Andrew M. Schluck v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3724 _____________________________ ANDREW M. SCHLUCK, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Barbara K. Hobbs, Judge. November 3, 2021 WINOKUR, J. Andrew M. Schluck appeals his judgment and sentence for burglary and sexual battery. He contends that the trial court erred in four respects: (1) it improperly admitted a recording of the victim’s statement that she thought she had been raped in her dorm room the previous night; (2) it did not allow Schluck to represent himself or conduct a Faretta 1 hearing after he requested to do so; (3) it imposed conditions of sexual-offender probation that were not related to the crime; and (4) it did not hold a competency hearing or enter an order of competency after there were 1 Faretta v. California, 422 U.S. 806 (1975). reasonable grounds to believe that Schluck may not have been competent to proceed. We agree that the court improperly admitted a recording of the victim and reverse for new trial. I Schluck was charged with burglary of an occupied dwelling with assault or battery and sexual battery upon a victim physically helpless to resist. The record contains the following evidence: The nineteen-year-old victim and her friend had met Schluck as they walked back to the victim’s dorm after a night of drinking. Surveillance video showed the three entering the building at 3:28 a.m. The women went into the victim’s dorm room alone, but the victim’s friend saw Schluck standing in the hallway when she left a few minutes later. Surveillance video showed Schluck leaving the building at 7:14 the next morning. At 7:44 a.m. and after speaking to her roommate, who advised her to gather her clothing and call the police, the victim called the university police administrative line and reported, “I think that I was . . . raped last night.” 2 She stated that it had happened in her dorm. The recording was played for the jury over Schluck’s hearsay objection, and the victim did not testify. 3 The jury found Schluck guilty of burglary of an 2 This call was a call for service to police rather than a 911 call. The dissent recounts in detail virtually the entire case 3 against Schluck. The issue we are considering here is not whether the State presented sufficient evidence to support Schluck’s convictions, but whether a single piece of evidence, a recording of the police call, was hearsay, and if so, was properly admitted under a hearsay exception. Our analysis is limited to that question. Although we will not address most of the facts that we do not find relevant to the issue, to avoid any confusion, we will briefly discuss the comments on the victim’s impairment. Surveillance video showed the victim entering the dormitory building on her own, and she did not appear to be stumbling. A crime laboratory analyst extrapolated her blood-alcohol level for around 3:00 a.m. based on a measurement from the next day and estimated that it would have been between 0.14 and 0.26 grams per deciliter. 2 occupied dwelling with battery and of sexual battery, a lesser- included offense of sexual battery upon a victim physically helpless to resist. Schluck contends that the trial court erred in admitting the victim’s statements to university police because they were hearsay and did not qualify as excited utterances. 4 We review for abuse of discretion. See Alston v. State, 723 So. 2d 148, 156 (Fla. 1998). Though he acknowledged that the victim “could have been” at the upper end of this range, he testified that the “vast majority of the population” would fall in the middle, around 0.16 to 0.18. He explained that alcohol influences people differently and two people with the same level of blood alcohol will not necessarily have the same level of physical impairment. We also note that no drugs were found in the victim’s blood. But most importantly, the victim’s impairment at 3:00 a.m. does not affect the admissibility of her police call at 7:44 a.m. A victim’s intoxication at the time of the sexual battery—a time that has not been established in this case— is relevant only to whether she is capable of consent, and that issue is not before us. In making these observations, we reject the dissent’s contention that we have “downplayed” the record facts. We take this opportunity to emphasize that our decision is based upon a purely legal question and not our own evaluation of the defendant’s guilt or our sympathy for the victim. Where a jury’s decision was affected by an incorrect application of law, we must reverse a conviction. This is a necessary feature of our justice system. Laws are designed to ensure fair trials, and allowing convictions based on unfair trials to stand harms this system. 4 Schluck also argues that the statements were admitted in violation of the Confrontation Clause. We do not address this argument because Schluck never properly presented it below. We agree with the dissent that Schluck’s hearsay objections did not preserve a Confrontation Clause claim. Nor do we address whether a Confrontation Clause violation constituted fundamental error, because we find that the evidence was inadmissible hearsay. 3  II A We first address whether Schluck preserved for appeal his argument that the recording did not constitute an excited utterance and therefore did not fall under the hearsay exception set forth in section 90.803(2), Florida Statutes. Prior to trial, Schluck’s counsel objected to the State’s planned introduction of the recording, in part on the ground that it constituted hearsay. The prosecutor indicated that she intended to authenticate the recording with testimony from an “IT person” with the university police, and testimony from a friend of the victim who could authenticate the victim’s voice, and added that the State would also establish that the victim “was upset at the time of the call.” The court overruled Schluck’s objection without further comment. Before the recording was admitted at trial, Schluck’s counsel “renew[ed the] objection on the grounds of hearsay.” Without asking the State for a response, the court overruled the objection without further comment. After trial, Schluck moved for new trial, in part on the ground that the admission of the recording violated his right to confrontation. The State disagreed and for the first time explicitly claimed that an exception to the hearsay rule applied, arguing that it constituted an excited utterance. Schluck replied, denying that the hearsay statements constituted an excited utterance. After hearing, the court denied the motion for new trial. Under these circumstances, the issue is preserved for appeal even though Schluck never argued that the statement did not constitute an excited utterance until replying to the State’s claim in its response to the motion for new trial that the exception applied. “A ‘hearsay’ objection need not specify the hearsay exception the objecting party will address on appeal.” State v. Crofoot, 97 So. 3d 866, 868 (Fla. 1st DCA 2012) (holding that the appellant’s “hearsay objection preserved its argument on appeal that the ‘statement against interest’ exception does not apply to the statements at issue”); see also Neeley v. State, 883 So. 2d 861, 864 (Fla. 1st DCA 2004) (holding that a general hearsay objection preserved the issue of whether a statement qualified as a hearsay exception because “[w]hen a party makes a hearsay objection, a 4 trial court must consider all possible hearsay violations, exceptions, and exclusions”). When a party objects to admission of evidence because it is hearsay, the objection is generally sufficient to preserve the issue, even if the proponent of the testimony claims on appeal (or in response to a motion for new trial) that a hearsay exception applies. 5 In this case, we find that Schluck properly alerted the trial court to his claim that the statement constituted hearsay and was not required also to argue that an exception did not apply in order to preserve this argument for review. B The dissent contends that the recording was actually admitted under the “public records and reports” exception to hearsay contained in section 90.803(8), Florida Statutes, rather than the excited-utterance exception. Because Schluck did not address this exception, the dissent argues that Schluck has failed to present an argument supporting reversal. We find that the State never sought admission of the statements under the public-records exception, and as such, Schluck’s failure to address it is immaterial. First, we disagree that the public-records exception was ever raised in the pretrial hearing. During that hearing, the prosecutor indicated that she would introduce the testimony of the person who operates the system that records calls made to the university police. Schluck’s counsel responded that he was unaware that the State intended to introduce a call from the victim to police, and objected to its admission on the ground that it constituted a discovery violation and that it was hearsay. The State indicated that it had given a copy of the recording to Schluck when he was pro se. The following exchange then occurred: 5 We do not dispute that preservation may have required more if the State had clearly indicated at trial that it was relying on the excited-utterance exception to admit the recording. Instead, Schluck argued that the evidence was hearsay and the court denied the objection. In this situation, the general rule applies. 5  THE COURT: Okay. Well, you have somebody that’s going to authenticate it as a public record? [PROSECUTOR]: Yeah. The IT person will authenticate it as the audio recording from the system. And then I will have a friend who will authenticate her voice. THE COURT: Okay. [PROSECUTOR]: As well as the fact that she was upset at the time of the call. THE COURT: Okay. Overruled. The entire exchange shows that the prosecutor and the court were primarily discussing authentication of the recording under section 90.901, Florida Statutes, not attempting to support admissibility of hearsay by resort to the “public records and reports” exception to the hearsay rule. 6 The State indicated that it planned to introduce testimony of a person with knowledge of the university police call system, as well as that of a person who could authenticate the victim’s voice. See, e.g., D.D.B. v. State, 109 So. 3d 1184, 1185 (Fla. 2d DCA 2013) (holding that a 911 call recording was not properly authenticated and noting that “identification of D.D.B.’s voice on the recording is helpful to the State’s case, but authentication would also require other predicate evidence, including that the recording was of a telephone call received and handled by the 911 system on the relevant date.”). As for hearsay, the prosecutor indicated that she planned to introduce testimony 6 “Authentication or identification of evidence is required as a condition precedent to its admissibility.” § 90.901, Fla. Stat. In other words, authentication is a separate requirement from admissibility. Both were discussed at the pretrial hearing; we reject the dissent’s contention that “[a]rgument at the pre-trial hearing focused exclusively on whether the State had a basis for overcoming his hearsay objection.” Dissenting op. at 17. In fact, very little of the pretrial argument addressed Schluck’s hearsay objection. 6 that the victim was upset at the time of the call. This suggests that the State planned to seek admission under the excited-utterance exception to hearsay. 7 We further note, contrary to the claim of the dissent, that the State never indicated that it sought admission under the “public records and reports” exception. Only the judge uttered the phrase “public record,” and as indicated above, was referring to authentication, not to a basis for admission of hearsay. 8 Second, we note that the proceedings following this hearing indicated that the recording had been admitted under the excited- utterance exception. No mention of the public-record exception was made at trial. At the motion for new trial hearing, the prosecutor argued that the evidence was admissible as an excited utterance. And in this appeal, the State never argues that the evidence fell under the public-record exception to the hearsay rule. Third, our conclusion is bolstered by the fact that the public- record exception plainly does not apply. “Records that rely on information supplied by outside sources . . . are inadmissible under [the public-record exception].” Lee v. Dep’t of Health & Rehab. Servs., 698 So. 2d 1194, 1201 (Fla. 1997) (citation omitted). “In Florida, rather than offering this type of record, a witness must be called who has personal knowledge of the facts.” Id. See also Reichenberg v. Davis, 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003) (holding that reports where “the authors simply related the 7 While we indicated above that in some situations a party may not have preserved an argument that a hearsay exception does not apply, this is not the case here given the perfunctory nature of the proponent’s argument in support of an exception and the court’s denial of the objection right after the argument. 8 We believe that the court asked about authentication as a “public record” because some public records may be authenticated under a procedure in section 90.902(4), Florida Statutes. This procedure does not actually apply to authenticate a recording, but it appears to us that this is why the judge mentioned the phrase. This possibility seems far more likely than the idea that the judge was referring to the public-record exception to the hearsay rule. 7 substance of what the witnesses had told the authors” are not admissible under the public-records exception to the hearsay rule “because they were not based upon the personal knowledge of an agent of the ‘business.’”). “To be admissible under these circumstances, the hearsay statements made to the authors must themselves fall within an exception to the hearsay rule.” Id. (citing § 90.805, Fla. Stat.). We are unaware of any case where a recording of a call to police was admitted under the public-record exception to the hearsay rule. This fact helps to convinces us that the court never had any intention of admitting the recording under the public-record exception. In conclusion, the court did not admit the recording under the public-record exception to the hearsay rule. For this reason, we find no fault on Schluck’s part for failing to address it. III A An excited utterance for hearsay-exception purposes, set forth in section 90.803(2), Florida Statutes, is not merely an utterance made while excited. To qualify as an excited utterance, a statement must satisfy the following elements: “(1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event.” State v. Jano, 524 So. 2d 660, 661 (Fla. 1988). If a statement is made “well after the startling event,” the proponent must “offer some proof that the declarant did not engage in a reflective thought process.” Blandenburg v. State, 890 So. 2d 267, 271 (Fla. 1st DCA 2004). Applying these principles, the victim’s statements do not qualify as excited utterances. The evidence does not show what time the offense occurred, but Schluck left the victim’s dorm building at 7:14 a.m., and the victim called campus police at 7:44 a.m. While a half an hour passed between Schluck’s departure and the report, the victim’s statement that she had been raped “last night” implies that the period between the offense and the call had 8 been longer; the intervening time was clearly enough to distinguish between night and morning. Moreover, the record indicates that the victim spoke with her roommate, who advised her to gather her clothes and call the police, before making the report. 9,10 This shows that rather than immediately calling, the victim considered what she should do—in other words, she did engage in a reflective thought process. 11 Although this by no means 9 The dissent contends that this observation is a “cornerstone” of our analysis and that it cannot be considered because it was contained in a police report “that was not entered in evidence and was never presented to or relied upon by the trial judge.” Dissenting op. at 26 (emphasis omitted). As stated above, the State never directly invoked the excited-utterance exception until after trial, so Schluck was given no real opportunity to support his opposition to the exception. As for the fact that it was not relied on by the trial judge, this observation does not change our view that the argument was adequately preserved for review. More importantly, even if we accepted the notion that we cannot consider a matter in the record unless it was admitted into evidence or explicitly considered by the trial court in ruling on admissibility, it would not change our view. The report is not a “cornerstone” of our conclusion. Even without evidence of a report that the victim spoke to her roommate prior to the call, the record does not demonstrate that the victim did not engage in reflective thought, which the proponent of the hearsay exception was required to prove. 10 To support its argument that we cannot consider the police report, the dissent cites Fla. Livestock Bd. v. Hygrade Food Prod. Corp., 141 So. 2d 6 (Fla. 1st DCA 1962). The appellant’s brief there referred to non-record material, which had been included in an appendix to the brief. Nothing of the sort occurred here. The disputed report here is part of the record on appeal. We reject the dissent’s notion that we are attempting to “retry[] a case” by mentioning this report, Dissenting op. at 26; we are merely addressing a discrete evidentiary ruling of the trial court. 11 We reject the dissent’s contention that “[t]he unrebutted evidence is that the victim was emotional[ly] overwrought, disoriented, and awakening from severe inebriation prior to and 9 shows that she did in fact contrive or misrepresent, it shows that her statement does not satisfy the test for the excited-utterance exception to hearsay. 12 While a sexual battery is startling enough to cause nervous excitement and the victim was clearly upset during the call, the only evidence related to timing shows that the call came the morning after the crime and after the victim was able to engage in a reflective thought process. However, we emphasize that the law does not require affirmative proof of reflective thought to render a statement made “well after the startling event” inadmissible as an excited utterance. Instead, the burden is on the proponent of the excited-utterance exception to offer proof that no reflective thought occurred. The State has not done so here. Again, this Court does not and cannot make its own determination of during the call.” Dissenting op. at 27. No evidence shows that the victim was disoriented or just awakening when she called the police. The evidence of her inebriation is that around 3:00 a.m. her blood-alcohol content was between 0.14 and 0.26 deciliters per gram, most likely between 0.16 and 0.18. Even prior to the incident, over four hours before the call, she was able to walk on her own, and the evidence indicates that she did not consume more alcohol after that point. 12 The dissent cites to two Fourth District Court of Appeal decisions to show that speaking to a third party before calling the police does not necessarily prevent statements from being excited utterances. This is true, but those cases do not apply here. Akien v. State does not describe the victim’s emotional state on the phone. 44 So. 3d 152 (Fla. 4th DCA 2010). Evans v. State does, and in that case, the victim was “in shock . . . stunned and extremely concerned that she was still in danger.” 248 So. 3d 155, 159 (Fla. 4th DCA 2018). Additionally, Evans explicitly stated that if time has passed between the startling event and the statement, the statement cannot be an excited utterance unless “at the time of the statement, the declarants were either ‘hysterical,’ severely injured, or subject to some other extreme emotional state sufficient to prevent reflective thought.” Id. (quoting Blandenburg, 890 So. 2d at 170). Evans supports our conclusion. This does not mean that the victim’s statements were not credible; it means only that they were not excited utterances. 10 whether the statement was true. We may consider only whether the statement qualified as an excited utterance for purposes of an exception to inadmissible hearsay. B Having found that admission of the recording was error, we next determine whether that error was harmless. In making this determination, it is not enough to say that the evidence would have been sufficient to support the conviction without the improperly admitted evidence, or even whether the evidence would have been overwhelming. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986) (noting that the test for harmless error “is not a sufficiency- of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test”). See also Johnson v. State, 53 So. 3d 1003, 1005 n.3 (Fla. 2010) (emphasizing that harmless error is not determined by showing “overwhelming evidence” of guilt). The focus must be on the effect that the error had on the jury’s verdict. The harmless error test requires the State to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So. 2d at 1138. Put another way, “[t]o say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” United States v. Pon, 963 F.3d 1207, 1227 (11th Cir. 2020) (citing Yates v. Evatt, 500 U.S. 391, 403 (1991)). In short, an appellate court cannot find an error harmless simply by noting that the jury could have found the defendant guilty without the erroneously admitted evidence. The court must consider whether the erroneously admitted evidence was an important part of the State’s case. Here, the recording was the only direct evidence of the victim’s lack of consent and the only evidence where the jury heard directly from the victim, who was distressed in the recording and reported that she had been raped. 13 In spite 13 The dissent notes that the forensic examiner testified that the victim “reported that she had been sexually assaulted.” 11 of other evidence that supported the State’s contention that the victim did not consent, it cannot show that there is no reasonable possibility that the recording contributed to the verdict. For these reasons, we reverse and remand for a new trial. While Schluck may have identified other errors below, in view of our reversal we do not address the additional issues he asserts. OSTERHAUS, J., concurs; MAKAR, J., dissents with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ MAKAR, J., dissenting. A jury convicted Andrew M. Schluck, age forty, of illegally entering the dormitory of a nineteen-year-old college freshman and raping her during the early morning hours of Thursday, August 31, 2017. A part of the evidence against Schluck was a one-minute audio recording of the victim’s call to the university police upon awakening that morning and discovering that she had been sexually assaulted. The trial judge allowed the jury to hear the call, which was both legally permissible and an appropriate exercise of the broad discretion that trial judges have in such circumstances. Because the majority concludes to the contrary, and reverses Schluck’s convictions for burglary and sexual assault, I dissent. I. This case presents an all too familiar scene: a young co-ed is targeted for sexual predation while vulnerable from a night of Dissenting op. at 30. This evidence was admitted explicitly as a statement for the purposes of medical diagnosis or treatment under section 90.803(4), Florida Statutes, and therefore does not constitute direct evidence of the victim’s lack of consent. 12 social drinking. The victim’s early morning call to university police after she awoke must be understood in this context because the victim was sexually assaulted while severely intoxicated and made the call to university police soon after regaining awareness. The victim had just begun her fall semester at Florida State University and was in a sorority. Both she and her high school friend, also a sorority sister, had started in the summer session. They decided to go out with a group of their sorority sisters to socialize on a Wednesday evening, leaving campus about 10pm and walking to a nearby dance club (“Tenn”) where they stayed until 1am. They then walked to a friend’s home adjacent to the campus, returning to the university grounds around 3am, where they lived in different dormitories. (“Everything is walking distance at FSU. So we walked from our dorm to the bar. We walked from the bar to our friend’s. And then we walked from our friend’s back home.”). As undergraduates tend to do, regrettably, both the victim and her friend had consumed lots of alcohol despite Florida’s drinking age of twenty-one, so much so that both were “definitely” drunk according to the friend, who had seen the victim both sober and tipsy in the past. The victim’s degree of intoxication was so severe that she “was barely able to walk” and “farther gone” than the friend had ever seen her. Both drank heavily before leaving campus and also while at the dance club (where bartenders poured them drinks without requesting identification), but they did not drink thereafter. As they returned to the FSU campus and walked to the victim’s dormitory at around 3:30am, Schluck—whom neither had previously met—was lingering outside and approached them at the student entrance. He attempted to chat them up, commenting on the victim’s drunken state and asking how much alcohol she had consumed. At no point was Schluck invited to assist or enter the dorm, yet he did so anyway, ostensibly to be helpful, but the friend was suspicious and took a picture of him (because he “wasn’t like a friend . . . [who’d] come in just for a second” to assist). Video evidence shows Schluck following closely behind both women (with his cellphone in hand trying to get their social media accounts) as they scurried into the dormitory. The reason why the friend did not 13 order Schluck to leave the dormitory was because it didn’t “cross [her] mind that [Schluck] wouldn’t have been a college student.” As it turns out, Schluck was not a student and he was illegally on campus. University police had issued a trespass notice against him in 2015 precluding him from entering or being anywhere on the FSU campus at any time. Nonetheless, he was loitering outside the victim’s dormitory in the wee hours of a weekday morning, entering the campus and then the dormitory in direct violation of the no trespass order. The victim, who had difficulty getting her access card from her purse and opening the door, went into her room with her friend, again with Schluck closely following them. At this point, the friend “told him, no, you can’t come in here, get out. And [she] shut the door kind of forcefully, [and] locked it.” Once in the dorm room, the friend locked the door with the inside deadbolt. She spoke briefly to the victim, who was “still very drunk” and “her speech was definitely slurred.” The friend, who instructed the victim to lock the deadbolt from inside upon the friend’s departure (because the friend had no way to lock the room from the outside without an access card), left when the victim went to bed. (“My plan was to get her back to her dorm and then I would walk back to mine.”). As she departed the dormitory, the friend noticed Schluck loitering in the hallway, again seeking her name and social media information at which “point [she] was pretty freaked out” and “swiftly walked” away. Because she believed the victim would safely lock herself in her own dorm room, she departed at 3:35am, believing that Schluck had done the same. Surveillance video showed, however, that Schluck left the dormitory at 7:14am after engaging in sex with the victim in her dorm room despite her extreme degree of intoxication and the prior admonitions for him to stay away and leave. The victim, who had difficulty recalling the assault due to her intoxication, awoke and made a call to university police at 7:44am, stating in the one- minute recorded call that “I think I was, like, raped last night” and that she did not know who the perpetrator was; her voice was 14 stressed, frail, and overwrought. An officer was immediately dispatched. The victim was interviewed by police officials and soon thereafter was taken by an FSU investigator to a local hospital to undergo examination with a so-called “rape kit” that entails completely disrobing and submitting to a full body evaluation, surrendering clothing items for evaluation and evidence, and having vaginal and oral secretions collected. Kathy Walker, the forensic examiner, testified that the victim “reported a vague recollection of the assault” in her dorm room where she was in “a kind of transient state between sleep and awake.” The victim said that she may have been “drugged” based on “how she felt,” so a toxicology report—which required that the victim provide a blood sample—was prepared because “it was a short time between what happened to her and when she reported” the incident. When asked on cross-examination why she considered it a “short time,” Walker testified that “[m]ost people—actually studies have told us that— people don’t report [sexual assault] for a few days. And [the victim] reported within a few hours.” Results of the rape kit plus a court-ordered penile swab later obtained from Schluck established conclusively that Schluck’s DNA was present in victim’s cervix; the odds being “greater than 700-billion times more likely” that the male profile was from Schluck. Intoxication of the victim was substantial, even many hours after the sexual assault. At 10:45am on the day of the incident, her blood sample had an alcohol content of 0.063, which is a bit under Florida’s threshold for driving under the influence (DUI) (0.08), but still very high given she had not consumed alcohol in at least eight hours. This degree of late-morning intoxication means that her blood alcohol level eight hours earlier at around 3am would have been between 0.14 and 0.26 based on a widely accepted retrograde extrapolation that uses scientific principles and a mathematical formula, one that is often used to prove that a driver was intoxicated at an earlier time when an accident occurred. See, e.g., Vitiello v. State, 281 So. 3d 554, 558 (Fla. 5th DCA 2019). Females and younger persons tend to eliminate alcohol from their blood faster than males and older persons, so the estimated blood 15 alcohol level of the victim at 3am would tend to be toward the higher estimate of 0.26. In explaining the victim’s likely degree of impairment at the time of the sexual assault and when she made the call to university police, crime laboratory analyst Tyler Scott testified that alcohol depresses the central nervous system, resulting in a range of effects on brain functions including drowsiness, decreased wakefulness, and reduced mental cognition, body control, and muscle coordination. At the upper range of the intoxication estimate for the victim at 3am (0.26), a person would likely be in a “stupor” and “very close to unconsciousness” including inability to pay attention, lack of alertness, and “muscle incoordination” to the point of inability to control movement. (“They can’t walk. They can’t talk. They can’t perform movement. They’re going to be very confused, disoriented at the .26.”). At the lower range (0.14), the individual would be in a confused state where muscular coordination is impaired. (“It should be evident at the .14 that you’re not able to control your body as well as you should be.”). In addition, slurred speech, impaired judgment, inattentiveness, lethargy, and depressed wakefulness would be evident. Whether at the upper or lower range, it would be apparent that the person was under the influence of alcohol or a drug that impaired mental and physical abilities. (“If you were around that individual it should be apparent that they had consumed alcohol or some type of drug that would cause this impairment.”). Based on the testimony of the victim’s friend, the victim’s father, the police officers involved in the investigation and collection of evidence, and the toxicologists, as well as the video and documentary evidence (including the one-minute call to university police), the jury found Schluck guilty of (a) burglary of 16 an occupied dwelling during which a battery of the victim occurred; 1 and (b) sexual battery. 2 II. On appeal, Schluck argues, in part, that admission of the call to university police (a) “was a fundamental error that violated [his] right to be confronted with the witnesses against him,” including the victim who did not testify, and (b) was error because it was not “an excited utterance.” A preliminary matter is whether Schluck preserved either of these two related claims. Pre-trial, Schluck raised a generic hearsay objection to the call’s admission. Argument at the pre-trial hearing focused exclusively on whether the State had a basis for overcoming his hearsay objection. After Schluck’s counsel objected on hearsay grounds, the following discussion occurred in response: THE COURT: Okay. Well, you have somebody that’s going to authenticate it as a public record? 1 The jury determined no assault occurred, which is consistent with the evidence that the victim may not have been mentally aware of a threat made to her; plus, an assault is not necessary to prove that a battery occurred. Goswick v. State, 143 So. 2d 817, 820 (Fla. 1962) (“A battery necessarily includes some actual physical contact with the victim, such as by striking him with the weapon which is employed. By contrast an assault does not require physical contact.”); Kirby v. State, 68 So. 3d 932, 933 (Fla. 5th DCA 2011) (“Assault and battery are separate and distinct offenses because they proscribe different acts.”). 2 The jury did not find that the victim was “physically helpless,” which would have escalated the sentencing range; instead, it concluded that the sexual encounter was non- consensual, meaning that “intelligent, knowing, and voluntary consent” was lacking. The jury was entitled to conclude that the victim was unable to consent due to a high level of intoxication affecting her mental state, but that her physical helplessness was not established beyond a reasonable doubt. 17  [THE STATE]: Yeah. The IT person will authenticate it as the audio recording from the system. And then . . . a friend [of the victim] will authenticate her voice. THE COURT: Okay. [THE STATE]: As well as the fact that she was upset at the time of the call. THE COURT: Okay. Overruled. (Emphasis added.) The trial court plainly understood that the State was seeking admission of the call as a “public record,” i.e., one authenticated from the university police’s audio recording system, which is an exception to the hearsay rule. 3 That the judge spoke the words “public record” (to which the State affirmatively agreed (“Yeah”)) in direct and immediate response to Schluck’s hearsay objection, is most reasonably understood as relating to the public records hearsay exception; why else would the trial judge have then denied the objection in his next breath? 4 The trial court later overruled Schluck’s renewed hearsay objection during the 3 See § 90.803(8), Fla. Stat. (2021) (public records and reports); see also Charles W. Ehrhardt, 1 Fla. Prac., Evidence, § 401.4 (Audio tape recordings) (2021 ed.) (“There is no list of requirements that must be met to authenticate. This authentication may be supplied by the technician who operated the device or by any other person with knowledge. The identity of the speaker may be established by the testimony of a person who can identify the voice, by circumstantial evidence, or by a voiceprint.”). Subsection (8) excludes from criminal cases “matters observed by a police officer or other law enforcement personnel,” but the exclusion was not invoked below and does not appear to be applicable here. 4 It is incorrect to say that the State didn’t “explicitly” raise any hearsay exception until it responded to Schluck’s untimely post-trial confrontation clause objection and that “Schluck argued that the evidence was hearsay and the court immediately denied the objection.” 18 trial when the call was formally authenticated as a public record and a friend of the victim identified her voice. On appeal, however, Schluck has not challenged the trial court’s ruling in favor of the State on the basis upon which admission was actually permitted, i.e., that the call was an official public record. He has thereby waived his ability to contest the call’s admissibility on this basis, i.e., that it is admissible hearsay under the official public records exception. 5 See generally Philip J. Padovano, Fla. App. Prac. § 8.10 (Waiver) 177 (2018 ed.) (“A point that was raised before the trial court but not addressed in the brief or petition filed in the appellate court cannot be used as a ground for reversal. Failure to pursue the argument on appeal or review is a waiver of the point.”). While the State appeared to abandon the public record exception in the post-trial proceedings, that does not foreclose this Court from affirming under the tipsy coachman doctrine. 6 See Blount v. State, 152 So. 3d 29, 30 (Fla. 1st DCA 2014) (affirming criminal conviction under tipsy coachman doctrine); Taylor v. State, 146 So. 3d 1