DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KEVIN BURKS JERSHUN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D12-4279

[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 General, West Palm Beach, for appellee.

MAY, J.

The State charged the defendant with one count of having a weapon 

while engaged in the felony offense of failing to report as a sexual offender, 

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

license office within forty-eight hours after a change in address. Among 

the issues raised, the defendant argues the court erred in admitting 

unauthenticated, hearsay documents. We find merit in this argument and 

reverse.

The facts leading up to the charges have little to do with the ultimate 

issue, but set the stage for this appeal. A law enforcement officer 

responded to a verbal dispute between two roommates, one of whom was 

the defendant. After speaking to the officer outside, the defendant went 

back inside the apartment.

Less than a minute later, the roommate ran outside yelling that the 

defendant had “maced” him. A few seconds 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 the defendant was a convicted sexual offender who

failed to register his current address. The officer arrested the defendant, 

and secured the mace and a hand-held taser located in a case attached to 

the defendant’s belt.

Before trial, the State filed a notice of intent to offer self-authenticating 

documents into evidence from the Florida Department of Law Enforcement 

(“FDLE”), the Broward Sheriff’s Office, certified Department of Highway 

Safety and Motor Vehicles (“DHSMV”) records, and certified copies of 

conviction. The State filed 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 certified DHSMV records.

During its case-in-chief, the State called a local detective, who testified 

that he checks with the FDLE website when he receives a failure to report 

case to see if the person is properly registered. The State then asked 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 (2011), which provides 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 conference.

First, defense counsel objected to lack of notice, required by subsection 

(8) of section 92.605.1 The State responded that two notices were sent. 

Defense counsel received only one of them due to the substitution of

counsel just prior to trial. Defense 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 Exhibit 2 

consisted 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 certified copies of the defendant’s conviction and establish the 

defendant’s identify by matching his fingerprints. The court suggested 

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

defense counsel maintained there was no stipulation concerning the 

defendant’s conviction of a requisite sexual 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 unless identity was at 

issue. The court overruled the hearsay objection.

Next, defense counsel objected to authentication of the copies of 

judgments and sentences, as there was no certified disposition showing 

the defendant was a sexual 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 the 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 

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

transported in interstate commerce via the Internet, and knowingly 

possess[ing] child pornography transported in interstate commerce via the 

Internet.” They contained a finding of guilt.

The documents were NOT, however, identified by title. And on crossexamination, the detective admitted he did not have any firsthand 

knowledge of the documents, did not inquire of the military what the 

documents were, did not get a certified disposition from the military, and 

did not get a certified charging document.

He received the packaged materials from the FDLE. He could not testify 

as to their 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 numbers

of the federal charges, and could not identify Articles 92 or 134 listed on 
4

the Army documents.3

After completion of the State’s case, the defendant moved for a 

judgment of acquittal on the grounds he raises in this appeal. The court 

denied the motion. The defendant then testified in his own defense, 

making several statements 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 668 days’ credit for 

time served. He now appeals his conviction and sentence.

The defendant argues the trial court erred when it admitted 

inadmissible, unauthenticated hearsay documents, purporting to be a 

“general court martial order.” He argues that, without this evidence, the 

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

him as a sexual 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 event, 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 unauthenticated “general court martial order” 

into evidence. Without that 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 sexual 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 requires 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, the State introduced 

unauthenticated, hearsay documents included within a sixty-page 

package obtained from the FDLE. 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 establish 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. “The State presented no evidence that his crime was similar to 

an enumerated Florida crime . . . .” Id. at 864. The Fifth District held that 

the state failed to prove the defendant was a sexual 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 section 943.0435 

is defined in relevant part as a person who:

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

in this state or similar offenses in 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 state 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 jurisdiction 

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 offense, 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 judgment 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 Army document further reflected the defendant violated undefined 

“Article 92” by “violat[ing] a lawful General order, 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 Army 

documents, did not know the provisions 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, their 

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

alternative 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 steadfastly maintained he was required 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 register.
7

authenticity, or their contents.

In short, the 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 

misuse of government resources. These charges are not similar to any of 

Florida’s enumerated sexual offender charges.

The 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. But no one from the Army, the FDLE, or the Department of Justice

authenticated the document. The State simply failed to prove the 

defendant was a sexual offender under section 943.0435(1)(a)1.a.

The other provision that may have applied to require the defendant to 

register as a sexual offender was section 943.0435(1)(a)1.b., Florida 

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

a person residing in Florida, who was “designated” as a sexual predator or 

other sexual offender designation in another state or jurisdiction and 

subject to registration. § 943.0435(1)(a)1.b., Fla. Stat. To prove the 

defendant was a sexual 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 require the 

trial court to make such a written finding and designation at the time of 

sentencing. See § 775.21(5)(a), Fla. Stat. (2011).

Even if the improperly admitted court martial documents were 

considered, there was no proof that the defendant had been “designated” 

as a sexual offender. The three pages of documents from the Army contain 

NO designation. Thus, the State failed to prove the defendant was 

“designated” as a sexual offender under section 943.0435(1)(a)1.b.

The State maintains that the defendant’s affirmative act of registering

as a sexual offender for six years proves he was a sexual 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 simply lacking.
8

The State also failed to establish that the documents were business 

records. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008). Here, the 

only authentication of the photographed document was a cover page,

which stated:

I, Dina Davis, am employed as a Government Analyst I in the 

Florida Offender Registration and Tracking Services, 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 of only 

the first two pages 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). The documents were not prepared by any agency or office of the 

State of Florida. The FDLE records did not establish a felony conviction 

by a court in another jurisdiction. The Army documents were

unauthenticated, inadmissible hearsay. The trial court erred in admitting 

them.

Absent the inadmissible Army documents, the State failed to prove the 
9

defendant was a sexual offender as defined by the Florida Statutes, an 

essential element of both counts. The trial court therefore erred in denying 

the defendant’s motion for judgment of acquittal. See Moore, 992 So. 2d 

at 864; Mason v. State, 853 So. 2d 544, 546 (Fla. 1st 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 harmless suffers from a fatal flaw: 

it relies entirely on the defendant’s own testimony – testimony 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.

The State cannot fill in the missing elements of its case by relying on 

evidence introduced 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 state’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 reverse the defendant’s conviction and remand the case for the 

defendant’s discharge.

WARNER and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.