DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DONOVAN JONATHAN TILLMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-2516

[August 23, 2017]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Barbara A. McCarthy, Judge; L.T. Case No. 

11001165CF10A.

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, 

Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant challenges his conviction and sentence for four counts of 

sexual battery and two counts of lewd or lascivious molestation of a minor 

by a person under the age of eighteen. He raises four main issues as to 

his conviction, and we affirm as to all, addressing three, as well as his 

sentence. First, he claims that the court abused its discretion in refusing 

to allow his mother to sit through the pretrial suppression hearing and 

trial after the state invoked the rule of sequestration, because the state 

had listed the mother in discovery as a “Class C” witness who was not 

expected to be called.1 We conclude that the court did not abuse its 

discretion, given the State’s representation that the mother could be called 

as a rebuttal witness and the fact that this was a familial crime. Second, 

 

1 Rule 3.220, Fla. R. Crim. P. defines the various categories of witnesses who may 

be called. Category C witnesses are all witnesses who perform ministerial 

functions or whom the prosecutor does not intend to call at trial, or whose 

knowledge is fully set out in a police report.
2

appellant contends that the court erred in denying a motion to suppress 

his statements to a detective, which were given without the warnings 

required of Miranda v. Arizona, 384 U.S. 436 (1966). The court did not err, 

however, in finding that appellant was not in custody and thus Miranda 

warnings were not compelled. Finally, we reject his claim that he was 

convicted of a nonexistent crime, as contact between the tongue and a 

sexual organ constitutes sexual battery. We also affirm appellant’s 

sentence based upon Davis v. State, 199 So. 3d 546 (Fla. 4th DCA 2016).

Appellant, who was sixteen or seventeen at the time of the incidents, 

was charged with sexual battery and lewd or lascivious molestation for 

abuse of his cousin, who was five or six years old at the time of the 

incidents, which occurred at the victim’s home as well as the home of 

another relative. The sexual battery incidents involved appellant placing 

his mouth over the victim’s penis and having the victim do the same to 

appellant. The lewd and lascivious counts were incidents where appellant 

touched the victim’s penis both above and beneath his clothes. In two 

statements to investigators appellant admitted the incidents, although he 

sought to suppress the more incriminating statement. The victim also 

made a statement, through a therapist, confirming the abuse. Appellant

was convicted after trial of all counts and ultimately sentenced to 31.125 

years in prison, the lowest permissible sentence for the charges. He 

appeals his convictions on various grounds.

In his first issue, appellant claims that the court erred in excluding his 

mother from the courtroom. At the suppression hearing, and again at 

trial, appellant sought to have his mother remain in the courtroom. The 

prosecutor objected on the ground that the State might call the mother as 

a witness and invoked the rule of sequestration.2 Noting that in the 

discovery request the mother was listed as a Class C witness, the defense 

objected to the mother’s exclusion. Pursuant to rule 3.220(b), Florida

Rules of Criminal Procedure, “Class C” witnesses are witnesses who 

perform ministerial functions or whom the prosecutor does not intend to 

call at trial, or whose knowledge is fully set out in a police report. Because 

the mother was neither a witness who performed ministerial functions nor 

whose knowledge was set out in a police report, the defense argued that 

the mother was a “witness” that the State did not intend to call at trial;

therefore, sequestration should not apply to the mother. Nevertheless, the 

trial court excluded the mother from the hearing as well as from the trial.

 

2 In his brief he also claims his stepfather was also improperly excluded, but at 

trial he conceded that his stepfather might be a witness and could be 

sequestered. 
3

“The rule in Florida and elsewhere is that the trial judge is endowed 

with a sound judicial discretion to decide whether particular prospective 

witnesses should be excluded from the so-called sequestration of 

witnesses rule.” Spencer v. State, 133 So. 2d 729, 731 (Fla. 1961). When 

a party requests that witnesses be excluded from trial under the 

sequestration rule, then generally, the trial court will exclude all 

prospective witnesses from the courtroom, in order to avoid the witnesses’ 

testimony being colored by what he or she hears from other testifying 

witnesses. Id.; Goodman v. W. Coast Brace & Limb, Inc., 580 So. 2d 193, 

194 (Fla. 2d DCA 1991). Where the trial court exercises its discretion in 

excluding a witness or allowing a witness to remain in the courtroom, it is 

the complaining party’s burden to show an abuse of discretion which 

caused injury. Spencer, 133 So. 3d at 731.

We cannot say that under the rule the trial court abused its discretion 

in excluding appellant’s mother. The prosecutor maintained that he might 

call the mother on rebuttal, depending upon whether the appellant 

testified and what he said. While the mother had no direct knowledge of 

the incidents, she was the sister of the victim’s mother. The victim’s 

mother had called appellant’s mother when she discovered that her son 

was abused by appellant. Shortly after that call, appellant texted his aunt,

expressing regret for the incidents. Thus, at the very least, the mother 

must have confronted her son about her sister’s accusations. And what 

he said to her could have been very relevant to the prosecution. Because 

of the familial relationships involved, the trial court was within its 

discretion in determining that appellant’s mother should be excluded from 

the courtroom so that her testimony, if necessary, would not be affected

by what she might hear from other testifying witnesses, including her 

sister and the appellant, if he testified.

In a second claim of error, appellant argues that the court erred in 

denying his motion to suppress his confession to a detective. Appellant 

made two statements to police. The first was to a Pembroke Pines detective 

and the second to a Coral Springs detective. Appellant filed a motion to 

suppress statements he made to the Coral Springs detective on grounds 

that, although he wasn’t under arrest, this was a custodial interrogation 

and he was not read his Miranda rights.3 The trial court held a hearing 

 

3 Appellant waived his Miranda rights in the first statement and confessed to 

some of the same incidents as were contained in the second statement. However, 
4

and concluded that the defendant was not in custody and thus, the 

statement was voluntary. The appellate court defers to the trial court’s 

findings regarding the facts and uses the de novo standard of review for 

legal conclusions. Nshaka v. State, 82 So. 3d 174, 178-79 (Fla. 4th DCA 

2012).

Miranda warnings apply only to in-custody interrogations. Ross v. 

State, 45 So. 3d 403, 414 (Fla. 2010). In Ramirez v. State, 739 So. 2d 568 

(Fla. 1999), the Florida Supreme Court explained that determining 

whether a suspect is in custody for purposes of giving Miranda warnings 

is a mixed question of law and fact. It set forth a four factor test to 

determine whether a person is in custody:

(1) the manner in which police summon the suspect for 

questioning; (2) the purpose, place, and manner of the 

interrogation; (3) the extent to which the suspect is confronted 

with evidence of his or her guilt; (4) whether the suspect is 

informed that he or she is free to leave the place of 

questioning. 

739 So. 2d at 574. The court found that the defendant in Ramirez was in 

custody at the time his statement was taken. The officers, who already 

had probable cause to arrest the defendant, took him to the station and 

interrogated him in a small room, confronting the defendant with evidence 

of his guilt. Significantly, the court noted that the officers never told the 

defendant that he was free to leave.

Applying the Ramirez factors to the facts of this case, we agree with the 

trial court that the appellant was not in custody such that Miranda 

warnings were required. Appellant was brought to the stationhouse by his 

mother in the middle of the afternoon at the request of the detective, who 

had left a message on the mother’s phone. His mother remained in the 

lobby during the questioning. In contrast, in Ramirez, a uniformed and 

armed deputy came to Ramirez’s home demanding production of evidence 

of the murder and burglary and then asked Ramirez to come with him to 

the station. Clearly, the manner that Ramirez was summoned for 

questioning was far more coercive than the manner in which appellant

arrived for questioning.

As to the second and third factors, the interrogation of appellant must 

 

the second statement was more detailed than the first and contained appellant’s 

admission of abuse of two other children. 
5

be placed in the context that this was appellant’s second interrogation 

regarding the same abuse allegations. He had already admitted the 

allegations of abuse to the Pembroke Pines detective, after having waived 

his Miranda rights. Thus, the appellant knew of the purpose of the 

interrogation, and the Coral Springs detective told appellant that she had 

read the report of the other detective. Then the detective began by simply 

asking the appellant to tell her what he remembered. At no time did she 

read back to him his own prior statements. She did not confront him with 

victim statements for the crimes for which he was charged, although she 

did imply that another victim had told her of sexual contact with appellant. 

Mainly, she simply kept prodding him to remember the various incidents 

with the victim. While he was questioned in the interrogation room, and 

the court considered whether the door was locked, there was no testimony 

from the detective that the door was locked. And the appellant seemed 

relatively relaxed at the beginning. He agreed with the detective that he 

was there of his own accord. Finally, as to the fourth factor, and contrary 

to what occurred in Ramirez, the detective told the appellant he was free 

to leave at any time. She even explained to him exactly how he could exit 

the building, and he said he understood that he could leave, and he did 

leave at the end of the interview.

In sum, the four Ramirez factors do not point to a conclusion that 

appellant was in custody such that Miranda warnings had to be 

administered. The court properly denied the motion to suppress.

We affirm the remaining issues arising out of the trial. As to his claim 

that the court erred in allowing experts to express opinions based upon 

studies rather than training and experience, the issue was not properly 

preserved by a specific objection which raised the ground now argued in 

this appeal. Appellant also claims that the court erred in allowing 

collateral crime evidence of his abuse of another family member to which 

he confessed in his statement to the detective. Under section 90.404(2)(b), 

Florida Statutes (2013), and McLean v. State, 934 So. 2d 1248 (Fla. 2006), 

we conclude that the evidence was admissible. Even if either of the 

foregoing issues were error, we would conclude that they were harmless 

beyond a reasonable doubt, given his two confessions. State v. DiGuilio, 

491 So. 2d 1129 (Fla. 1986).

Appellant also challenges his sentence of thirty-one years, followed by 

fifteen years’ probation, as a violation of the Cruel and Unusual 

Punishment Clauses, because it is a lengthy term-of-years sentence for a

non-homicide crime which he committed as a juvenile. His crimes were 

committed prior to the enactment of Chapter 2014–220, which revamped 
6

juvenile sentencing but expressly made the law prospective. We have 

already decided this issue against his position in Davis v. State, 199 So. 

3d 546 (Fla. 4th DCA 2016); see also Rollins v. State, 216 So. 3d 644 (Fla. 

4th DCA 2017). We certify the same question as we certified in Davis:

DO THE SENTENCE REVIEW PROVISIONS ENACTED IN 

CHAPTER 2014–220, LAWS OF FLORIDA, APPLY TO ALL 

JUVENILE OFFENDERS WHOSE SENTENCES EXCEED THE 

STATUTORY THRESHOLDS, EVEN THOSE CONVICTED OF 

NON–HOMICIDE OFFENSES COMMITTED PRIOR TO JULY 1, 

2014?

For the foregoing reasons, we affirm both the convictions and 

sentences.

CIKLIN and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.