### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

KEVIN BURKS JERSHUN
,

Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 12

- 4279

[ July 1, 2015 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Jeffrey Levenson , Judge; L.T. Case No. 11

- 1963CF10A

.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney Gene ral, West Palm Beach, for appellee.

M AY
, J.

The S tate charged the defendant with one count of having a weapon while engaged in the felony offense of failing to report as a sex ual offender,

and one count of failure of a sex ual offender to report in person to a driver’s

license office within forty

- eight hours after a change in address. Among the issues raised, t he defendant argues t he court erred in admitting

unauthenticated

, hearsay documents. We find merit in this argument and

reverse.

The facts leading up to the charges ha ve little to do with the ultimate

issue , but set the stage for th is appeal

. A l aw enforcement officer responded to a v erbal dispute between two roommates, one of wh om was the defe ndant

. After speaking to the offi cer outside, the defendant w ent
back inside the apartment

.

L e ss than a minute later, the roommate ran out side yelling that the
defendant had “maced” him. A few second s later, the defendant exited the apartment, holding a can of pepper spray. The officer ordered him to drop the can, and detained him.2

A Teletype revealed t he defendant was a convicted sex ual offender who failed to regis ter his current address. The officer arrested the defendant

, and secured the mace and a hand

- held t aser located in a case attached to
the defendant’s belt.

Before trial, the S tate filed a notice of intent to offer self

- authenticating

documents into evidence from the Florida Department of Law Enforcement (“FDLE”) , the Broward Sheriff’s Offic e , certified Department of Highway Safety and Motor Vehicles (“ DHSMV ”) records, and certified copies of

conviction. The S tate f iled a second notice of intent concerning a Florida business and/or out

- of

- state certification, FDLE records with an affidavit, certified copies of conviction

, and cert ified DHSMV records.

During its case

- in

- chief, the State called a local detective, who t estified

that h e checks with the F DLE website when he receives a failure to report

case to see if the person is properly regist ered. The State then a sked to introduce its Exhibit 2, which was the subject of the notice of intent to

offer self

- authenticating documents. The State relied upon section 92.605, Florida Statutes (201 1 ) , which p rovides for the admission of “out

- of

- state record[s] of regularly conducted business activity” as an exception to the hearsay rule. § 92.605(5)(a)

– (d), Fla. Stat. However, it also requires an
“out

- of

- state certification” of the record. Id

. Defense counsel objected and requested a side bar confe rence.

First, d efense counsel objected to lack of notice

, required by subsection (8) of section 92.605. 1 The State responded that two notices were sent

. D efense counsel received o nly one of them due to the substitution of

counsel just prior to trial. D efense counsel had, however, requested copies of anything that was sent prior to his representation of the defendant. The court overruled the notice objection.

Next, defense counsel lodged a hearsay objection. State’s E xhibit 2

con sisted of sixty pages. 2 The detective, while testifying, admitted that during his deposition he could not vouch for the FDLE records. The State responded that it had included an affidavit from the FDLE records

custodian.

1 “As soon after the arraignment as practicable, or [sixty] days prior to trial, a party intending to offer in evidence under this section an out

- of

- state record of regularly conducted business activity shall provide written notice of that

intention to each other party.” § 92.605(8), Fla. Stat.

2 The exhibit was subsequently divided into Exhibits 2 and 3.3

Defense counsel explained that for the State to prove its case, it had to

introduce c ertified copies of the defendant’s conviction and establish the defendant’s identify by matching his fingerprints. The c ourt suggested

that the defendant had conceded his conviction before the court , but

d efense counsel main tained there was no stipulation concerning the defendant’s conviction of a requisite sex ual offense. The State argued that the defendant’s willingness to register for six years was a concession, and the State was not required to prove the conviction unles s identity was at

issue. The court overruled the hearsay objection.

Next, d efense counsel objected to authentication of the copies of judgments and sentences

, as there was no certified disposition showing

the defendant was a sex ual offender. He reiterated his hearsay objection to the sixty

- page document . The court agreed that defense counsel raised a good point and allowed him to voir dire the detective on th e issue.

Upon questioning, the detective admitted he did not participate in the preparation of the documents, had no personal knowledge of their contents, and could not vouch for their accuracy. Defense counsel objected to the whole document as hearsay upon hearsay. He specifically objected to pages five through seven within the exhibit , the purported Army documents . The court overruled all of the objections on hearsay and authenticity.

When defense counsel addressed documents from the Federal Bureau of Investigation, he identified a document from the Army that contained

th e charges and convictions for “[k]nowingly receiv[ ing ] child pornography

t ransported in interstate commerce via the Internet, and knowingly

possess [ing] child pornography transported in interstate commerce via the Internet.” They contained a finding of gu ilt.

The documents were NOT

, however

, identified by title. And on cross

examination, the detective admitted he did not have any firsthand knowledge of the document s , did not inquire of the military what the documents were, did not get a certified disposi tion from the military, and did not get a certified charging document.

He received the packaged materials from the F DLE

. H e could not testify

as to the ir accuracy , their completeness, their authenticity, or their contents. He could not testify that the fingerprint cards matched the
defendant’s fingerprints. The detective did not know the statute number s of the federal charge s , and could not identify Article s 92 or 134 li sted on4

the Army documents. 3

After comple tion of the State’s case, the defend ant moved for a judgment of acquittal on the grounds he raises in this appeal. The cou rt
denied the motion. The d efendant then testified in his own defense, making several sta tements regarding his prior conviction and notice of the need to register as a sexual offender. At the close of the evidence, the

defendant renewed his motion for judgment of acquittal, which was also

denied.

The jury found the defendant guilty on both charges. 4 The court

sentenced the defendant to concurrent terms of twenty

- nine months in prison followed by thirty months of probation, with 6 68 days ’ credit for

time served. He now appeals his conviction and sentence

.

The defendant argues the trial court erred when it admitted

in admissible, unauthenticated hearsay document s , purporting to be a “general court martial order.” He argues that, without this evidence, the

S tate had no proof that he was convicted of an offense that would qualify

him as a sex ual offender , and required to register

. And, the court erred in denying his motion for judgment of acquittal. The State responds that the defendant personally corroborated the documents. Thus, they did not constitute hearsay ; and

, in any ev ent

, the error was harmless. We disagree with the State in both respects.

We review evidentiary decisions for an abuse of discretion. Armstrong

v. State

, 73 So. 3d 155, 171 (Fla. 2011). Here, the trial court abused its

discretion in admitting the unaut henticated “general court martial order”

into evidence

. Without th at document, the State failed to prove the charges; the court erred in denying the motion for judgment of acquittal.

The State charged the defendant with use of a weapon during a felony (failure to register) and failing to register as a sex ual offender. Section

943.0435 , Florida Statutes (2011), defines a “ sexual offender ” for purposes

3 Article 92 appears to be the failure to obey an order or regulation.

4 During deliberations, the jury asked for “clarification [on] whether failure to comply with a statute constitutes an ongoing offense until that person falls back into compliance or does the failure to comply constitute an offense regardless of later actions?” The court instructed the jury to rely on the instructions given to

them. The defendant has not raised this as an issue on appeal.5

of the registration statute. 5 Two provisions of the statute could apply in
this situation

.

The first one require s the State to prove the defendant was convicted of

an enumerated Florida crime or a similar offense within another jurisdiction

. Id. § 943.0435 (1) (a) 1. a

. To do so, t he State introduced

un authenticated

, hearsay document s included wit hin a sixty

- page package o btained from the F DLE. The documents purported to be from the Department of the Army, 82nd Airborne Division, at Fort Bragg, North Carolina, and included a summary of charges and findings

.

To determine if a foreign conviction is “similar” to a Florida offense, the court looks only to the identity of the elements of the two crimes, not to their underlying facts. Dautel v. State , 658 So. 2d 88, 90

– 91 (Fla. 1995).

The evidence here against the defendant was insufficient to establi sh that the foreign military offenses were similar to any enumerated Florida

offenses.

In Moore v. State , 992 So. 2d 862 (Fla. 5th DCA 2008), the defendant was charged with failing to register as a sexual offender “after having been

convicted of Criminal Sexual Conduct, on 5/19/1986” in Michigan. Id. at
863

– 64. “ T he State presented no evidence that his crime was similar to

an enumerated Florida crime

. . . .” Id

. at 864. The Fifth District held that

the s tate failed to prove the defendant was a sex ual offender under section 943.0435(1)(a)1.a. Id. As in Moore , the State failed to prove the defendant

5 A “ sexual offender ” subject to the registration requirements of s ection 943.0435

is defined in relevant part as a person who :

a.(I) H as been convicted of committing . . . [an enumerated offense]

in this state or similar offenses i n another jurisdiction

. . . ; and

(II) Has been released on or after October 1, 1997, from the sanction imposed for any conviction of [an enumerated offense] . . . ; [or]

b. Establishes or maintains a residence in this s tate and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator . . . , or by another sexual offender designation in another state or jurisdic tion and was, as a result of such designation, subjected to registration or community or public notification, or both . . . .

§ 943 .0435(1)(a)1.a.

– b., Fla. Stat. (2011).6

was convicted of a similar enumerated crime. 6

When the State must establish the existence of a prior conviction to prove an essential element of an offens e, merely introducing a judgment, which shows identity between the name on the prior judgment and the name of the defendant, is insufficient. Instead, the State must present affirmative evidence that the defendant and the person named on the prior judgmen t are the same person. This requirement is rooted in the requirement that the State prove the defendant guilty of every element of the offense beyond a reasonable

doubt.

Moncus v. State , 69 So. 3d 341, 343 (Fla. 4th DCA 2011) ( internal citations omitted)

.

Here, the State submitted a package of documents . Pages five through

seven reflected a violation of undefined “Article 134 ” based on the

defendant (1) “knowingly receiv [ ing] child pornography, transported in

interstate commerce via the [I] nternet,” and (2) “knowingly possess [ ing ] child pornography, transported in interstate commerce via the [I] nternet

. ”

The A rmy d ocument further re flected the defendant violated undefined
“Article 92 ” by “violat [ing] a lawful General o rder, to

- wit: paragraph 2

- 301a2(d) , DoD Directive 5500, 7

- R, Joint Ethics Regulation, dated 25 Mar 96, by wrongfully using government communication equipment to access pornography.”

The detective testified that he had no firsthand knowledge of the A rmy documents, did not know the provisio ns of the Articles violated, did not inquire as to what the documents were, did not get a certified disposition from the military, and did not get a certified charging document. He could not vouch for the accuracy of the documents, their completeness, the ir

6 In Moore , the court found the s tate sustained its burden of proof on the

alternat ive definition of sexual offender under section 943.0435(1)(a)1.b., Florida

Statutes (2011)

. Moore , 992 So. 2d at 864. There, the defendant admitted he was required to register as a sexual offender in the State of Michigan. Id. Here, however, the State also failed to prove the defendant was required to register in the Army. First, the Army documents did not indicate a requirement that the defendant register. Second, even though the defendant admitted he was required to register, he ste adfastly maintai ned he was require d to register for only five

years , and this testimony followed the court’s denial of the motion for judgment of acquittal . And third, no documentary evidence established that he was either designated as a sexual offender or ordered to re gister.7

authenticity, or their contents.

In short, t he State offered no proof that the Army charges, or their elements, were similar to any enumerated qualifying Florida offense. In fact, the Army appears to have prosecuted the defendant for violations of various Articles of War, including conduct unbecoming an officer and

misus e of government resources. These charges are not similar to any of
Florida’s enumerated sex ual offender charges

.

T he State did not introduce a certified copy of the conviction . Rather,

it introduced the FDLE records, which referenced a “general court martial
order” within a package of records it received from the Department of

Justice

. That order contained summarized findings made by the U.S. Army. B ut no one from the Army

, the F DLE, or the Department of Justice

authenticated the document. The State simply failed to prove the

defendant was a sex ual offender under section 943 .0435(1)(a)1. a

.

The other provision that may have applied to require the defendant to register as a s ex ual offender was section 943 .0435(1) (a)1.b., Florida

Statutes (2011) . That section defines a sex ual offender in relevant part as

a person residing in Florida, who was “ designated ” as a sexual predator or other sexual offender designation in another stat e or jurisdiction and subject to registration. § 943.0435(1)(a)1.b., Fla. Stat. To prove the

defendant was a sex ual offender under this provision, the State had to

prove two things: (1) that the defendant was “ designated ” as a sexual predator or other sexual offender designation in another state or jurisdiction ; and (2) that the defendant was “ subjected to registration ” as
a result of that “ designation

. ” Id. Indeed, the Florida Statutes r e quire the

trial court to make su ch a written finding and designation at the time of sentencing. See § 775.21(5) (a) , Fla

. Stat

. (201 1 ).

Even if the improperly admitted court martial documents were considered , there was no proof that the defendant had been “designated”

a s a sex ual offend er. The three pages of documents from the Army contain NO designation. Thus, the State failed to prove the defendant was “designated” a s a sex ual offender under section 943 .0435(1)(a)1.b.

The State maintains that the defendant’s affirmative act of regis tering

as a sex ual offender for six years proves he was a sex ual offender. However, defense counsel never stipulated to that fact at trial, and no fingerprints were compared to identify the defendant as the person who registered. And, even if his registration established he was “subjected to registration,” it did not prove he was “designated” as a sexual offender.

The State’s proof was simpl y lacking.8

The State also failed to establish that the documents were business

records. S ee Yisrael v. State , 993 So. 2d 952, 956 (Fla. 2008). Here, t he only authentication of the photograph ed document was a cover page , which stated:

I, Dina Davis, am employed as a Government Analyst I in the Florida Offender Registration and Tracking Servic es, Division of Criminal Justice Information Services, at the Florida Department of Law Enforcement (FDLE), Tallahassee, Florida. As a records custodian, I am responsible for maintaining

records for the Florida Offender Registration and Tracking Services, including

, among other duties, receiving and recording information provided by persons or agencies to this Department, either directly or indirectly, pursuant to the statutory duties imposed on such persons or agencies under

Florida law to which there was a duty to report. I am familiar with the filing system for this information.

After being duly sworn, I hereby certify that the attached document(s), consisting of 2 page(s) are true and accurate copies of records received and kept in the regular course of official business by this Department of electronic or hard copy FDLE Sexual Predator/Offender Registration forms electronically or manually submitted by persons or agencies to FDLE on September 4, 2002 and maintained within the Florida Department of Law Enforcement’s sexual offender database and/or physical hard copy file regarding KEVIN B JERSHUN, a black male with the date of birth of November 26, 1968.

(Emphasis added). Thus, the affiant attested to the certification o f only the first two pag es of the seven

- page group of documents

. The fifth through seventh pages were the Army documents.

The State also failed to establish that the records were public records

under seal

. See Rogers v. State , 944 So. 2d 513 , 515

– 16 (Fla. 4th DCA 2006). T he document s were not prepared by any agency or o ffice of the

State of Florida. The FDLE records did not establish a felony conviction by a court in another jurisdiction. The Army document s were unauthenticated, inadmissible hearsay . The trial court erred in admitting

them

.

A bsent the inadmissible Army documents , the State failed to prove th e9

defendant was a sex ual offender as defined by the Florida S tatutes , an

ess e ntial element of both c ounts . The trial court therefore erred in denying
the defendant’s m otion for judgment of acquittal. See Moore , 992 So. 2d at 864; Mason v. State , 853 So. 2d 544 , 546 (Fla. 1 st DCA 2003).

The State argues that if the court erred in admitting the unathenticated hearsay court martial document, then the error was harmless because the defendant’s testimony proved that : (1) he was convicted of another jurisdiction’s sexual offense similar to a Florida sexual offense enumerated

in section 943.0435(1)(a)1.a.(I); and (2) another jurisdiction designated

him as a sexual offender for which he was, as a result of such designation, subjected to registration, pursuant to section 943.0435(1)(a)1.b.

The State’s attempt to prove the error ha r mless suffers from a fatal flaw: it relies entirely on the defendant’s own testimony

– testimo ny given only

after the court denied the motion for judgment of acquittal. Needless to say, had the court granted the motion, the defendant would not have

testified.

T he State can not fill in the missing elements of its case by relying on

evidence introdu ced during the defense case

. State v. Pennington , 534 So.
2d 393 , 394

– 95 (Fla. 1988) (holding that a defendant does not waive his right to a judgment of acquittal by taking the stand and supplying

essential elements of the s tate’s case)

. Rule 3.380(b) of the Florida Rules

of Criminal Procedure specifically preserves a defendant’s motion for judgment of acquittal even after the defense puts on its case

.

We reve rs e the defendant’s conviction and remand the case for the defendant’s discharge

.

W ARNER and G ERBER , JJ

. , c oncur.

* * *

Not final until disposition of timely filed motion for rehearing.