FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D22-1890

LT Case No. 2017-CF-051466-A

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JOSEPH BLOW,

Appellant,

 v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Brevard County.

Tesha Ballou, Judge.

Matthew J. Metz, Public Defender, and Joshua T. Mosley and George D. 

E. Burden, Assistant Public Defenders, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee and Deborah Chance, 

Assistant Attorney General, Daytona Beach, for Appellee.

September 29, 2023

SOUD, J.

Appellant Joseph Blow appeals his convictions for sexual 

battery and trespass and his resulting ten-year prison sentence. 

We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. 

P. 9.030(b)(1)(A). We affirm, holding that while the trial court 

erred in excluding Appellant’s testimony of two alleged previous 
2

consensual sexual encounters with the victim, such error was 

harmless.

I.

Appellant was charged with burglary of a dwelling with 

assault or battery, a first-degree felony punishable by life in 

prison, and sexual battery, under section 794.011, Florida 

Statutes, a second-degree felony. It was alleged that during the 

middle of the night Appellant entered the victim’s residence she 

shared with her boyfriend, stealthily made his way to her bedroom 

where she was sleeping, sexually battered the victim, and then left 

the residence.

The victim testified that she was sleeping on her stomach and 

was awakened when the sheets were pulled off her. Believing it 

was her boyfriend, she allowed intercourse. However, when the 

person believed to be her boyfriend did not return to the bedroom, 

the victim got up and found her boyfriend asleep on the couch, 

where he had been the entire time. After confirming her boyfriend 

did not have intercourse with her, the distraught victim called 911.

As part of law enforcement’s investigation, Appellant’s DNA 

was found inside of the victim’s body. Thereafter, Appellant was 

arrested, interviewed by detectives, and ultimately charged.

During his recorded interview, when asked if he recalled 

anything about sexual battery on the night in question, Appellant 

initially told detectives that he did not recall anything at all and 

that he “wasn’t there.” Later he claimed “she [the victim] owed me 

money” because “this lady [the victim, known to him as “Bigs”]

does drugs.” When a detective attempted to ask further questions 

about this statement, Appellant recanted, saying he thought 

“Bigs” was talking about “something else” and reiterated 

numerous times he “wasn’t there” at the victim’s residence.

Appellant later claimed this same lady gave him manual 

stimulation but that he never went to her house.

After repeated questioning by detectives about whether he 

mistakenly went to the wrong apartment and entered the victim’s 

residence instead of her neighbor’s residence, Appellant claimed to 
3

not remember anything but said “I guess it happened.” Thereafter, 

he told the detectives:

Detective: Are you sorry that it happened? 

Appellant: Yes, ma’am, I am. 

Detective: Okay. So if she were right here 

right now what would you tell 

her?

Appellant: Tell her so much man. I felt so 

bad. I’d give all this up. I’d give it 

all up.

At no time did Appellant claim he had consensual intercourse with 

the victim—even when told that his DNA was found in the body of 

the victim.

At trial, Appellant’s defense was that the victim consented to 

the sexual intercourse. He testified on his own behalf, claiming 

that he met the victim approximately a month and a half before 

the night in question and that he had consensual intercourse with 

the victim that night in exchange for Percocet tablets. The trial 

court prohibited Appellant from testifying that he had twice before 

engaged in sexual intercourse with the victim in exchange for 

drugs.

The jury returned a verdict of guilty of lesser-included 

offenses of battery and trespass on Count I1 and guilty of sexual 

battery as charged in Count II. Appellant was sentenced to ten 

years in prison on Count II and sixty days in jail on the lesserincluded trespass. This appeal followed.

II.

Appellant argues the trial court reversibly erred by excluding

Appellant’s testimony of his alleged two consensual sexual 

encounters with the victim prior to the night of the sexual battery 

1 Based upon double jeopardy principles, the trial court 

vacated the guilty verdict on the lesser-included battery.
4

charged. While Appellant is correct the trial court erred, we hold 

such error was harmless.

A.

1.

The trial court’s ruling excluding Appellant’s testimony of two 

alleged prior consensual sexual encounters will not be reversed 

unless the trial court’s decision constitutes an abuse of discretion.

See Song v. Jenkins, 48 Fla. L. Weekly D665 (Fla. 5th DCA Mar. 

31, 2023) (quoting McCray v. State, 919 So. 3d 647, 649 (Fla. 1st 

DCA 2006)). However, the trial court’s exercise of its discretion 

over such evidentiary matters is restrained by the Florida 

Evidence Code and the applicable case law. Thorne v. State, 271 

So. 3d 177, 183 (Fla. 1st DCA 2019); see also Johnson v. State, 863 

So. 2d 271, 278 (Fla. 2003) (“The trial court’s discretion is limited 

by the rules of evidence.”). The trial court’s interpretation of those 

authorities is subject to de novo review. Thorne, 271 So. 3d at 183.

2.

Our analysis starts at the beginning. All relevant evidence is 

admissible unless such evidence is excluded by law, see § 90.402, 

Fla. Stat. (2022), such as when the probative value of such 

evidence is substantially outweighed by the danger of unfair 

prejudice, see § 90.403, Fla. Stat., or is otherwise excluded by the 

Florida Evidence Code. Relevant evidence is defined as that 

tending to prove or disprove a material fact. See § 90.401, Fla. Stat.

Chapter 794 governs the crime of sexual battery. Section 

794.022, Florida Statutes, sets forth rules of evidence designed to 

“protect[] a sexual battery victim’s privacy from unwarranted 

public intrusion by restricting the admissibility of evidence 

relating to the victim[’s] character and prior consensual sexual 

activity.” C. Ehrhardt, Florida Evidence § 404.7 (2023 ed.). Section 

794.022 is often referred to as the “rape shield” statute.

“The rape shield law does not exclude evidence that would 

otherwise be admissible under the Florida Evidence Code; instead, 

section 794.022 is a codification of Florida’s relevance rules as 

applied to the sexual behavior of victims of sexual crimes.” Thorne, 
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271 So. 3d at 183 (quoting Teachman v. State, 264 So. 3d 242, 246 

(Fla. 1st DCA 2019)).

Florida’s rape shield law provides in part:

Specific instances of prior consensual sexual 

activity between the victim and any person other 

than the offender may not be admitted into 

evidence in a prosecution under s. 787.06, 

s. 794.011, or s. 800.04. However, such evidence 

may be admitted if it is first established to the 

court in a proceeding in camera that such 

evidence may prove that the defendant was not 

the source of the semen, pregnancy, injury, or 

disease; or, when consent by the victim is at 

issue, such evidence may be admitted if it is first 

established to the court in a proceeding in 

camera that such evidence tends to establish a 

pattern of conduct or behavior on the part of the 

victim which is so similar to the conduct or 

behavior in the case that it is relevant to the 

issue of consent.

§ 794.022(2), Fla. Stat. (emphasis added). The plain text of the 

statute makes clear that the instances of a victim’s prior sexual 

history excluded from evidence are those that are (i) consensual 

and (ii) between the victim and any person other than the 

defendant on trial. See Gomez v. State, 245 So. 3d 950, 953 (Fla. 

4th DCA 2018); McLean v. State, 754 So. 2d 176, 182 (Fla. 2d DCA 

2000) (“The Rape Shield Statute . . . prohibits evidence of specific 

instances of prior consensual activity between the victim and any 

person other than the offender in sexual battery cases.”).

In the case sub judice, Appellant’s defense at trial was 

consent. While he properly was permitted to testify as to the 

purported arrangement between him and the victim on the night 

in question—that is, the victim consented to sexual intercourse in 

exchange for Percocet pills—he was not permitted to testify that 

he and the victim engaged in sex on two prior occasions on the 

same terms. Such testimony is relevant as it tended to prove his 

asserted defense.
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Further, such testimony of the two alleged prior encounters is 

not excluded from evidence by the rape shield statute. This 

testimony concerned alleged consensual sexual activity of the 

victim with Appellant, not “any person other than” Appellant as 

expressly contemplated by the rape shield law. See § 794.022(2), 

Fla. Stat.2 Since the testimony concerning the two alleged prior 

encounters between the victim and Appellant was relevant and not 

excluded by the Florida Evidence Code or the rape shield statute, 

the trial court’s exclusion of this testimony was error.3

B.

The State argues, however, that any error in this regard was 

harmless. As the beneficiary of the error, the State has the burden 

to demonstrate beyond a reasonable doubt that the error was 

harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

To determine whether an error is harmless, this Court must 

review the entire record, including a close examination of the 

permissible evidence on which the jury could have legitimately 

relied, and in addition an even closer examination of the excluded

2 Since Appellant’s testimony concerns alleged prior sexual 

activity of the victim with Appellant and not another individual, 

the two exceptions within section 794.022(2) do not apply to this 

case and need not be considered.

3 Even if the rape shield were to apply, the Florida Supreme 

Court has considered the reach of the rape shield statute when it 

hinders a defendant’s constitutional right to present a full and fair 

defense and determined 

a victim of a sexual assault should not be 

subjected to having her sexual history brought 

up in open court, but . . . where . . . application 

of this rule interferes with confrontation rights, 

or otherwise precludes a defendant from 

presenting a full and fair defense, the rule must 

give way to the defendant’s constitutional 

rights. 

Lewis v. State, 591 So. 2d 922, 925 (Fla. 1991).
7

evidence which might have possibly influenced the jury verdict.

See id.

Harmless error is not a device for the appellate 

court to substitute itself for the trier-of-fact by 

simply weighing the evidence. The focus is on the 

effect of the error on the trier-of-fact. The 

question is whether there is a reasonable 

possibility that the error affected the verdict. The 

burden to show the error was harmless must 

remain on the state. If the appellate court 

cannot say beyond a reasonable doubt that the 

error did not affect the verdict, then the error is 

by definition harmful.

Id. at 1139 (emphasis added).

Having reviewed the record before us, we conclude the State 

has met its burden and established beyond a reasonable doubt that 

the error was harmless. There exists no reasonable possibility the 

error affected the jury’s verdict.

Given Appellant’s defense that the victim consented to the 

intercourse in exchange for Percocet pills, the jury was called upon 

to resolve the conflicting accounts. To do so, the central question 

for the jury was the credibility of the victim versus the credibility 

of Appellant. In its closing argument, the State encouraged the 

jury to compare the victim’s testimony with her 911 call and to 

likewise compare Appellant’s testimony to his recorded interview 

with detectives.

The victim’s testimony before the jury was that she was raped 

in her bedroom by an unknown person who was not her boyfriend. 

Her testimony is substantially the same as reflected in her 911 

call, during which the victim was highly emotional and, at times, 

sobbing. The substance of her statements to the dispatcher,

together with the circumstances and her mental state during the 

call, were before the jury.

In sharp contrast, Appellant’s testimony differed wildly from 

his interview with detectives. Having chosen to speak to law 

enforcement officers and waive his Miranda rights, he never told 
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detectives that the victim consented. Indeed, he vacillated between 

claims that (i) the victim owed him money, (ii) he in fact knew her 

as Bigs, (iii) he did not even know the victim, (iv) he was not 

familiar with her residence, (v) nothing sexual happened, and (vi) 

the victim manually stimulated him (but not at her residence). He 

further told detectives, upon their questioning, (vii) “I guess it 

happened.” When asked if he was sorry it happened, Appellant 

said (viii) “Yes, ma’am, I am.” If given the opportunity to talk with 

the victim, Appellant indicated he would (ix) “Tell her so much 

man. I felt so bad. I’d give all this up. I’d give it all up.”

At trial Appellant’s defense was based entirely upon his own 

testimony—and, thus, would rise or fall depending upon the 

credibility the jury afforded his testimony. Appellant testified that 

he had known the victim for about a month and a half, had met 

her twice previously, including a “meeting” at her apartment 

(though she kept him away from her boyfriend),4 and then testified 

to his version of what occurred on the night in question: “hurried”

sexual intercourse after being invited into the apartment, and that 

he left the victim one and a half Percocet pills. Appellant also 

acknowledged before the jury that he was a four-time convicted 

felon, which is pertinent to the jury’s consideration of the 

credibility to be afforded his testimony,5 and that he had been 

drinking the day of the encounter with the victim.

While Appellant was erroneously prohibited from testifying

that this occurred on two prior occasions, Appellant’s brief proffer 

makes clear the excluded testimony would have been quite limited.

In his proffer, Appellant admitted he sold drugs. His intended

testimony as to the prior encounters would have included only that 

it occurred twice in the approximately month and a half he knew

the victim, once at a park and once at the victim’s apartment, and 

that the arrangement was the same as he alleged existed on the 

night in question—sex in exchange for Percocet pills. Appellant 

was unable to provide any information as to specifically when 

4 This testimony seems to imply to the jury the reason the 

victim would have kept Appellant away from her boyfriend while 

“meeting” Appellant in her apartment. 

5 See Fla. Std. Jury Instr. (Crim.) 3.9.
9

these alleged prior encounters occurred. There was no additional 

witness or other corroborating evidence of consent excluded by the 

trial court’s ruling.

Had the proffered testimony been admitted, the jury would 

have been faced with the same question: the credibility of the 

victim’s accusation of rape and that of Appellant’s claim of consent. 

And they would have been left with the same evidence to consider 

in making their determination: the substance of each’s testimony, 

the victim’s 911 call, and Appellant’s recorded interview with

detectives.

Simply stated, Appellant’s consent defense depended entirely 

on his own testimony. Given the substantial conflict between 

Appellant’s trial testimony and his interview with detectives, 

together with his four prior felony convictions, the record makes 

plain that Appellant’s credibility before the jury was severely

diminished. Considering the very limited nature of the proffered

testimony in this context, there is no reasonable possibility that 

the error affected the jury’s verdict. Therefore, the verdict should 

remain undisturbed.

III.

Accordingly, as the trial court’s error in excluding Appellant’s 

testimony of two alleged prior consensual encounters with the 

victim was harmless, the judgment and sentence is AFFIRMED.

It is so ordered.

KILBANE, J., concurs.

LAMBERT, J., concurs in part and dissents in part with opinion. 
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_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Case No. 5D22-1890

LT Case No. 2017-CF-051466-A

LAMBERT, J., concurring, in part, and dissenting, in part.

I concur with the majority’s analysis and opinion that the 

trial court erred when it applied Florida’s rape shield law to 

exclude testimony regarding the two alleged prior acts of 

consensual sexual activity between Appellant and the victim. 

The dispositive question in this appeal is whether this 

evidentiary error committed by the trial court was harmless. In 

other words, whether the State has met its burden to establish, 

beyond a reasonable doubt, that this error “did not contribute to 

the verdict or, alternatively stated, that there is no reasonable 

possibility that the error contributed to the conviction.” DiGuilio, 

491 So. 2d at 1135. 

I acknowledge the trial evidence of the victim’s 911 call and 

that during his interview with law enforcement, Appellant did not 

discuss any prior consensual sexual activity with the victim and 

initially denied being present at the victim’s residence. That said, 

evidence of two similar and recent consensual sexual encounters 

with the victim goes directly to and significantly strengthens 

Appellant’s sole defense that the incident that resulted in his 

conviction was similarly consensual. By limiting Appellant to 

testifying that he and the victim had previously “met” and thus,

according to Appellant, mischaracterizing the extent of their prior 

relationship, the jurors were without a material piece of 

information to consider during their deliberations. Instead, they 

were left with the victim testifying that this one-time occurrence

was not consensual, with Appellant testifying that it was. 

Moreover, the trial court’s ruling impacted Appellant’s

constitutional right of confrontation under the Sixth Amendment 

as it prevented his cross-examination of the State’s key witness

about their alleged prior consensual sexual activities.

Applying the language of DiGuilio, 491 So. 2d at 1139 (“The 

burden to show the error was harmless must remain on the state. 

If the appellate court cannot say beyond a reasonable doubt that 

the error did not affect the verdict, then the error is by definition 
12

harmful.”), and based upon my review of the record, I cannot 

conclude, beyond a reasonable doubt, that the State has met its 

burden to show that the trial court’s error in excluding testimony 

about prior, similar consensual activity between Appellant and the 

victim did not affect the verdict. Accordingly, I respectfully 

dissent.