DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JAMES R. BUTLER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-544

[September 20, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-2009-CF-004111-

AXXX-MB.

Jacob M. Noble, Palm Beach Gardens, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. 

Napodano, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

Appellant, James R. Butler, appeals his judgment and sentence after a 

jury found him guilty of two counts of sexual battery on a person less than 

12 years of age. He raises five issues on appeal, four of which we affirm 

without discussion. We affirm as to the fifth issue as well, but write to 

explain why we disagree with his argument that the trial court erred in 

allowing the victim to testify via satellite. 

Background

Butler was charged with two counts of sexual battery on a person less 

than 12 years of age involving one victim, who was an adult at the time of 

trial. The crimes were reported to law enforcement in 1998, but Butler 

was not arrested for the crimes until 2009 because he absconded.

Prior to trial, the State filed a motion to permit the Victim to testify via 

satellite live-streaming video transmission, since she had relocated to 

Australia in 2007. In support of the motion, the State submitted an 

affidavit by the Victim, which stated:
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I, [the Victim], currently reside in Newcastle, Australia. I am 

the victim in the case of State v. James Butler, case number 

2009CF004111AXX. I have applied for a return visa so that I 

can travel to Palm Beach County, Florida for trial. If I am 

unable to obtain a return visa, I will not be allowed back to 

Australia. At this time, I have not been approved for a return 

visa.

Additionally, if I am required to travel to Palm Beach County, 

Florida for trial, it will jeopardize my employment, due to the 

amount of days I will be missing from work. Since I don’t have 

any extended family in Australia who could offer assistance, 

it will create a financial hardship for me.

Butler objected to the motion.

After a hearing, the trial court granted the State’s motion, finding: (1) 

there was an important state interest because the allegations involved 

molestation of a minor; (2) it was a delayed prosecution case; (3) the 

Victim’s testimony was crucial; (4) she could not be compelled to testify; 

(5) her financial hardship “in and of itself is [not] sufficient to . . . satisfy 

the requirements of satellite testimony”; (6) but the fact that her ability to 

return to Australia would be in question was “a sufficient circumstance to 

allow the satellite testimony, along with the other factors.”

During a break in the trial, the Victim was connected via the satellite 

transmission. Since Butler did not have the chance to depose the Victim 

pretrial, the trial court allowed Butler’s counsel the opportunity to speak 

to her off-record outside of the jury’s presence before she testified. After 

the conversation, Butler renewed his objection to the satellite testimony 

because the Victim stated during the off-record conversation that she had 

been approved for a return visa to Australia after her affidavit was 

submitted by the State and the motion for her testimony by satellite 

transmission was granted, but that this was months before the trial 

started. Butler argued that, since the lack of return visa was the main 

reason that the trial court granted the State’s motion, that basis was no 

longer a valid reason to deny his right of confrontation. Butler also moved 

for a continuance to allow the State to produce the Victim to testify in 

person. The trial court asked the State to speak to the Victim, to see if she 

would voluntarily travel to Florida to testify. The Victim stated she would 

not travel to Florida to testify because it would interfere with her job and 

would be emotionally difficult. 

The trial court overruled Butler’s objection. After again stating that the 
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Victim’s financial concerns were not considered as part of its ruling, the 

trial court reasoned that although the Victim cleared up the visa issue, 

she made it clear that she refused to come to Florida to testify, and the 

trial court did not know of any way it or the State could compel her to 

come and testify. Additionally, the trial court concluded that the same 

compelling state interests continued to be present. 

The Victim subsequently testified by satellite transmission about the 

inappropriate sexual contact by Butler, which began when she was around 

four or five years old. After her testimony, Butler renewed his objection, 

and the trial court further explained its reasoning for overruling his 

objection:

Economics is not the basis of my decision. It’s just her 

unequivocal refusal to appear voluntarily and the State’s 

inability to compel a resident of a foreign country to come here 

live. That’s the basis of my ruling.

Additionally, the State presented two Williams1 rule witnesses, who 

testified to inappropriate sexual contact by Butler when they were younger 

than ten. 

Other witnesses testified to establish the reason for Butler’s delayed 

arrest. An investigator from Oklahoma testified that when the Victim 

reported Butler in 1998, she began an investigation, and questioned Butler 

about the allegations during an interview. She obtained a warrant for 

Butler’s arrest three days after the interview, but when she made efforts 

to locate Butler in order to execute the warrant, over the span of “a couple 

months,” “[h]e was gone.” 

An owner of a magazine testified that he employed Butler as a freelance 

writer under the pen name of “Christopher Lott.” Because Butler was 

working for the magazine as an independent contractor, the owner needed 

him to fill out a 1099 tax form. The owner had to ask Butler three or four 

times for his real name and social security number to issue the 1099 form. 

When asked to describe Butler’s behavior when asked his real name and 

social security number, the owner said that Butler was “elusive,” “he 

appear[ed] nervous,” and that “[i]t took a few minutes to actually get the 

name out, you know[.]” Butler’s evasiveness prompted the owner to 

contact a law enforcement officer he knew and to pass on the information 

about the true identity of “Christopher Lott.” The owner’s contact with law 

1 Williams v. State, 110 So. 2d 654 (Fla. 1959). 
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enforcement led to Butler’s arrest in 2009, almost eleven years after the 

Oklahoma investigator had obtained a warrant for his arrest. 

The jury found Butler guilty as charged in the information. After the 

judgment and sentence were entered, Butler gave notice of appeal. 

Appellate Analysis

“In considering a trial court’s ruling on admissibility of evidence over 

an objection based on the Confrontation Clause, our standard of review is 

de novo.” McWatters v. State, 36 So. 3d 613, 637 (Fla. 2010) (quoting 

Milton v. State, 993 So. 2d 1047, 1048 (Fla. 1st DCA 2008)).

Butler contends that the trial court erred in allowing the Victim to 

testify by satellite live-streaming video transmission, in lieu of physically 

appearing in court to testify, and denied him his rights under the Sixth 

Amendment Confrontation Clause. “The United States Supreme Court has 

‘emphasized that the Confrontation Clause reflects a preference for faceto-face confrontation at trial[.]’” Perez v. State, 536 So. 2d 206, 208 (Fla. 

1988) (quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980)).

The main United States Supreme Court case addressing the 

Confrontation Clause in the context of video testimony is Maryland v. 

Craig, 497 U.S. 836 (1990). There, the defendant was charged with 

multiple counts, including sexual abuse offenses, all naming a six-yearold child as the victim. Id. at 840. Prior to trial, the state sought to allow 

the victim to testify via a one-way closed circuit television, pursuant to a 

Maryland statute which allowed such for a child witness who was the 

alleged victim of child abuse. Id. at 840-41. The trial court allowed the 

video testimony, and the defendant appealed the ruling asserting rights 

under the Confrontation Clause. Id. at 842-43.

The Supreme Court explained that “we have never insisted on an actual 

face-to-face encounter at trial in every instance in which testimony is 

admitted against a defendant”. Id. at 847. The Court observed:

[O]ur precedents establish that “the Confrontation Clause 

reflects a preference for face-to-face confrontation at trial,” a 

preference that “must occasionally give way to considerations 

of public policy and the necessities of the case.”

Id. at 849 (citations omitted). Applying these precedents, the Court held 

[T]hat where necessary to protect a child witness from trauma 

that would be caused by testifying in the physical presence of 
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the defendant, at least where such trauma would impair the 

child’s ability to communicate, the Confrontation Clause does 

not prohibit use of a procedure that, despite the absence of 

face-to-face confrontation, ensures the reliability of the 

evidence by subjecting it to rigorous adversarial testing and 

thereby preserves the essence of effective confrontation.

Id. at 857. 

Relying heavily on Craig, the Florida Supreme Court addressed the 

issue of satellite testimony in Harrell v. State, 709 So. 2d 1364 (Fla. 1998). 

There, a couple visiting Florida were victims of a robbery before flying home 

to Argentina. Id. at 1366-67. Before trial, the State sought to introduce 

the couple’s testimony via satellite, arguing that medium “was necessary 

because the victims were unable to be physically present in the courtroom, 

both because of the distance between the United States and Argentina and 

because of health problems that [one of the couple] was experiencing.” Id.

at 1367. The Third District upheld the procedure, but certified a question 

to our supreme court. Id. Our supreme court framed the issues on appeal 

to be “whether or not testimony via satellite in a criminal case violates the 

Confrontation Clause and, if so, whether the satellite procedure 

constitutes a permissible exception.” Id.

The Harrell court explained that “[a]lthough the Confrontation Clause 

guarantees a criminal defendant the right to physically confront accusers, 

this right is not absolute. There are certain exceptions where a defendant’s 

right to face-to-face confrontation will give way to ‘considerations of public 

policy and the necessities of the case.’” Id. at 1368 (quoting Craig, 497 

U.S. at 849-51). “However, such exceptions are only permitted when the 

reliability of the testimony is otherwise assured.” Id. The court stated that 

reliability can be found through three elements:

(1) that the witness will give the testimony under oath, 

impressing upon the witness the seriousness of the matter 

and protecting against a lie by the possibility of penalty of 

perjury, (2) that the witness will be subject to crossexamination, and (3) that the jury will have the chance to 

observe the demeanor of the witness, which aids the jury in 

assessing credibility.

Id. The court explained that the satellite testimony was not the equivalent 

of a face-to-face confrontation, and that “the satellite procedure can only 

be approved as an exception to the Confrontation Clause.” Id. at 1369. 

Therefore, “the procedure must (1) be justified, on a case-specific finding, 
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based on important state interests, public policies, or necessities of the 

case and (2) must satisfy the other three elements of confrontation—oath, 

cross-examination, and observation of the witness’s demeanor.” Id.

Regarding the specific facts of the case, the Harrell court stated that 

there were public policy reasons to justify the satellite testimony, where: 

(1) the witnesses lived beyond the subpoena power of the court; (2) one of 

the witnesses was in poor health and could not make the trip; and (3) the 

witnesses “were absolutely essential to this case” and “there is an

important state interest in resolving criminal matters in a manner which 

is both expeditious and just.” Id. at 1369-70. 

We construe Harrell to establish important factors to be considered by 

the trial court in determining whether an exception to a defendant’s rights 

under the Confrontation Clause will allow use of satellite live-streaming

video testimony by a witness. We discuss those factors with regards to the 

facts of this case. 

State Interests, Public Policies, or Necessities

This factor appears to be the primary focus of disagreement in this case. 

Both parties, as did the trial court, rely on United States v. Yates, 438 

F.3d 1307 (11th Cir. 2006), for their positions. In Yates, two defendants 

were charged with mail fraud, conspiracy to defraud the United States, 

conspiracy to commit money laundering, and prescription drug offenses 

arising out of their involvement in an internet pharmacy. Id. at 1309-10. 

Before trial, the government filed a motion to allow two witnesses from 

Australia to testify via two-way video. Id. at 1310. In support of the 

motion, the government argued that the witnesses were “essential” and the 

use of teleconference facilities for their testimony was necessary because 

they were beyond the government’s subpoena powers. Id. The government 

asserted both witnesses were willing to testify at trial via video 

teleconference, but they were not willing to travel to the United States. Id. 

The district court granted the government’s motion, finding that the 

witnesses were unwilling to travel to the United States, the government 

asserted the important public policies of crucial evidence and an interest 

in expeditiously resolving the case, and that the defendants’ confrontation 

rights were not violated, since the video was two-way. Id.

On appeal, the Eleventh Circuit found that the trial court erred in 

allowing the satellite testimony. Id. at 1316. The court construed Craig

to generally require an evidentiary hearing to determine whether the denial 

of physical, face-to-face confrontation at trial is necessary to further an 

important public policy and whether the reliability of the testimony is 
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otherwise assured. Id. at 1315. The Eleventh Circuit determined the 

district court erred by not taking evidence to make the required 

determinations, but instead relying on the Government’s assertions 

regarding the determinative factors. Id.

The court held that “under the circumstances of this case . . . the 

prosecutor’s need for the video conference testimony to make a case and 

to expeditiously resolve it are not the type of public policies that are 

important enough to outweigh the Defendant’s rights to confront their 

accusers face-to-face.” Id. at 1316. Additionally:

The district court made no case-specific findings of fact that 

would support a conclusion that this case is different from 

any other criminal prosecution in which the Government 

would find it convenient to present testimony by two-way 

video conference. All criminal prosecutions include at least 

some evidence crucial to the Government’s case, and there is 

no doubt that many criminal cases could be more 

expeditiously resolved were it unnecessary for witnesses to 

appear at trial. If we were to approve introduction of 

testimony in this manner, on this record, every prosecutor 

wishing to present testimony from a witness overseas would 

argue that providing crucial prosecution evidence and 

resolving the case expeditiously are important public policies 

that support the admission of testimony by two-way video 

conference.

Id. “Craig requires that furtherance of the important public policy make[s]

it necessary to deny the defendant his right to a physical face-to-face 

confrontation.” Id.

Butler makes no argument that the trial court erred when it initially 

allowed the satellite testimony, since the Victim did not have the proper 

government authorization at the time to travel to Florida and return to 

Australia. Instead, Butler argues that the trial court should not have 

allowed the satellite testimony after the Victim stated that she obtained 

the proper visa authorization a few months before trial. Butler argues that 

there was no important interest or public policy in this case to supplant 

his right of confrontation, and similar to Yates, the Victim simply refused 

to testify.

We agree with the State that the trial court properly applied Yates and 

Craig. The trial court did not simply conclude that the use of satellite livestreaming video testimony was justified because it would be more 
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convenient or would expedite the case or financially assist the victim. 

Instead, the trial court found that the important policy considerations were 

that the State has an interest in prosecuting alleged child sex offenders 

and that the Victim was beyond the subpoena power of the court and 

refused to travel to testify. 

In Harrell, the factors that supported our supreme court’s 

determination that video testimony was appropriate were: (1) the witnesses 

lived beyond the subpoena power of the court; (2) one of the witnesses was 

in poor health and could not make the trip; and (3) the witnesses “were 

absolutely essential to this case” and “there is an important state interest 

in resolving criminal matters in a manner which is both expeditious and 

just.” Harrell, 709 So. 2d at 1369-70. Here, the factors that support the 

use of satellite live-streaming video testimony were: (1) the witness lived 

beyond the subpoena power of the court; (2) there is a state interest in 

prosecuting child sex offenders; and (3) the Victim was essential to the 

case. Just as health was considered as a sufficient factor in Harrell, courts 

have also held that the type of case is a relevant factor. See, e.g., State ex 

rel. Montgomery v. Kemp, 371 P.3d 660, 663 (Ariz. Ct. App. 2016) (finding 

a similar “accommodation is necessary to further two important public 

policies: protecting the rights of a vulnerable alleged sexual assault victim 

who has been ruled outside Arizona’s subpoena power and preserving

society’s interest in prosecuting accused sexual offenders”). 

We agree that the prosecution of a child sexual offender is the type of 

limited cases which may justify an exception to a defendant’s rights under 

the Confrontation Clause. In our view, the state interest in prosecuting 

child sex offenders is sufficiently comparable to the factor that a witness 

is in poor health and unable to travel to satisfy Harrell. Our holding on 

this point is limited to prosecutions of child sexual offenders in which the 

victim is beyond the reach of a subpoena and unwilling to travel to testify. 

Thus, we conclude the state interests, public policies, or necessities 

requirement of Harrell was met in this case.

Adequate Oath Requirement

Butler also argues that the adequate oath requirement was not met 

because the Victim was not subject to prosecution in Australia for perjury. 

The Victim was put under oath by a public notary in Australia. However, 

“an oath is only effective if the witness can be subjected to prosecution for 

perjury upon making a knowingly false statement.” Harrell, 709 So. 2d at 

1371. 
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To ensure that the possibility of perjury is not an empty threat 

for those witnesses that testify via satellite from outside the 

United States, it must be established that there exists an 

extradition treaty between the witness’s country and the 

United States, and that such a treaty permits extradition for 

the crime of perjury. 

Id.

Butler acknowledges there is a treaty between the United States and 

Australia addressing extradition for the crime of perjury. It “covers an 

offence ‘punishable under the laws of both Contracting Parties by 

deprivation of liberty of more than one year, or by a more severe penalty.’” 

Matter of Extradition of Hamilton-Byrne, 831 F. Supp. 287, 289 (S.D.N.Y. 

1993) (quoting S. Treaty Doc. 102–23, 102d Cong, 2d Sess (1992)). In 

Florida, “the offense of perjury in an official proceeding is a third-degree 

felony and is punishable by up to five years in prison.” Harrell, 709 So. 

2d at 1371; see also § 837.02(1), Fla. Stat. (2017) (“Except as provided in 

subsection (2), whoever makes a false statement, which he or she does not 

believe to be true, under oath in an official proceeding in regard to any 

material matter, commits a felony of the third degree[.]”); § 775.082(3)(e), 

Fla. Stat. (2017) (“For a felony of the third degree, [a person who has been 

convicted may be punished] by a term of imprisonment not exceeding 5 

years.”). Therefore, perjury is a qualifying offense for the extradition treaty 

and Butler’s argument has no merit.

Cross-Examination and Observation Requirement

We determine the cross-examination and observation requirements 

were met in this case as well. Butler was able to cross-examine the Victim 

during the trial, and there is no suggestion that the jury could not see the 

Victim, and vice versa.

Conclusion

Having concluded that the trial court properly analyzed the policy 

factors, elements of reliability, and principles of law in allowing an 

exception to Butler’s rights under the Confrontation Clause and permitting 

testimony by satellite transmission, we affirm the judgments and 

sentences imposed against Butler by the trial court. 

Affirmed.

GROSS and KLINGENSMITH, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.