        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:
      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 Williams 1 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).

                                          3
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 face-
to-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-year-
old 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 cross-
      examination, 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,


                                      5
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 live-
streaming video testimony was justified because it would be more


                                      7
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.




                                      8
         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.




                               10
