127 So. 3d 622
Fla. Dist. Ct. App.2013Background
- Defendant Larry Douglas Jones (37) met a 16-year-old via MySpace and had sexual relations on three occasions; charged with three counts of unlawful sexual activity with a minor by a person 24+ (Fla. Stat. § 794.05(1)).
- At arrest, an officer examined the defendant’s driver’s license and testified to the birth date on the license; the State did not introduce a certified copy of the license into evidence.
- Defense objected to the officer’s testimony about the date of birth as inadmissible hearsay; State argued the license information was an adoptive admission by the defendant.
- Trial court overruled the objection; jury acquitted on two counts and convicted on one; 80 points for penetration were added to the scoresheet; defendant sentenced to 12 years.
- Majority affirmed, holding the license date was admissible as an adoptive admission (possession/handing over ties defendant to contents); dissent argued admission was hearsay and no Florida precedent supports treating possession of ID as adoption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of driver's license date as evidence of defendant's age | Officer’s testimony of the DOB from the license is admissible because the defendant handed over/possessed the license, manifesting adoption of its contents | Testimony is inadmissible hearsay; possession/handing over does not transform an out-of-court written assertion into an admission | Majority: admissible as an adoptive admission; possession (or handing over) ties defendant to contents; trial court did not abuse discretion |
| Sentencing: adding 80 points for penetration when verdict form didn’t distinguish penetration vs. union | Facts about penetration are proper for judge consideration at sentencing even if jury verdict form doesn’t parse those terms | Defendant argued jury did not make finding permitting penetration points | Court: no error; such facts are traditionally considered by judges at sentencing |
Key Cases Cited
- United States v. Paulino, 13 F.3d 20 (1st Cir. 1994) (possession of documents can be adoptive admission when circumstances tie possessor to contents)
- United States v. Ospina, 739 F.2d 448 (9th Cir. 1984) (documents in defendant’s possession admissible as adoptive admissions when acted on)
- United States v. Marino, 658 F.2d 1120 (6th Cir. 1981) (tickets and receipts in defendant’s possession admitted as adoptive admissions)
- Gordon v. State, 66 A.3d 647 (Md. 2013) (defendant’s presentation of driver’s license to officer permitted admission of license contents as adoptive admission)
- Holborough v. State, 103 So.3d 221 (Fla. 4th DCA 2012) (officer’s testimony about a third party’s ID is inadmissible hearsay where the person is not a party)
- Riggins v. State, 67 So.3d 244 (Fla. 2d DCA 2010) (officer’s testimony about a temporary tag’s handwritten date was hearsay and not admissible)
- Neira v. State, 847 So.2d 1134 (Fla. 4th DCA 2003) (judges may consider trial observations or PSI facts, including sexual offense details, at sentencing)