 993 So. 2d 1108, 1110 (Fla. 4th DCA 2008) (holding that police officer's testimony as to the victim's prior inconsistent statements made to him on day of the alleged crime were not admissible as substantive evidence and could not be used to support a finding of guilt). Here, Ordonez's prior inconsistent statement to police was not given at a trial, hearing, or other proceeding or in a deposition. Accordingly, while Ordonez's prior inconsistent statement could be used for impeachment, Ordonez's prior inconsistent statement cannot constitute admissible substantive evidence. Castillo v. State, 217 So. 3d 1110, 1114-15 (Fla. 3d DCA 2017) (alteration in original). The prior inconsistent statement, alone, was not a proper basis upon which the trial court could deny Mr. Fountain's JOA motion. See id. at 1115 n.11 ("In a criminal prosecution, even where a prior inconsistent statement is admissible, 'a prior inconsistent statement standing alone is insufficient to prove guilt beyond a reasonable doubt.' " (quoting State v. Moore, 485 So. 2d 1279, 1281 (Fla. 1986))). Finally, because Mr. Fountain did not object to the trial court's denial of his JOA motion, the State contends that he failed to preserve the issue for our review. We reject this contention. The State relies on Goad v. State, 887 So. 2d 415 (Fla. 2d DCA 2004). However, in that case, we hewed to the rather unremarkable principle that for a JOA argument to be preserved for appeal, the defendant must have raised the same JOA argument below. See id. at 416 ("Goad did not make this argument in his motion for judgment of acquittal on the burglary charge and, thus, has not preserved this issue for review."); see also Ellis v. State, 714 So. 2d 1160, 1161 (Fla. 2d DCA 1998) ("In order for an argument to be cognizable on appeal, it must be the specific contention asserted -5- as the legal ground for the objection, exception, or motion below, which must have been made at the time of the alleged error." (first citing Terry v. State, 668 So. 2d 954, 961 (Fla. 1996); and then citing Tillman v. State, 471 So. 2d 32 (Fla. 1985))). Mr. Fountain was not required to lodge an objection after the trial court denied his specific JOA motion. See Brooks v. State, 762 So. 2d 879, 895 n.18 (Fla. 2000) ("[R]enewing a motion for judgment of acquittal at the close of all the evidence is no longer necessary to preserve a sufficiency of the evidence claim for appellate review."); Morris v. State, 721 So. 2d 725, 727 (Fla. 1998) ("Once the [JOA] motion has been made at the close of the State's case and brought to the trial court's attention, the trial court has been given an opportunity to rule on the precise issue. The issue should then be considered preserved for appellate review."). A perfunctory objection-for- objection's sake does not serve the purposes underlying the contemporaneous objection rule. See Crumbley v. State, 876 So. 2d 599, 601 (Fla. 5th DCA 2004) ("[T]he rationale for . . . application [of the contemporaneous objection rule] is two-fold: 1) to require an objection at the time the error is committed to give the trial court the opportunity to correct it; and 2) to prevent a litigant from allowing an error to go unchallenged so it may be used as a tactical advantage later."). Conclusion Affirmed in part, reversed in part, and remanded with instructions to vacate the judgment and sentence for Count IV. CASANUEVA and LABRIT, JJ., Concur. -6-