final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Bay County. Brantley S.
Clark, Jr., Judge.
Thomas, Public Defender, and M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Julian E. Markham, Assistant
Attorney General, Tallahassee, for Appellee.
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.
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.
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.
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
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 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.
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.
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
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 ...