       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         MARK J. DEDOMINICIS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D18-596

                             [March 20, 2019]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Larry Schack, Judge; L.T. Case No.
312016CF001001A.

   Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public
Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, C.J.

    The defendant appeals from his conviction for lewd or lascivious
exhibition in the presence of a victim who is less than sixteen years of age,
in violation of section 800.04(7)(b), Florida Statutes (2016). The defendant
argues the trial court erred in denying his motion for judgment of acquittal
for two reasons: (1) the state failed to present competent substantial
evidence of lewd and lascivious exhibition; and (2) the state failed to
present competent substantial evidence that the defendant was eighteen
years of age or older when the offense occurred.

   We affirm on the first argument without discussion. We also affirm on
the second argument, and write to explain our reasoning.

   Our opinion is presented in four parts:
   1. The trial evidence;
   2. The defendant’s motion for judgment of acquittal;
   3. Closing arguments; and
   4. Our review.
                          1. The Trial Evidence

   The ten-year-old child victim was with her mother, shopping at a large
retail store. The defendant, standing ten to twelve feet away, exposed his
penis to the child. The child told her mother. The mother yelled at the
defendant. The defendant began walking away, but briefly turned his face
back towards the mother. The mother was able to see the defendant’s face.
The mother lost sight of the defendant, but she assumed he was going
toward the exit. The mother’s assumption was correct, as she saw the
defendant exiting the store. After the defendant got in his car and began
driving away, the mother took down the defendant’s license plate number.

   The defendant was arrested and brought to trial. In the jury’s presence,
the state and the mother briefly discussed the defendant’s age. The state
asked, “Did you form an opinion as to whether [the defendant] was over
18 years of age?” The mother responded that the defendant “was an older
man.” The state followed up, “And that he was a little over 18 or much
over 18?” The mother responded, “Much over 18.”

   The state introduced into evidence the photo lineup from which the
mother had identified the defendant during the investigation. The state
then had the mother identify the defendant in the store’s video surveillance
already admitted into evidence. The state lastly had the mother identify
the defendant sitting in the courtroom.

        2. The Defendant’s Motion for Judgment of Acquittal

   After the state rested, the defendant moved for a judgment of acquittal.
One of the grounds raised was insufficient evidence that the defendant
was eighteen years of age or older when the offense occurred. See
§ 800.04(7)(b), Florida Statutes (2016) (“An offender 18 years of age or older
who commits a lewd or lascivious exhibition commits a felony of the second
degree . . . .”). The defendant argued: “[The defendant’s age] could have
easily been proved by the submission of a driver’s license. . . . We only
have evidence that the person appeared to be over the age of 18.”

   The state, in response to the defendant’s motion, argued:

      With regard to [the element that] the defendant was 18 years
      of age or older at the time of the offense, I’m citing State v.
      Surin . . . 920 So. 2d 1162 [(Fla. 3d DCA 2006)] . . . which
      holds that age, like any other issue in a case, can be proven
      by circumstantial evidence.      In [the instant] case, the

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      defendant, who was actually born in 1953, is clearly seen on
      the video. The jurors can look at that video and . . . through
      the circumstantial evidence of his appearance may conclude
      reasonably that he was over the age of 18.

      In addition, lay opinions are admissible in Florida, and the lay
      opinion of the victim’s mother was that she had an
      opportunity to view the defendant on that date and in her
      opinion she believed that he was well over the age of 18.

   The trial court, reflecting on the parties’ arguments, commented that
Surin had been distinguished by our opinion in White v. State, 183 So. 3d
1168 (Fla. 4th DCA 2016). The following discussion then occurred:

      STATE: I do recall that the issue [in White] was whether or
      not the State could prove by circumstantial evidence whether
      the defendant was in fact over 18 years of age. And the Fourth
      DCA noted that the defendant was 20 years of age at the time
      of the offense. I think the State had relied upon the jury’s
      ability to view the defendant during the trial and argued that
      they could make that decision as to whether or not he was
      over 20 years of age. The [Fourth DCA] found that because it
      was such a close call because [the defendant] was 20 and [the
      jury] was trying to decide [whether the defendant was] 18 that
      the evidence did not disprove the defendant’s . . . reasonable
      hypothesis of innocence that the defendant was under 18 and
      [the Fourth DCA] reversed the case. I would distinguish
      [White] by saying in this case, the defendant is not 20 years
      old. He’s very far beyond that. I believe he’s in his 60’s.

      COURT: Any evidence of that?

      STATE: No, but there wasn’t evidence in [White] either. The
      evidence I have for the record is, I would ask the Court to take
      judicial notice of the contents of the court file, which includes–

      COURT: Well, wait, before I do that . . . I can only base a
      ruling on this motion based on what this jury heard, not
      what’s in the court file.

      STATE: Okay . . . I make that point because that’s what the
      Fourth DCA did [in White] . . .



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     The Fourth DCA looked at the contents of the court file to
     determine that he was in fact 20 [years old] . . .

     And then . . . they reversed the case because the jury looking
     at the 20-year-old did not disprove [the defendant’s]
     reasonable hypothesis of innocence.

     ...

     DEFENSE: Your Honor . . . I think [you] already picked it up,
     but [the State] had indicated that the defendant was born in
     1953 and I don’t think there was any evidence in the record
     as to any of that . . .

     COURT: Well, to the extent that I’m able to note what the
     court record reflects, the court record reflects a date of birth
     of November 27, 1953.

     ...

     [T]here’s a difference between White and what we have here
     and Surin. Here we have . . . a situation where the State is
     asking to look at evidence in the court file to substantiate the
     burden of proof. In the White case, the court looked to it to
     show why there was an issue in lack of proof. Now, if the only
     testimony here was the opinion that he was over the age of 18,
     I’d be inclined to agree with [the defense]. I don’t know [if that
     testimony] would rise to the level of proof beyond a reasonable
     doubt ultimately . . . but there is other testimony volunteered
     in response to that question in which [the victim’s mother]
     said he was an older man, much over 18. So I think we have
     more than simply an opinion that he was over 18 . . . So the
     motion at this juncture is denied. . . .

                         3. Closing Arguments

   During the state’s closing argument, the prosecutor’s only comment on
the state’s burden to prove that the defendant was eighteen years of age
or older when the offense occurred was: “You can look at him. You can
see him on the video. Use your common sense, good judgment; he’s not
[under eighteen years old].”




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   During the defendant’s closing argument, defense counsel did not
comment on the state’s burden to prove that the defendant was eighteen
years of age or older when the offense occurred.

   The jury convicted the defendant as charged.

                               4. Our Review

   This appeal followed. The defendant argues the trial court erred in
denying his motion for judgment of acquittal because the state failed to
present competent substantial evidence that he was eighteen years of age
or older when the offense occurred. Relying on our opinion in White v.
State, 183 So. 3d 1168 (Fla. 4th DCA 2016), the defendant argues that the
jury’s ability to observe him during trial, combined with the mother’s
testimony that he appeared to be much older than eighteen years of age,
was insufficient evidence to prove his age.

   The state responds that the trial court properly denied the defendant’s
motion for judgment of acquittal. According to the state, the jury’s ability
to observe the defendant during trial, combined with the mother’s
testimony that he appeared to be much older than eighteen years of age,
was sufficient evidence to survive a motion for judgment of acquittal.

   The state also argues that White is distinguishable for two reasons.
First, the state argues, in White, no additional circumstantial evidence
existed regarding the defendant’s age, whereas in this case, the mother
testified that the defendant appeared to be much older than eighteen.
Second, the state argues, in White, the defendant was only twenty years
old when the offense occurred, whereas in this case, the defendant was in
his sixties when the offense occurred.

   Our supreme court, in Pagan v. State, 830 So. 2d 792 (Fla. 2002), set
forth our standard of review:

      In reviewing a motion for judgment of acquittal, a de novo
      standard of review applies. Generally, an appellate court will
      not reverse a conviction which is supported by competent,
      substantial evidence. If, after viewing the evidence in the light
      most favorable to the State, a rational trier of fact could find
      the existence of the elements of the crime beyond a reasonable
      doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (internal citations omitted).


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   Here, we agree with the state that competent substantial evidence
supports the required finding that the defendant was eighteen years of age
or older when the offense occurred. Viewed in the light most favorable to
the state, the mother’s testimony that the defendant “was an older man”
and “[m]uch over 18,” plus the jury’s opportunity to observe the defendant
not just in court, but also in the photo lineup and video surveillance which
the mother identified, was sufficient to allow the jury to find beyond a
reasonable doubt that the defendant was eighteen years of age or older
when the offense occurred.

   We also agree with the state that White is distinguishable. In White,
the defendant was convicted of two counts of sexual battery of a minor.
183 So. 3d at 1169. That crime, like the crime here, required the state to
prove that the defendant was “18 years of age or older.” § 794.011(2)(a),
Fla. Stat. (2013).

   We reversed the defendant’s convictions and remanded for entry of
judgments of conviction for a lesser included offense which did not require
proof of the defendant’s age. Id. at 1169. We reasoned that the state failed
to present any evidence of the defendant’s age other than the jury’s ability
to observe him during the trial. Id. at 1170.

   Here, in contrast, the jury had more to consider beyond its own ability
to observe the defendant during the trial. The jury also was able to
consider the mother’s testimony that the defendant “was an older man”
and “[m]uch over 18,” as well as the photo lineup and video surveillance
showing the defendant’s appearance when the offense occurred.

    We recognize that in White, we noted our observation from the probable
cause affidavit, which was not introduced at trial, that the defendant was
twenty years old when the offense occurred. Id. However, we noted that
observation merely to point out the possibility that the jury’s ability to
determine the defendant’s age beyond a reasonable doubt may have been
challenging, given the possible lack of disparity in appearance between a
twenty-year-old person (who would be eligible for conviction of the charged
crime) and a person under eighteen years old (who would not be eligible
for conviction of the charged crime). Id. at 1171.

    We contrasted that possible lack of disparity in age appearance with
the greater disparity existing in State v. Surin, 920 So. 2d 1162 (Fla. 3d
DCA 2006). There, the defendant was twenty-nine years old when the
offense occurred, id. at 1165 n.1, and the state had to prove he was
eighteen years of age or older when the offense occurred, id. at 1164. That
disparity, along with more extensive evidence that the defendant was

                                     6
eighteen years of age or older when the offense occurred, led our sister
court to conclude sufficient evidence existed for a jury to find that the
defendant was eighteen years of age or older when the offense occurred.
Id. at 1165.

   Here, the disparity in age appearance, which a reasonable juror likely
would have observed between this defendant in his sixties and a person
under eighteen, is much, much greater – by decades – than the disparity
which the jury would have observed in Surin. That disparity, along with
the mother’s testimony that the defendant “was an older man” and “[m]uch
over 18,” as well as the photo lineup and video surveillance showing the
defendant’s appearance when the offense occurred, leads us to conclude
sufficient evidence existed for the instant jury to have found that the
defendant was eighteen years of age or older when the offense occurred.

   Affirmed.

TAYLOR and KUNTZ, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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