FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D22-1890
LT Case No. 2017-CF-051466-A
_____________________________
JOSEPH BLOW,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Brevard County.
Tesha Ballou, Judge.
Matthew J. Metz, Public Defender, and Joshua T. Mosley and George D.
E. Burden, Assistant Public Defenders, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee and Deborah Chance,
Assistant Attorney General, Daytona Beach, for Appellee.
September 29, 2023
SOUD, J.
Appellant Joseph Blow appeals his convictions for sexual
battery and trespass and his resulting ten-year prison sentence.
We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App.
P. 9.030(b)(1)(A). We affirm, holding that while the trial court
erred in excluding Appellant’s testimony of two alleged previous
consensual sexual encounters with the victim, such error was
harmless.
I.
Appellant was charged with burglary of a dwelling with
assault or battery, a first-degree felony punishable by life in
prison, and sexual battery, under section 794.011, Florida
Statutes, a second-degree felony. It was alleged that during the
middle of the night Appellant entered the victim’s residence she
shared with her boyfriend, stealthily made his way to her bedroom
where she was sleeping, sexually battered the victim, and then left
the residence.
The victim testified that she was sleeping on her stomach and
was awakened when the sheets were pulled off her. Believing it
was her boyfriend, she allowed intercourse. However, when the
person believed to be her boyfriend did not return to the bedroom,
the victim got up and found her boyfriend asleep on the couch,
where he had been the entire time. After confirming her boyfriend
did not have intercourse with her, the distraught victim called 911.
As part of law enforcement’s investigation, Appellant’s DNA
was found inside of the victim’s body. Thereafter, Appellant was
arrested, interviewed by detectives, and ultimately charged.
During his recorded interview, when asked if he recalled
anything about sexual battery on the night in question, Appellant
initially told detectives that he did not recall anything at all and
that he “wasn’t there.” Later he claimed “she [the victim] owed me
money” because “this lady [the victim, known to him as “Bigs”]
does drugs.” When a detective attempted to ask further questions
about this statement, Appellant recanted, saying he thought
“Bigs” was talking about “something else” and reiterated
numerous times he “wasn’t there” at the victim’s residence.
Appellant later claimed this same lady gave him manual
stimulation but that he never went to her house.
After repeated questioning by detectives about whether he
mistakenly went to the wrong apartment and entered the victim’s
residence instead of her neighbor’s residence, Appellant claimed to
2
not remember anything but said “I guess it happened.” Thereafter,
he told the detectives:
Detective: Are you sorry that it happened?
Appellant: Yes, ma’am, I am.
Detective: Okay. So if she were right here
right now what would you tell
her?
Appellant: Tell her so much man. I felt so
bad. I’d give all this up. I’d give it
all up.
At no time did Appellant claim he had consensual intercourse with
the victim—even when told that his DNA was found in the body of
the victim.
At trial, Appellant’s defense was that the victim consented to
the sexual intercourse. He testified on his own behalf, claiming
that he met the victim approximately a month and a half before
the night in question and that he had consensual intercourse with
the victim that night in exchange for Percocet tablets. The trial
court prohibited Appellant from testifying that he had twice before
engaged in sexual intercourse with the victim in exchange for
drugs.
The jury returned a verdict of guilty of lesser-included
offenses of battery and trespass on Count I1 and guilty of sexual
battery as charged in Count II. Appellant was sentenced to ten
years in prison on Count II and sixty days in jail on the lesser-
included trespass. This appeal followed.
II.
Appellant argues the trial court reversibly erred by excluding
Appellant’s testimony of his alleged two consensual sexual
encounters with the victim prior to the night of the sexual battery
1Based upon double jeopardy principles, the trial court
vacated the guilty verdict on the lesser-included battery.
3
charged. While Appellant is correct the trial court erred, we hold
such error was harmless.
A.
1.
The trial court’s ruling excluding Appellant’s testimony of two
alleged prior consensual sexual encounters will not be reversed
unless the trial court’s decision constitutes an abuse of discretion.
See Song v. Jenkins, 48 Fla. L. Weekly D665 (Fla. 5th DCA Mar.
31, 2023) (quoting McCray v. State, 919 So. 3d 647, 649 (Fla. 1st
DCA 2006)). However, the trial court’s exercise of its discretion
over such evidentiary matters is restrained by the Florida
Evidence Code and the applicable case law. Thorne v. State, 271
So. 3d 177, 183 (Fla. 1st DCA 2019); see also Johnson v. State, 863
So. 2d 271, 278 (Fla. 2003) (“The trial court’s discretion is limited
by the rules of evidence.”). The trial court’s interpretation of those
authorities is subject to de novo review. Thorne, 271 So. 3d at 183.
2.
Our analysis starts at the beginning. All relevant evidence is
admissible unless such evidence is excluded by law, see § 90.402,
Fla. Stat. (2022), such as when the probative value of such
evidence is substantially outweighed by the danger of unfair
prejudice, see § 90.403, Fla. Stat., or is otherwise excluded by the
Florida Evidence Code. Relevant evidence is defined as that
tending to prove or disprove a material fact. See § 90.401, Fla. Stat.
Chapter 794 governs the crime of sexual battery. Section
794.022, Florida Statutes, sets forth rules of evidence designed to
“protect[] a sexual battery victim’s privacy from unwarranted
public intrusion by restricting the admissibility of evidence
relating to the victim[’s] character and prior consensual sexual
activity.” C. Ehrhardt, Florida Evidence § 404.7 (2023 ed.). Section
794.022 is often referred to as the “rape shield” statute.
“The rape shield law does not exclude evidence that would
otherwise be admissible under the Florida Evidence Code; instead,
section 794.022 is a codification of Florida’s relevance rules as
applied to the sexual behavior of victims of sexual crimes.” Thorne,
4
271 So. 3d at 183 (quoting Teachman v. State, 264 So. 3d 242, 246
(Fla. 1st DCA 2019)).
Florida’s rape shield law provides in part:
Specific instances of prior consensual sexual
activity between the victim and any person other
than the offender may not be admitted into
evidence in a prosecution under s. 787.06,
s. 794.011, or s. 800.04. However, such evidence
may be admitted if it is first established to the
court in a proceeding in camera that such
evidence may prove that the defendant was not
the source of the semen, pregnancy, injury, or
disease; or, when consent by the victim is at
issue, such evidence may be admitted if it is first
established to the court in a proceeding in
camera that such evidence tends to establish a
pattern of conduct or behavior on the part of the
victim which is so similar to the conduct or
behavior in the case that it is relevant to the
issue of consent.
§ 794.022(2), Fla. Stat. (emphasis added). The plain text of the
statute makes clear that the instances of a victim’s prior sexual
history excluded from evidence are those that are (i) consensual
and (ii) between the victim and any person other than the
defendant on trial. See Gomez v. State, 245 So. 3d 950, 953 (Fla.
4th DCA 2018); McLean v. State, 754 So. 2d 176, 182 (Fla. 2d DCA
2000) (“The Rape Shield Statute . . . prohibits evidence of specific
instances of prior consensual activity between the victim and any
person other than the offender in sexual battery cases.”).
In the case sub judice, Appellant’s defense at trial was
consent. While he properly was permitted to testify as to the
purported arrangement between him and the victim on the night
in question—that is, the victim consented to sexual intercourse in
exchange for Percocet pills—he was not permitted to testify that
he and the victim engaged in sex on two prior occasions on the
same terms. Such testimony is relevant as it tended to prove his
asserted defense.
5
Further, such testimony of the two alleged prior encounters is
not excluded from evidence by the rape shield statute. This
testimony concerned alleged consensual sexual activity of the
victim with Appellant, not “any person other than” Appellant as
expressly contemplated by the rape shield law. See § 794.022(2),
Fla. Stat. 2 Since the testimony concerning the two alleged prior
encounters between the victim and Appellant was relevant and not
excluded by the Florida Evidence Code or the rape shield statute,
the trial court’s exclusion of this testimony was error. 3
B.
The State argues, however, that any error in this regard was
harmless. As the beneficiary of the error, the State has the burden
to demonstrate beyond a reasonable doubt that the error was
harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
To determine whether an error is harmless, this Court must
review the entire record, including a close examination of the
permissible evidence on which the jury could have legitimately
relied, and in addition an even closer examination of the excluded
2 Since Appellant’s testimony concerns alleged prior sexual
activity of the victim with Appellant and not another individual,
the two exceptions within section 794.022(2) do not apply to this
case and need not be considered.
3 Even if the rape shield were to apply, the Florida Supreme
Court has considered the reach of the rape shield statute when it
hinders a defendant’s constitutional right to present a full and fair
defense and determined
a victim of a sexual assault should not be
subjected to having her sexual history brought
up in open court, but . . . where . . . application
of this rule interferes with confrontation rights,
or otherwise precludes a defendant from
presenting a full and fair defense, the rule must
give way to the defendant’s constitutional
rights.
Lewis v. State, 591 So. 2d 922, 925 (Fla. 1991).
6
evidence which might have possibly influenced the jury verdict.
See id.
Harmless error is not a device for the appellate
court to substitute itself for the trier-of-fact by
simply weighing the evidence. The focus is on the
effect of the error on the trier-of-fact. The
question is whether there is a reasonable
possibility that the error affected the verdict. The
burden to show the error was harmless must
remain on the state. If the appellate court
cannot say beyond a reasonable doubt that the
error did not affect the verdict, then the error is
by definition harmful.
Id. at 1139 (emphasis added).
Having reviewed the record before us, we conclude the State
has met its burden and established beyond a reasonable doubt that
the error was harmless. There exists no reasonable possibility the
error affected the jury’s verdict.
Given Appellant’s defense that the victim consented to the
intercourse in exchange for Percocet pills, the jury was called upon
to resolve the conflicting accounts. To do so, the central question
for the jury was the credibility of the victim versus the credibility
of Appellant. In its closing argument, the State encouraged the
jury to compare the victim’s testimony with her 911 call and to
likewise compare Appellant’s testimony to his recorded interview
with detectives.
The victim’s testimony before the jury was that she was raped
in her bedroom by an unknown person who was not her boyfriend.
Her testimony is substantially the same as reflected in her 911
call, during which the victim was highly emotional and, at times,
sobbing. The substance of her statements to the dispatcher,
together with the circumstances and her mental state during the
call, were before the jury.
In sharp contrast, Appellant’s testimony differed wildly from
his interview with detectives. Having chosen to speak to law
enforcement officers and waive his Miranda rights, he never told
7
detectives that the victim consented. Indeed, he vacillated between
claims that (i) the victim owed him money, (ii) he in fact knew her
as Bigs, (iii) he did not even know the victim, (iv) he was not
familiar with her residence, (v) nothing sexual happened, and (vi)
the victim manually stimulated him (but not at her residence). He
further told detectives, upon their questioning, (vii) “I guess it
happened.” When asked if he was sorry it happened, Appellant
said (viii) “Yes, ma’am, I am.” If given the opportunity to talk with
the victim, Appellant indicated he would (ix) “Tell her so much
man. I felt so bad. I’d give all this up. I’d give it all up.”
At trial Appellant’s defense was based entirely upon his own
testimony—and, thus, would rise or fall depending upon the
credibility the jury afforded his testimony. Appellant testified that
he had known the victim for about a month and a half, had met
her twice previously, including a “meeting” at her apartment
(though she kept him away from her boyfriend), 4 and then testified
to his version of what occurred on the night in question: “hurried”
sexual intercourse after being invited into the apartment, and that
he left the victim one and a half Percocet pills. Appellant also
acknowledged before the jury that he was a four-time convicted
felon, which is pertinent to the jury’s consideration of the
credibility to be afforded his testimony, 5 and that he had been
drinking the day of the encounter with the victim.
While Appellant was erroneously prohibited from testifying
that this occurred on two prior occasions, Appellant’s brief proffer
makes clear the excluded testimony would have been quite limited.
In his proffer, Appellant admitted he sold drugs. His intended
testimony as to the prior encounters would have included only that
it occurred twice in the approximately month and a half he knew
the victim, once at a park and once at the victim’s apartment, and
that the arrangement was the same as he alleged existed on the
night in question—sex in exchange for Percocet pills. Appellant
was unable to provide any information as to specifically when
4 This testimony seems to imply to the jury the reason the
victim would have kept Appellant away from her boyfriend while
“meeting” Appellant in her apartment.
5 See Fla. Std. Jury Instr. (Crim.) 3.9.
8
these alleged prior encounters occurred. There was no additional
witness or other corroborating evidence of consent excluded by the
trial court’s ruling.
Had the proffered testimony been admitted, the jury would
have been faced with the same question: the credibility of the
victim’s accusation of rape and that of Appellant’s claim of consent.
And they would have been left with the same evidence to consider
in making their determination: the substance of each’s testimony,
the victim’s 911 call, and Appellant’s recorded interview with
detectives.
Simply stated, Appellant’s consent defense depended entirely
on his own testimony. Given the substantial conflict between
Appellant’s trial testimony and his interview with detectives,
together with his four prior felony convictions, the record makes
plain that Appellant’s credibility before the jury was severely
diminished. Considering the very limited nature of the proffered
testimony in this context, there is no reasonable possibility that
the error affected the jury’s verdict. Therefore, the verdict should
remain undisturbed.
III.
Accordingly, as the trial court’s error in excluding Appellant’s
testimony of two alleged prior consensual encounters with the
victim was harmless, the judgment and sentence is AFFIRMED.
It is so ordered.
KILBANE, J., concurs.
LAMBERT, J., concurs in part and dissents in part with opinion.
9
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
10
Case No. 5D22-1890
LT Case No. 2017-CF-051466-A
LAMBERT, J., concurring, in part, and dissenting, in part.
I concur with the majority’s analysis and opinion that the
trial court erred when it applied Florida’s rape shield law to
exclude testimony regarding the two alleged prior acts of
consensual sexual activity between Appellant and the victim.
The dispositive question in this appeal is whether this
evidentiary error committed by the trial court was harmless. In
other words, whether the State has met its burden to establish,
beyond a reasonable doubt, that this error “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 1135.
I acknowledge the trial evidence of the victim’s 911 call and
that during his interview with law enforcement, Appellant did not
discuss any prior consensual sexual activity with the victim and
initially denied being present at the victim’s residence. That said,
evidence of two similar and recent consensual sexual encounters
with the victim goes directly to and significantly strengthens
Appellant’s sole defense that the incident that resulted in his
conviction was similarly consensual. By limiting Appellant to
testifying that he and the victim had previously “met” and thus,
according to Appellant, mischaracterizing the extent of their prior
relationship, the jurors were without a material piece of
information to consider during their deliberations. Instead, they
were left with the victim testifying that this one-time occurrence
was not consensual, with Appellant testifying that it was.
Moreover, the trial court’s ruling impacted Appellant’s
constitutional right of confrontation under the Sixth Amendment
as it prevented his cross-examination of the State’s key witness
about their alleged prior consensual sexual activities.
Applying the language of DiGuilio, 491 So. 2d at 1139 (“The
burden to show the error was harmless must remain on the state.
If the appellate court cannot say beyond a reasonable doubt that
the error did not affect the verdict, then the error is by definition
11
harmful.”), and based upon my review of the record, I cannot
conclude, beyond a reasonable doubt, that the State has met its
burden to show that the trial court’s error in excluding testimony
about prior, similar consensual activity between Appellant and the
victim did not affect the verdict. Accordingly, I respectfully
dissent.
12