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Allen v. State

Florida Court of Appeals, First District

January 2, 2020

Scott Ernest Allen, Appellant,
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Bay County. Brantley S. Clark, Jr., Judge.

          Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.

          Lewis, J.

         Appellant, Scott Ernest Allen, appeals his convictions and sentences for sexual battery on a person less than twelve years of age, video voyeurism, and seven counts of sexual performance by a child, arguing that the trial court erred by denying his motion for judgment of acquittal. For the reasons that follow, we disagree and affirm.


         Appellant was charged with sexual battery on a person less than twelve years of age (Count 1), lewd or lascivious molestation (Counts 2 and 3), video voyeurism (Counts 4 and 5), sexual performance by a child (Counts 6 through 12), and possession of sexual performance by a child (Counts 13 through 127). Only Counts 1, 4, and 6 through 12 are at issue in this appeal. Counts 1 and 6 through 12 alleged that the crimes were committed against C.Y, and each of Counts 6 through 12 referenced a separate image file. Count 4 alleged that the crime was committed against S.S.

         At Appellant's jury trial, S.S. testified that on August 17, 2016, at the age of fourteen, she was shopping for pants at Goodwill when she observed that whenever she went into the dressing room, Appellant pushed his pants under the stall. S.S. saw Appellant's phone in the pocket of his pants and observed that he was bending down and pushing them with his hand further into her stall. S.S. thought Appellant was recording her and was certain he was not just grabbing his pants off the floor because of the way he was moving them with his hand.

         On September 10, 2016, the law enforcement officer who responded to the Goodwill incident recognized Appellant and executed an outstanding warrant for his arrest. The police found inside Appellant's work truck two cellphones, including a Motorola xt1080 in a glass jar, flash drives in the same jar, and CDs/DVDs. Based on the discovery on the flash drives, Appellant's home was searched pursuant to a warrant. The police removed the hard drive of the computer located in Appellant's living room and positively identified C.Y. and her mother, E.Y., in the photographs and videos in evidence.

         Christopher Wilkinson, a digital forensics and Photoshop expert, examined the flash drives found in Appellant's truck and found on them videos and images taken in dressing rooms, which were admitted as Williams[1] rule evidence. One of the flash drives contained videos taken in Appellant's bathroom, which showed devices turned towards the shower, Appellant's face or tattoos, and E.Y. using the bathroom. That same flash drive also contained seven images of C.Y., which were the bases of the charges in Counts 6 through 12. One of those images showed "a child whose panties are being pulled aside by what appears to be an adult male with a tattoo of a, it looks like a handcuff key in his middle finger." The remaining images depicted the same child and same male and all seven images were created on November 27, 2015. One of those photographs showed a penis touching C.Y.'s mouth; she "appeared to be unconscious" in the picture, which was taken at 3:01 a.m. Wilkinson had over fourteen years of training and experience in reviewing and identifying images of child pornography, he had reviewed millions of images, and he was trained to identify victims of child pornography. In his expert opinion, Appellant's penis was touching C.Y.'s face in the photograph. The image that preceded that photograph and the image that followed it were taken at 2:56 a.m. and 3:09 a.m. and contained Appellant's identifiers. Wilkinson knew the hand in the photographs belonged to Appellant based on the finger tattoo and the biometric information. Wilkinson enlarged the photographs and from the biometric data obtained a fingerprint that turned out to be a match to Appellant. The seven images were accessed on Appellant's home computer and were not modified.[2]

         E.Y., Appellant's sister-in-law and the alleged victim in Count 5, testified that she and her children spent Thanksgiving of 2015 with her sister and Appellant. The only other male in Appellant's home during the visit was E.Y.'s elderly father, who was in poor health and needed assistance getting around. Looking at the photographs in evidence, E.Y. identified Appellant, his bathroom, and herself and testified that she did not give him permission to video record her while she was using the bathroom. The photographs in evidence depicted Appellant's hand and C.Y., who was five years old at the time. During the night of November 27, 2015, Appellant had the opportunity to be alone with C.Y. because the children slept in the living room and Appellant would sometimes stay up with them.

         The defense moved for a judgment of acquittal. As to Count 1, Appellant argued that the State presented no proof that it was him in the photograph and that there was actual touching/union. As to Count 4, Appellant argued that the State presented no proof that there was a recording of S.S. With regard to Counts 6 through 12, the defense argued as follows:

Although the Court did see a picture, argumentatively, sexual in nature, I would argue that the statutory elements . . . have not been met.
There's no indication that [Appellant] fully authorized or induced any sort of child to engage in any sexual performance or being a custodian who authorized such. There are some pictures the Court has seen where there may be some touching of the garments in which there is a sexual organ exposed in all the pictures on either the person doing the taking of the picture or the person there. The child appears to be asleep. There doesn't appear to be any evidence that the statutory elements of this particular offense have been met. And I would argue that although there is a ...

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