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Shrader v. State

Florida Court of Appeals, Second District

August 23, 2019

GEORGE O. SHRADER, DOC #101103, Appellant,
v.
STATE OF FLORIDA, Appellee.

          Appeal from the Circuit Court for Hillsborough County; Emmett L. Battles, Judge.

          Howard L. Dimmig II, Public Defender, and Richard J. D'Amico, Special Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

         EN BANC

          BADALAMENTI, JUDGE.

         Florida Rule of Appellate Procedure 9.331 authorizes a district court of appeal to rehear, on its own motion or on motion of a party, a prior panel's decision. The rule calls for a majority of the judges in active service to agree to rehear a case en banc, which, for our court, is nine judges. See Fla. R. App. P. 9.331(a), (d)(1). Thirteen judges of this court concurred with a decision to proceed en banc and, accordingly, withdrew the panel opinion in Shrader v. State, 41 Fla.L.Weekly D2080 (Fla. 2d DCA Sept. 7, 2016), withdrawn 42 Fla.L.Weekly D2455b (Fla. 2d DCA Nov. 17, 2017). For the reasons explained, we grant the State's Motion for Rehearing En Banc.

         I. INTRODUCTION

         A grand jury returned a three-count indictment charging George Shrader with one count of first-degree murder and two counts of sexual battery with a deadly weapon (a knife or any other sharp object) or actual physical force likely to cause serious personal injury. A jury convicted Shrader of both sexual battery counts and of the first-degree felony murder count. See §§ 782.04(1)(a)(2)(c), 794.011(3), Fla. Stat. (1985). The court subsequently sentenced him to a term of life imprisonment on each of the three counts. After careful review of the trial record, the appellate briefs, and the parties' supplemental briefs addressing Knight v. State, 186 So.3d 1005 (Fla. 2016), we affirm Shrader's felony murder and sexual battery convictions and corresponding life sentences.

         II. FACTUAL BACKGROUND

         The evidence adduced at trial, viewed in the light most favorable to the State, established the following facts: Three decades ago in the early morning hours of January 27, 1986, a law enforcement officer discovered the dead body of a female victim lying in the middle of a dirt road. She had been stabbed thirty-six times and was wearing only a T-shirt. She lay in a pool of her own blood, and her body was still warm to the touch despite it being bitterly cold that morning. The officer noticed that there were signs of a struggle in the area where the victim lay.

         Crime scene technicians collected swabs from the victim's vagina and anus as part of a rape-kit protocol. They also collected soil samples containing drops of blood leading away from her body. Those drops of blood did not belong to the victim. The investigation went cold. In 2007, a cold case committee consisting of current and former law enforcement officers, representatives of the State Attorney's and Medical Examiner's offices, and the Biology and Forensics Division of Florida's Department of Law Enforcement recommended that the Hillsborough County Sheriff's Office reopen the case of the unsolved murder of the victim described above. Three years later, a Florida statewide DNA database yielded a match between the DNA collected from the victim's rape kit and Shrader's DNA.

         The State brought Shrader to trial in 2013. During the State's case-in-chief, it presented physical evidence and the testimony of seventeen witnesses. Sergeant Robert King of the Hillsborough County Sherriff's Office testified that he discovered the victim's dead body on the early morning of January 27, 1986. The victim's body lay in the middle of a dirt road in an undeveloped peninsula in Hillsborough County known as Whiskey Stump.

         Sergeant King described that morning as "bitterly cold" and the temperature as being in the "high 20s, low 30s." Despite the low temperature, the victim's neck was warm to the touch, and Sergeant King observed steam emanating from the victim's dead body. Moreover, the victim was not dressed for cold weather. She was almost completely nude, save for a yellow T-shirt. In fact, the victim was not dressed in any of the clothing witnesses observed her wearing earlier in the evening, when she was hitching a ride from an establishment known as the Happy Days Lounge to another establishment known as the East Side Lounge.

         Sergeant King testified that when he observed the crime scene, he saw "signs of what appeared to be a struggle right there." The State published photographs to the jury of the crime scene and of the victim's slain body. She had been stabbed thirty-two times in the front, side, and back of her body, and she was found lying in a large pool of her own blood, which stained her bare buttocks and thighs. The photographs also displayed four additional wounds-three to her left upper arm and one to her right hand-which the medical examiner testified were defensive in nature. The State presented evidence demonstrating that Shrader's DNA matched not only blood drops leading away from the victim's body, but also semen found inside the victim's vagina and anus.

         When cold case investigators Detective Chris Fox and Special Agent James Noblitt interviewed Shrader on January 31, 2011, and February 18, 2011, Shrader denied ever knowing the victim and denied ever having been to Whiskey Stump. And when they showed him a photograph of the victim, Special Agent Noblitt noticed that Shrader immediately looked away without even examining the photo. At the conclusion of their second interview, Special Agent Noblitt invited Shrader to call them if he remembered being with the victim. Despite having repeatedly denied knowing the victim throughout the interview, Shrader responded that he would "meditate and think and see" if he could "figure out what's going on."

         The State further presented evidence that Shrader's right hand bore newly acquired cuts to his pinky and ring fingers on January 27, 1986, which was the very same day that Sergeant King had found the victim's body. On that day, Shrader had those cuts sutured at Tampa General Hospital, and when he appeared at the Hillsborough County Courthouse that day to have his fingerprints taken for an unrelated matter, Shrader was unable to give any prints from his right hand because of those recently sutured cuts.

         Shrader told a doctor that he received the cuts while working as a roofer. But when one of Shrader's then-roommates inquired as to how he cut his fingers, Shrader told her a different story-that he injured his hand on a nail sticking up from a bannister at their apartment. The roommate testified that she had never gotten more than a scratch from the nail in question and that even her children managed to avoid getting injured by the nail on the bannister.

         When Detective Fox and Special Agent Noblitt asked Shrader in February 2011 about the cuts he received on his right hand back in 1986, Shrader claimed that he cut his hand on a knife while reaching into a dishwasher. But Shrader's roommate from that time would testify that they did not even own a dishwasher and that, at any rate, Shrader never washed dishes. And when the cold case investigators asked Shrader where he received his sutures back on January 27, 1986, Shrader responded: "At the hospital." But when asked which hospital, Shrader hesitantly claimed that he did not recall. Shrader then changed his story and claimed that he never received sutures at all, before finally answering that he did not remember one way or another.

         At the close of the State's case-in-chief, Shrader moved for judgment of acquittal on the two sexual battery counts and the felony murder theory, arguing that the State's evidence failed to establish that any sexual battery had occurred. Specifically, defense counsel argued:

It is a reasonable hypothesis to assume that at some point, if the [S]tate is arguing that Mr. Shrader killed this decedent, that there's no evidence produced by the [S]tate to prove that they did not have consensual sex; and, then ultimately, later, she was killed. That activity of sex would have occurred before the killing and therefore would not be sexual battery if it was consensual in nature.

         Defense counsel continued: "The State is trying to prove sexual battery, I would argue, through circumstantial evidence." The trial court denied Shrader's motion, ruling that after "[l]ooking at the evidence in the light most favorable to the [S]tate, . . . there is competent, substantial evidence for this to go forward." The court thus submitted the case to the jury for its consideration. The jury returned verdicts of guilty as charged.

         III. APPELLATE PROCEDURAL HISTORY

         A split panel of our court reversed Shrader's convictions and sentences. See Shrader, 41 Fla.L.Weekly at D2082-83.[1] The thrust of the panel's opinion centered on the State's purported lack of evidence to prove that the sexual intercourse between the slain victim and Shrader was nonconsensual. See id. at D2082-83. The panel's dissenting opinion cited the supreme court's opinion approving the Fifth District Court of Appeal's decision in Knight v. State, 107 So.3d 449 (Fla. 5th DCA 2013), approved, 186 So.3d 1005 (Fla. 2016).

         The State timely filed a motion for panel rehearing and, alternatively, a motion for rehearing en banc, asserting that this case is one of exceptional importance and was in conflict with decisions of this court. The State set forth its two core concerns in its introductory paragraph of its motion for rehearing. Specifically, it argued that the panel opinion was contrary to decisions of our court because it effectively (a) retried the case or reweighed the evidence and (b) did not heed the principle of law that a "victim's consent is a jury issue." Motion for Rehearing, Rehearing En Banc (Sept. 22, 2016) (citing Bradford v. State, 460 So.2d 926 (Fla. 2d DCA 1984); State v. Hudson, 397 So.2d 426 (Fla. 2d DCA 1981)). On November 9, 2016, the panel granted the State's motion for panel rehearing. But the panel's order did not vacate its prior panel opinion.[2]The panel solely sought supplemental briefing on Knight v. State, 186 So.3d 1005 (Fla. 2016), and gave no indication in that order that it would address the core issues raised by the State in its motion for rehearing.

         An overwhelming supermajority of the judges of this court, thirteen of the fifteen participating in the vote, concurred in an order vacating the panel's decision. Order Withdrawing Opinion, 2016 WL 4649190 (Nov. 17, 2017). The dissent accuses this court of acting beyond its legal authority by vacating the panel opinion and proceeding en banc with this appeal. Simply stated, contrary to the dissent's assertion, there was no infringement of the constitutional authority of a three-judge panel.[3]

         Florida Rule of Appellate Procedure 9.331(a) permits en banc review either when the case or issue is of exceptional importance or when review by the entire court is necessary to maintain uniformity in the court's decisions. As will be explained, the panel opinion vacated by this court is legally inconsistent with prior opinions of this court and the Florida Supreme Court. See Chase Fed. Sav. & Loan Ass'n v. Schreiber, 479 So.2d 90, 91, 93 (Fla. 1985) (explaining that "district courts are free to develop their own concepts of decisional uniformity" and "[c]onsistency of decisions within each district is essential to the credibility of the district courts"). After careful consideration of the issues raised in the State's motion for rehearing en banc, this court chose to exercise its duty to hear this case en banc. It did so to address the concerns raised by the State in its motion for rehearing on which Knight has little or no bearing.

         As set forth in detail below, the panel opinion deviated from settled principles of law by, at a minimum, (1) usurping the jury's role to determine issues of consent, (2) reweighing evidence, (3) constructing "could have" views of the evidence in the light most favorable to a criminal defendant, not the State, and (4) substituting its judgment for that of the jurors, who found Shrader guilty of felony murder and two counts of felony sexual battery. It is the duty of this en banc court to ensure uniformity in the rule of law as much as it is the prerogative of this en banc court to vacate a panel opinion that is simply incorrect, misleading, and disruptive to the settled rule of law.[4]

         IV. DISCUSSION

         "In reviewing a motion for judgment of acquittal, a de novo standard of review applies." Starks v. State, 223 So.3d 1045, 1048 (Fla. 2d DCA 2017) (quoting Pagan v. State, 830 So.2d 792, 803 (Fla. 2002)).[5] "Generally, a motion for judgment of acquittal should be denied '[i]f, 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.'" Westbrooks v. State, 145 So.3d 874, 877 (Fla. 2d DCA 2014) (alteration in original) (quoting Pagan, 830 So.2d at 803); see also Lynch v. State, 293 So.2d 44, 45 (Fla. 1974) ("The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law." (emphasis added)). As our supreme court has explained:

Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge.

Lynch, 293 So.2d at 45.[6]

         As an initial matter, Shrader has maintained throughout this appeal that the special circumstantial evidence standard applies, even in light of our supreme court's Knight decision. Our supreme court has described the circumstantial evidence standard as follows: "Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt[, ] a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Knight, 186 So.3d at 1009 (alteration in original) (quoting Jaramillo v. State, 417 So.2d 257, 257 (Fla. 1982)). In Knight, the supreme court

expressly [held] that the circumstantial evidence standard of review applies only where all of the evidence of a defendant's guilt-i.e., the evidence tending to show that the defendant committed or participated in the crime-is circumstantial, not where any particular element of a crime is demonstrated exclusively by circumstantial evidence.

Id. at 1010 (emphasis added).

         Firmly grounded in his position that the special circumstantial evidence standard applies, Shrader argues that because the State neglected to present sufficient evidence inconsistent with what he contends is a reasonable hypothesis of innocence, the jury's convictions for the two sexual battery charges and the felony murder charge predicated upon those sexual battery charges must be reversed. Specifically, he maintains that the State did not produce sufficient evidence inconsistent with his reasonable hypothesis of innocence that the sexual acts upon the victim were consensual and that the killing occurred sometime later. We reject his argument.

         First, we note that Knight clarified that the general judgment of acquittal standard, not the special circumstantial evidence standard, applies where there is evidence tending to show that the defendant committed or participated in the crime. Here, the State did not present wholly circumstantial evidence supporting Shrader's guilt for sexual battery with a deadly weapon or actual physical force likely to cause serious personal injury. Under the facts of this case, Shrader's DNA found inside the victim is direct evidence of Shrader's participation in the crime of sexual battery. Indeed, this is so because Shrader denied even knowing the victim, let alone having sexual contact with her. See § 794.011(1)(i), (3); Fla. Std. Jur. Instr. (Crim.) 11.2, Sexual Battery. Specifically, during Detective Fox and Special Agent Noblitt's interviews with Shrader, Shrader denied ever knowing the victim and denied ever having been to Whiskey Stump. This physical evidence is direct evidence that Shrader, at a minimum, had sexual contact with the victim, whose slain body was found at Whiskey Stump near droplets of Shrader's blood leading away from the victim's body. Cf. Lightbourne v. State, 438 So.2d 380, 391 (Fla. 1983) (determining that "[v]iable sperm and semen traces . . . discovered in the victim's vagina indicat[ed] sexual relations at approximately the time of death" and therefore supported a finding of sexual battery); Burkell v. State, 992 So.2d 848, 854 (Fla. 4th DCA 2008) ("Footprints and blood-DNA may operate as direct evidence for some specific issues. For example, footprints may directly establish a person was at a certain place in spite of denying ever being there. Blood-DNA analysis may settle the identity of the one contributing a specimen.").[7] Stated another way, Shrader's semen-DNA is direct evidence that he had sexual contact with the victim, and his blood-DNA evidence found near her deceased body is direct evidence that he was present at Whiskey Stump.[8]

         A law enforcement officer discovered the victim's "warm" body on the "extremely, extremely bitterly cold" morning of January 27, 1986, in an area called Whiskey Stump. The victim was lying in the middle of a dirt road, in full view of any passerby, surrounded by blood spatters. She had been stabbed thirty-six times, was without the clothes she was wearing earlier that night, and was wearing only a yellow T-shirt. The assistant medical examiner who analyzed the victim's body opined that the victim was probably killed where her body was found. It is undisputed that semen containing Shrader's DNA was found inside of the victim's vagina and anus. It is likewise undisputed that blood found in the soil at the scene of the murder matched Shrader's DNA and that Shrader had cuts on his right hand later that morning which prevented him from giving fingerprints. The State presented testimony from an investigating officer that prior to being confronted with DNA evidence that he had sex with the victim, Shrader not only denied that he and the victim had any sexual contact but completely denied ever having met the victim or otherwise knowing who she was. Clearly, the DNA evidence left behind in his blood and semen contradicts that version of events.

         Shrader's inconsistencies do not stop there. One of Shrader's then-roommates testified at trial that on the night of the murder Shrader came home with a bleeding hand. Shrader gave no fewer than three inconsistent accounts of how he cut his hand on the night of the murder. The roommate testified that Shrader first told her he had cut his fingers on a nail sticking up from a bannister outside of their apartment. On the morning after the murder, Shrader appeared in a courthouse in Hillsborough County for reasons unrelated to the murder in this case. Shrader was unable to have his right hand fingerprinted due to cuts on his pinky, ring finger, and middle finger. Later that same day, when Shrader went to have his fingers sutured at Tampa General Hospital, he informed his attending doctor that he had cut his hand while working as a roofer. After the case was reopened leading to this conviction, Shrader was interviewed by two officers from the Florida Department of Law Enforcement. In the course of the interview, Shrader told the officers that he cut his hand on a knife while reaching into a dishwasher. Shrader's then-roommate contradicted Shrader's account by testifying that Shrader never washed the dishes while they were roommates and that they did not even own a dishwasher. Indeed, whether Shrader's multiple evasions revealed a consciousness of guilt was for the jury to determine. See Straight v. State, 397 So.2d 903, 908 (Fla. 1981) ("When a suspected person in any manner attempts to escape or evade a threatened prosecution by flight, concealment, resistance to lawful arrest, or other indications after the fact of a desire to evade prosecution, such fact is admissible, being relevant to the consciousness of guilt which may be inferred . . . ." (emphasis added)).

         Taken together, the evidence more than supports the trial court's denial of Shrader's motion for judgments of acquittal. See McWatters v. State, 36 So.3d 613, 634 (Fla. 2010) (holding that a jury could have reasonably inferred that a murder victim did not consent to sex with defendant where disturbed dirt was found surrounding her dead body and where she had damaged undergarments; also holding that a jury could have reasonably inferred that another of the defendant's murder victims did not consent to sex with defendant where her body was found nude from the waist down, her shirt and bathing suit top were pushed up into the armpit area, her sandals were found approximately twelve feet apart from one another, and her jeans were found stained with grass or dirt); Williams v. State, 967 So.2d 735, 755-56 (Fla. 2007) (holding that a jury could have reasonably inferred lack of consent to sex where police discovered the victim completely nude, found her blood-stained shorts and panties under her bed, and found bite marks on her breast and back and in the general area of her groin); Fitzpatrick v. State, 900 So.2d 495, 509 (Fla. 2005) (determining evidence was sufficient to support conviction of felony murder with sexual battery as the underlying felony where a victim who had her throat slit "was found naked with her bloody undergarment wrapped around her waist near her breasts" and had suffered from a mix of other physical injuries); Taylor v. State, 583 So.2d 323, 329 (Fla. 1991) (holding that extensive physical injuries suffered by victim were inconsistent with defendant's hypothesis that he briefly had consensual vaginal sex with her followed by consensual oral sex), declined to follow on other grounds by Brown v. State, 755 So.2d 616 (Fla. 2000); cf. State v. Ortiz, 766 So.2d 1137, 1142-43 (Fla. 3d DCA 2000) (determining that a prima facie case for sexual battery had been established where "victim was found beaten and virtually nude in an isolated wooded area of a park with her shirt pulled up around her head and her shorts down around her ankles").

         The trial court did not err in denying Shrader's motion for judgment of acquittal. Our system of justice is based on a jury making these factual determinations, not judges. This is especially true where, as here, the disputed issue involves consent, which our court has previously held falls squarely within the province of the jury to decide. See State v. Hudson, 397 So.2d 426, 428 (Fla. 2d DCA 1981) ("Questions of consent, force, resistance and fear are particularly within the province of the jury to determine." (emphasis added) (citing Berezovsky v. State, 335 So.2d 592, 593 (Fla. 3d DCA 1976), rev'd in part on other grounds, 350 So.2d 80 (Fla. 1977))). Our court has explained that because mental intent is seldom proved by direct evidence, "the absence of direct proof on the question of the defendant's mental intent should rarely, if ever, result in a judgment of acquittal." Wallace v. State, 764 So.2d 758, 760 (Fla. 2d DCA 2000) (quoting Ehrlich v. State, 742 So.2d 447, 450-51 (Fla. 4th DCA 1999)). The same logic applies to circumstantial evidence of a victim's consent to violent contact- particularly where the victim is unavailable to testify. See State v. Clyatt, 976 So.2d 1182, 1184 (Fla. 5th DCA 2008) ("We see no distinction between the use of circumstantial evidence to prove state of mind in these contexts and the State's attempted use of circumstantial evidence to prove the victim's lack of consent in this battery case.").

         Next, we reject the dissent's suggestion that lack of physical trauma to a victim's vagina or rectum implies that the victim necessarily consented to sexual activity. The assistant medical examiner testified that "there was no physical evidence of bruising, lacerations, or tearing in any of the orifices, such as the vagina or rectum." He then clarified:

It doesn't mean that sexual battery didn't take place. It just meant that there was no physical evidence of bruising, lacerations, or tearing in any of the orifices, such as the vagina or rectum were left [sic]. And, of course, you have many people who are raped in which you don't see the evidence of this type of thing, but we didn't see that in this case.

         (Emphasis added.)

         The victim here falls into the latter category-those who do not show evidence of sexual trauma. Viewing the medical examiner's testimony in the light most favorable to the State, the medical examiner's testimony shows nothing more than that the victim of sexual battery here, like "many" other victims of sexual batteries, was left without bruising, lacerations, or tearing of her orifices. Our court would necessarily need to weigh the medical examiner's testimony in favor of Shrader to conclude that the sexual contact with the victim was consensual because it did not leave bruising, lacerations, or tearing of the victim's orifices. No court should weigh the evidence in such a manner when viewing the evidence in the light most favorable to the State or the jury's guilty verdict. See Fitzpatrick, 900 So.2d at 508; Bradford, 460 So.2d at 930 ("We are not allowed to retry a case or reweigh the conflicting evidence submitted to the jury."). The trial court followed the law and correctly denied Shrader's motion for judgment of acquittal. Cf. McKee v. State, 33 So.2d 50, 52 (Fla. 1947) ("The trial court refused to disturb the finding of the jury, and for this court to do so would amount to a substitution of our judgment for that of the jury, in an area where we would be little, if any, short of judicial meddlers."); Bradford, 460 So.2d at 930 ("We must limit our concern to whether, after all conflicts in the evidence and all reasonable inferences derived therefrom have been resolved in favor of the verdict, there is substantial, competent evidence to support the verdict and judgment.").

         Lastly, Shrader contends the trial court abused its discretion by denying his motion for mistrial based on his allegation that he was denied a fair trial because the jury had been tainted by certain jurors possibly having been briefly exposed to a newspaper article regarding Shrader. The record demonstrates that the trial court thoroughly investigated this allegation and supports the trial court's factual finding that the jury had not been tainted. Accordingly, we conclude the trial court did not abuse its discretion in denying the motion for mistrial. See England v. State, 940 So.2d 389, 401-02 (Fla. 2006) ("A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial." (citing Snipes v. State, 733 So.2d 1000, 1005 (Fla. 1999))).

         We conclude that Shrader has not demonstrated the trial court committed any reversible error. We thus affirm his convictions and life sentences.

         Affirmed.

          KHOUZAM, CJ, and CASANUEVA, SILBERMAN, VILLANTI, MORRIS, BLACK, SLEET, ROTHSTEIN-YOUAKIM, and SMITH, JJ, Concur.

          LaROSE and ATKINSON, JJ, Concur in result only.

          LUCAS, J., Concurring.

          I concur fully with the court's decision to proceed en banc to withdraw the panel opinion in Shrader v. State, 41 Fla.L.Weekly D2080 (Fla. 2d DCA Sept. 7, 2016), withdrawn 42 Fla. L Weekly D2455b (Fla. 2d DCA Nov. 17, 2017). I also concur with the court's affirmance of Mr. Shrader's convictions and sentences. I write separately to more fully address an important point that our dissenting colleague presses. Whatever may be said of the vagaries inherent in Florida Rule of Appellate Procedure 9.331(d)(1)'s open-ended text, to my mind, the matter before us possesses all the attributes of a case of "exceptional ...


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