Opinion
No. 1D19-3724
11-03-2021
Andrew M. SCHLUCK, Appellant, v. STATE of Florida, Appellee.
Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville, and Melissa Joy Ford, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee.
Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville, and Melissa Joy Ford, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee.
Winokur, J.
Andrew M. Schluck appeals his judgment and sentence for burglary and sexual battery. He contends that the trial court erred in four respects: (1) it improperly admitted a recording of the victim's statement that she thought she had been raped in her dorm room the previous night; (2) it did not allow Schluck to represent himself or conduct a Faretta hearing after he requested to do so; (3) it imposed conditions of sexual-offender probation that were not related to the crime; and (4) it did not hold a competency hearing or enter an order of competency after there were reasonable grounds to believe that Schluck may not have been competent to proceed. We agree that the court improperly admitted a recording of the victim and reverse for new trial.
Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
I
Schluck was charged with burglary of an occupied dwelling with assault or battery and sexual battery upon a victim physically helpless to resist. The record contains the following evidence: The nineteen-year-old victim and her friend had met Schluck as they walked back to the victim's dorm after a night of drinking. Surveillance video showed the three entering the building at 3:28 a.m. The women went into the victim's dorm room alone, but the victim's friend saw Schluck standing in the hallway when she left a few minutes later. Surveillance video showed Schluck leaving the building at 7:14 the next morning. At 7:44 a.m. and after speaking to her roommate, who advised her to gather her clothing and call the police, the victim called the university police administrative line and reported, "I think that I was ... raped last night." She stated that it had happened in her dorm. The recording was played for the jury over Schluck's hearsay objection, and the victim did not testify. The jury found Schluck guilty of burglary of an occupied dwelling with battery and of sexual battery, a lesser-included offense of sexual battery upon a victim physically helpless to resist.
This call was a call for service to police rather than a 911 call.
The dissent recounts in detail virtually the entire case against Schluck. The issue we are considering here is not whether the State presented sufficient evidence to support Schluck's convictions, but whether a single piece of evidence, a recording of the police call, was hearsay, and if so, was properly admitted under a hearsay exception. Our analysis is limited to that question.
Although we will not address most of the facts that we do not find relevant to the issue, to avoid any confusion, we will briefly discuss the comments on the victim's impairment. Surveillance video showed the victim entering the dormitory building on her own, and she did not appear to be stumbling. A crime laboratory analyst extrapolated her blood-alcohol level for around 3:00 a.m. based on a measurement from the next day and estimated that it would have been between 0.14 and 0.26 grams per deciliter. Though he acknowledged that the victim "could have been" at the upper end of this range, he testified that the "vast majority of the population" would fall in the middle, around 0.16 to 0.18. He explained that alcohol influences people differently and two people with the same level of blood alcohol will not necessarily have the same level of physical impairment. We also note that no drugs were found in the victim's blood. But most importantly, the victim's impairment at 3:00 a.m. does not affect the admissibility of her police call at 7:44 a.m. A victim's intoxication at the time of the sexual battery—a time that has not been established in this case—is relevant only to whether she is capable of consent, and that issue is not before us. In making these observations, we reject the dissent's contention that we have "downplayed" the record facts.
We take this opportunity to emphasize that our decision is based upon a purely legal question and not our own evaluation of the defendant's guilt or our sympathy for the victim. Where a jury's decision was affected by an incorrect application of law, we must reverse a conviction. This is a necessary feature of our justice system. Laws are designed to ensure fair trials, and allowing convictions based on unfair trials to stand harms this system.
Schluck contends that the trial court erred in admitting the victim's statements to university police because they were hearsay and did not qualify as excited utterances. We review for abuse of discretion. See Alston v. State , 723 So. 2d 148, 156 (Fla. 1998).
Schluck also argues that the statements were admitted in violation of the Confrontation Clause. We do not address this argument because Schluck never properly presented it below. We agree with the dissent that Schluck's hearsay objections did not preserve a Confrontation Clause claim. Nor do we address whether a Confrontation Clause violation constituted fundamental error, because we find that the evidence was inadmissible hearsay.
II
A
We first address whether Schluck preserved for appeal his argument that the recording did not constitute an excited utterance and therefore did not fall under the hearsay exception set forth in section 90.803(2), Florida Statutes. Prior to trial, Schluck's counsel objected to the State's planned introduction of the recording, in part on the ground that it constituted hearsay. The prosecutor indicated that she intended to authenticate the recording with testimony from an "IT person" with the university police, and testimony from a friend of the victim who could authenticate the victim's voice, and added that the State would also establish that the victim "was upset at the time of the call." The court overruled Schluck's objection without further comment. Before the recording was admitted at trial, Schluck's counsel "renew[ed the] objection on the grounds of hearsay." Without asking the State for a response, the court overruled the objection without further comment. After trial, Schluck moved for new trial, in part on the ground that the admission of the recording violated his right to confrontation. The State disagreed and for the first time explicitly claimed that an exception to the hearsay rule applied, arguing that it constituted an excited utterance. Schluck replied, denying that the hearsay statements constituted an excited utterance. After hearing, the court denied the motion for new trial.
Under these circumstances, the issue is preserved for appeal even though Schluck never argued that the statement did not constitute an excited utterance until replying to the State's claim in its response to the motion for new trial that the exception applied. "A ‘hearsay’ objection need not specify the hearsay exception the objecting party will address on appeal." State v. Crofoot , 97 So. 3d 866, 868 (Fla. 1st DCA 2012) (holding that the appellant's "hearsay objection preserved its argument on appeal that the ‘statement against interest’ exception does not apply to the statements at issue"); see also Neeley v. State , 883 So. 2d 861, 864 (Fla. 1st DCA 2004) (holding that a general hearsay objection preserved the issue of whether a statement qualified as a hearsay exception because "[w]hen a party makes a hearsay objection, a trial court must consider all possible hearsay violations, exceptions, and exclusions"). When a party objects to admission of evidence because it is hearsay, the objection is generally sufficient to preserve the issue, even if the proponent of the testimony claims on appeal (or in response to a motion for new trial) that a hearsay exception applies. In this case, we find that Schluck properly alerted the trial court to his claim that the statement constituted hearsay and was not required also to argue that an exception did not apply in order to preserve this argument for review.
We do not dispute that preservation may have required more if the State had clearly indicated at trial that it was relying on the excited-utterance exception to admit the recording. Instead, Schluck argued that the evidence was hearsay and the court denied the objection. In this situation, the general rule applies.
B
The dissent contends that the recording was actually admitted under the "public records and reports" exception to hearsay contained in section 90.803(8), Florida Statutes, rather than the excited-utterance exception. Because Schluck did not address this exception, the dissent argues that Schluck has failed to present an argument supporting reversal. We find that the State never sought admission of the statements under the public-records exception, and as such, Schluck's failure to address it is immaterial.
First, we disagree that the public-records exception was ever raised in the pretrial hearing. During that hearing, the prosecutor indicated that she would introduce the testimony of the person who operates the system that records calls made to the university police. Schluck's counsel responded that he was unaware that the State intended to introduce a call from the victim to police, and objected to its admission on the ground that it constituted a discovery violation and that it was hearsay. The State indicated that it had given a copy of the recording to Schluck when he was pro se. The following exchange then occurred:
THE COURT: Okay. Well, you have somebody that's going to authenticate it as a public record?
[PROSECUTOR]: Yeah. The IT person will authenticate it as the audio recording from the system. And then I will have a friend who will authenticate her voice.
THE COURT: Okay.
[PROSECUTOR]: As well as the fact that she was upset at the time of the call.
THE COURT: Okay. Overruled.
The entire exchange shows that the prosecutor and the court were primarily discussing authentication of the recording under section 90.901, Florida Statutes, not attempting to support admissibility of hearsay by resort to the "public records and reports" exception to the hearsay rule. The State indicated that it planned to introduce testimony of a person with knowledge of the university police call system, as well as that of a person who could authenticate the victim's voice. See , e.g. , D.D.B. v. State , 109 So. 3d 1184, 1185 (Fla. 2d DCA 2013) (holding that a 911 call recording was not properly authenticated and noting that "identification of D.D.B.'s voice on the recording is helpful to the State's case, but authentication would also require other predicate evidence, including that the recording was of a telephone call received and handled by the 911 system on the relevant date."). As for hearsay, the prosecutor indicated that she planned to introduce testimony that the victim was upset at the time of the call. This suggests that the State planned to seek admission under the excited-utterance exception to hearsay. We further note, contrary to the claim of the dissent, that the State never indicated that it sought admission under the "public records and reports" exception. Only the judge uttered the phrase "public record," and as indicated above, was referring to authentication, not to a basis for admission of hearsay.
"Authentication or identification of evidence is required as a condition precedent to its admissibility." § 90.901, Fla. Stat. In other words, authentication is a separate requirement from admissibility. Both were discussed at the pretrial hearing; we reject the dissent's contention that "[a]rgument at the pre-trial hearing focused exclusively on whether the State had a basis for overcoming his hearsay objection." Dissenting op. at 242. In fact, very little of the pretrial argument addressed Schluck's hearsay objection.
While we indicated above that in some situations a party may not have preserved an argument that a hearsay exception does not apply, this is not the case here given the perfunctory nature of the proponent's argument in support of an exception and the court's denial of the objection right after the argument.
We believe that the court asked about authentication as a "public record" because some public records may be authenticated under a procedure in section 90.902(4), Florida Statutes. This procedure does not actually apply to authenticate a recording, but it appears to us that this is why the judge mentioned the phrase. This possibility seems far more likely than the idea that the judge was referring to the public-record exception to the hearsay rule.
Second, we note that the proceedings following this hearing indicated that the recording had been admitted under the excited-utterance exception. No mention of the public-record exception was made at trial. At the motion for new trial hearing, the prosecutor argued that the evidence was admissible as an excited utterance. And in this appeal, the State never argues that the evidence fell under the public-record exception to the hearsay rule.
Third, our conclusion is bolstered by the fact that the public-record exception plainly does not apply. "Records that rely on information supplied by outside sources ... are inadmissible under [the public-record exception]." Lee v. Dep't of Health & Rehab. Servs. , 698 So. 2d 1194, 1201 (Fla. 1997) (citation omitted). "In Florida, rather than offering this type of record, a witness must be called who has personal knowledge of the facts." Id. See also Reichenberg v. Davis , 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003) (holding that reports where "the authors simply related the substance of what the witnesses had told the authors" are not admissible under the public-records exception to the hearsay rule "because they were not based upon the personal knowledge of an agent of the ‘business.’ "). "To be admissible under these circumstances, the hearsay statements made to the authors must themselves fall within an exception to the hearsay rule." Id. (citing § 90.805, Fla. Stat.). We are unaware of any case where a recording of a call to police was admitted under the public-record exception to the hearsay rule. This fact helps to convinces us that the court never had any intention of admitting the recording under the public-record exception.
In conclusion, the court did not admit the recording under the public-record exception to the hearsay rule. For this reason, we find no fault on Schluck's part for failing to address it.
III
A
An excited utterance for hearsay-exception purposes, set forth in section 90.803(2), Florida Statutes, is not merely an utterance made while excited. To qualify as an excited utterance, a statement must satisfy the following elements: "(1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event." State v. Jano , 524 So. 2d 660, 661 (Fla. 1988). If a statement is made "well after the startling event," the proponent must "offer some proof that the declarant did not engage in a reflective thought process." Blandenburg v. State , 890 So. 2d 267, 271 (Fla. 1st DCA 2004).
Applying these principles, the victim's statements do not qualify as excited utterances. The evidence does not show what time the offense occurred, but Schluck left the victim's dorm building at 7:14 a.m., and the victim called campus police at 7:44 a.m. While a half an hour passed between Schluck's departure and the report, the victim's statement that she had been raped "last night" implies that the period between the offense and the call had been longer; the intervening time was clearly enough to distinguish between night and morning. Moreover, the record indicates that the victim spoke with her roommate, who advised her to gather her clothes and call the police, before making the report. , This shows that rather than immediately calling, the victim considered what she should do—in other words, she did engage in a reflective thought process. Although this by no means shows that she did in fact contrive or misrepresent, it shows that her statement does not satisfy the test for the excited-utterance exception to hearsay. While a sexual battery is startling enough to cause nervous excitement and the victim was clearly upset during the call, the only evidence related to timing shows that the call came the morning after the crime and after the victim was able to engage in a reflective thought process. However, we emphasize that the law does not require affirmative proof of reflective thought to render a statement made "well after the startling event" inadmissible as an excited utterance. Instead, the burden is on the proponent of the excited-utterance exception to offer proof that no reflective thought occurred. The State has not done so here. Again, this Court does not and cannot make its own determination of whether the statement was true. We may consider only whether the statement qualified as an excited utterance for purposes of an exception to inadmissible hearsay.
The dissent contends that this observation is a "cornerstone" of our analysis and that it cannot be considered because it was contained in a police report "that was not entered in evidence and was never presented to or relied upon by the trial judge." Dissenting op. at 248 (emphasis omitted). As stated above, the State never directly invoked the excited-utterance exception until after trial, so Schluck was given no real opportunity to support his opposition to the exception. As for the fact that it was not relied on by the trial judge, this observation does not change our view that the argument was adequately preserved for review. More importantly, even if we accepted the notion that we cannot consider a matter in the record unless it was admitted into evidence or explicitly considered by the trial court in ruling on admissibility, it would not change our view. The report is not a "cornerstone" of our conclusion. Even without evidence of a report that the victim spoke to her roommate prior to the call, the record does not demonstrate that the victim did not engage in reflective thought, which the proponent of the hearsay exception was required to prove.
To support its argument that we cannot consider the police report, the dissent cites Fla. Livestock Bd. v. Hygrade Food Prod. Corp. , 141 So. 2d 6 (Fla. 1st DCA 1962). The appellant's brief there referred to non-record material, which had been included in an appendix to the brief. Nothing of the sort occurred here. The disputed report here is part of the record on appeal. We reject the dissent's notion that we are attempting to "retry[ ] a case" by mentioning this report, Dissenting op. at 248; we are merely addressing a discrete evidentiary ruling of the trial court.
We reject the dissent's contention that "[t]he unrebutted evidence is that the victim was emotional[ly] overwrought, disoriented, and awakening from severe inebriation prior to and during the call." Dissenting op. at 248. No evidence shows that the victim was disoriented or just awakening when she called the police. The evidence of her inebriation is that around 3:00 a.m. her blood-alcohol content was between 0.14 and 0.26 deciliters per gram, most likely between 0.16 and 0.18. Even prior to the incident, over four hours before the call, she was able to walk on her own, and the evidence indicates that she did not consume more alcohol after that point.
The dissent cites to two Fourth District Court of Appeal decisions to show that speaking to a third party before calling the police does not necessarily prevent statements from being excited utterances. This is true, but those cases do not apply here. Akien v. State does not describe the victim's emotional state on the phone. 44 So. 3d 152 (Fla. 4th DCA 2010). Evans v. State does, and in that case, the victim was "in shock ... stunned and extremely concerned that she was still in danger." 248 So. 3d 155, 159 (Fla. 4th DCA 2018). Additionally, Evans explicitly stated that if time has passed between the startling event and the statement, the statement cannot be an excited utterance unless "at the time of the statement, the declarants were either ‘hysterical,’ severely injured, or subject to some other extreme emotional state sufficient to prevent reflective thought." Id. (quoting Blandenburg , 890 So. 2d at 270 ). Evans supports our conclusion. This does not mean that the victim's statements were not credible; it means only that they were not excited utterances.
B
Having found that admission of the recording was error, we next determine whether that error was harmless. In making this determination, it is not enough to say that the evidence would have been sufficient to support the conviction without the improperly admitted evidence, or even whether the evidence would have been overwhelming. See State v. DiGuilio , 491 So. 2d 1129, 1139 (Fla. 1986) (noting that the test for harmless error "is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test"). See also Johnson v. State , 53 So. 3d 1003, 1005 n.3 (Fla. 2010) (emphasizing that harmless error is not determined by showing "overwhelming evidence" of guilt). The focus must be on the effect that the error had on the jury's verdict. The harmless error test requires the State to "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." DiGuilio , 491 So. 2d at 1138. Put another way, "[t]o say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." United States v. Pon , 963 F.3d 1207, 1227 (11th Cir. 2020) (citing Yates v. Evatt , 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) ).
In short, an appellate court cannot find an error harmless simply by noting that the jury could have found the defendant guilty without the erroneously admitted evidence. The court must consider whether the erroneously admitted evidence was an important part of the State's case. Here, the recording was the only direct evidence of the victim's lack of consent and the only evidence where the jury heard directly from the victim, who was distressed in the recording and reported that she had been raped. In spite of other evidence that supported the State's contention that the victim did not consent, it cannot show that there is no reasonable possibility that the recording contributed to the verdict. For these reasons, we reverse and remand for a new trial. While Schluck may have identified other errors below, in view of our reversal we do not address the additional issues he asserts.
The dissent notes that the forensic examiner testified that the victim "reported that she had been sexually assaulted." Dissenting op. at 250. This evidence was admitted explicitly as a statement for the purposes of medical diagnosis or treatment under section 90.803(4), Florida Statutes, and therefore does not constitute direct evidence of the victim's lack of consent.
Osterhaus, J., concurs; Makar, J., dissents with opinion.
Makar, J., dissenting.
A jury convicted Andrew M. Schluck, age forty, of illegally entering the dormitory of a nineteen-year-old college freshman and raping her during the early morning hours of Thursday, August 31, 2017. A part of the evidence against Schluck was a one-minute audio recording of the victim's call to the university police upon awakening that morning and discovering that she had been sexually assaulted. The trial judge allowed the jury to hear the call, which was both legally permissible and an appropriate exercise of the broad discretion that trial judges have in such circumstances. Because the majority concludes to the contrary, and reverses Schluck's convictions for burglary and sexual assault, I dissent.
I.
This case presents an all too familiar scene: a young co-ed is targeted for sexual predation while vulnerable from a night of social drinking. The victim's early morning call to university police after she awoke must be understood in this context because the victim was sexually assaulted while severely intoxicated and made the call to university police soon after regaining awareness.
The victim had just begun her fall semester at Florida State University and was in a sorority. Both she and her high school friend, also a sorority sister, had started in the summer session. They decided to go out with a group of their sorority sisters to socialize on a Wednesday evening, leaving campus about 10pm and walking to a nearby dance club ("Tenn") where they stayed until 1am. They then walked to a friend's home adjacent to the campus, returning to the university grounds around 3am, where they lived in different dormitories. ("Everything is walking distance at FSU. So we walked from our dorm to the bar. We walked from the bar to our friend's. And then we walked from our friend's back home.").
As undergraduates tend to do, regrettably, both the victim and her friend had consumed lots of alcohol despite Florida's drinking age of twenty-one, so much so that both were "definitely" drunk according to the friend, who had seen the victim both sober and tipsy in the past. The victim's degree of intoxication was so severe that she "was barely able to walk" and "farther gone" than the friend had ever seen her. Both drank heavily before leaving campus and also while at the dance club (where bartenders poured them drinks without requesting identification), but they did not drink thereafter.
As they returned to the FSU campus and walked to the victim's dormitory at around 3:30am, Schluck—whom neither had previously met—was lingering outside and approached them at the student entrance. He attempted to chat them up, commenting on the victim's drunken state and asking how much alcohol she had consumed. At no point was Schluck invited to assist or enter the dorm, yet he did so anyway, ostensibly to be helpful, but the friend was suspicious and took a picture of him (because he "wasn't like a friend ... [who'd] come in just for a second" to assist). Video evidence shows Schluck following closely behind both women (with his cellphone in hand trying to get their social media accounts) as they scurried into the dormitory. The reason why the friend did not order Schluck to leave the dormitory was because it didn't "cross [her] mind that [Schluck] wouldn't have been a college student."
As it turns out, Schluck was not a student and he was illegally on campus. University police had issued a trespass notice against him in 2015 precluding him from entering or being anywhere on the FSU campus at any time. Nonetheless, he was loitering outside the victim's dormitory in the wee hours of a weekday morning, entering the campus and then the dormitory in direct violation of the no trespass order.
The victim, who had difficulty getting her access card from her purse and opening the door, went into her room with her friend, again with Schluck closely following them. At this point, the friend "told him, no, you can't come in here, get out. And [she] shut the door kind of forcefully, [and] locked it."
Once in the dorm room, the friend locked the door with the inside deadbolt. She spoke briefly to the victim, who was "still very drunk" and "her speech was definitely slurred." The friend, who instructed the victim to lock the deadbolt from inside upon the friend's departure (because the friend had no way to lock the room from the outside without an access card), left when the victim went to bed. ("My plan was to get her back to her dorm and then I would walk back to mine.").
As she departed the dormitory, the friend noticed Schluck loitering in the hallway, again seeking her name and social media information at which "point [she] was pretty freaked out" and "swiftly walked" away. Because she believed the victim would safely lock herself in her own dorm room, she departed at 3:35am, believing that Schluck had done the same.
Surveillance video showed, however, that Schluck left the dormitory at 7:14am after engaging in sex with the victim in her dorm room despite her extreme degree of intoxication and the prior admonitions for him to stay away and leave. The victim, who had difficulty recalling the assault due to her intoxication, awoke and made a call to university police at 7:44am, stating in the one-minute recorded call that "I think I was, like, raped last night" and that she did not know who the perpetrator was; her voice was stressed, frail, and overwrought. An officer was immediately dispatched.
The victim was interviewed by police officials and soon thereafter was taken by an FSU investigator to a local hospital to undergo examination with a so-called "rape kit" that entails completely disrobing and submitting to a full body evaluation, surrendering clothing items for evaluation and evidence, and having vaginal and oral secretions collected. Kathy Walker, the forensic examiner, testified that the victim "reported a vague recollection of the assault" in her dorm room where she was in "a kind of transient state between sleep and awake." The victim said that she may have been "drugged" based on "how she felt," so a toxicology report—which required that the victim provide a blood sample—was prepared because "it was a short time between what happened to her and when she reported" the incident. When asked on cross-examination why she considered it a "short time," Walker testified that "[m]ost people—actually studies have told us that—people don't report [sexual assault] for a few days. And [the victim] reported within a few hours."
Results of the rape kit plus a court-ordered penile swab later obtained from Schluck established conclusively that Schluck's DNA was present in victim's cervix; the odds being "greater than 700-billion times more likely" that the male profile was from Schluck.
Intoxication of the victim was substantial, even many hours after the sexual assault. At 10:45am on the day of the incident, her blood sample had an alcohol content of 0.063, which is a bit under Florida's threshold for driving under the influence (DUI) (0.08), but still very high given she had not consumed alcohol in at least eight hours. This degree of late-morning intoxication means that her blood alcohol level eight hours earlier at around 3am would have been between 0.14 and 0.26 based on a widely accepted retrograde extrapolation that uses scientific principles and a mathematical formula, one that is often used to prove that a driver was intoxicated at an earlier time when an accident occurred. See, e.g. , Vitiello v. State , 281 So. 3d 554, 558 (Fla. 5th DCA 2019). Females and younger persons tend to eliminate alcohol from their blood faster than males and older persons, so the estimated blood alcohol level of the victim at 3am would tend to be toward the higher estimate of 0.26.
In explaining the victim's likely degree of impairment at the time of the sexual assault and when she made the call to university police, crime laboratory analyst Tyler Scott testified that alcohol depresses the central nervous system, resulting in a range of effects on brain functions including drowsiness, decreased wakefulness, and reduced mental cognition, body control, and muscle coordination. At the upper range of the intoxication estimate for the victim at 3am (0.26), a person would likely be in a "stupor" and "very close to unconsciousness" including inability to pay attention, lack of alertness, and "muscle incoordination" to the point of inability to control movement. ("They can't walk. They can't talk. They can't perform movement. They're going to be very confused, disoriented at the .26."). At the lower range (0.14), the individual would be in a confused state where muscular coordination is impaired. ("It should be evident at the .14 that you're not able to control your body as well as you should be."). In addition, slurred speech, impaired judgment, inattentiveness, lethargy, and depressed wakefulness would be evident. Whether at the upper or lower range, it would be apparent that the person was under the influence of alcohol or a drug that impaired mental and physical abilities. ("If you were around that individual it should be apparent that they had consumed alcohol or some type of drug that would cause this impairment.").
Based on the testimony of the victim's friend, the victim's father, the police officers involved in the investigation and collection of evidence, and the toxicologists, as well as the video and documentary evidence (including the one-minute call to university police), the jury found Schluck guilty of (a) burglary of an occupied dwelling during which a battery of the victim occurred; and (b) sexual battery.
The jury determined no assault occurred, which is consistent with the evidence that the victim may not have been mentally aware of a threat made to her; plus, an assault is not necessary to prove that a battery occurred. Goswick v. State , 143 So. 2d 817, 820 (Fla. 1962) ("A battery necessarily includes some actual physical contact with the victim, such as by striking him with the weapon which is employed. By contrast an assault does not require physical contact."); Kirby v. State , 68 So. 3d 932, 933 (Fla. 5th DCA 2011) ("Assault and battery are separate and distinct offenses because they proscribe different acts.").
The jury did not find that the victim was "physically helpless," which would have escalated the sentencing range; instead, it concluded that the sexual encounter was non-consensual, meaning that "intelligent, knowing, and voluntary consent" was lacking. The jury was entitled to conclude that the victim was unable to consent due to a high level of intoxication affecting her mental state , but that her physical helplessness was not established beyond a reasonable doubt.
II.
On appeal, Schluck argues, in part, that admission of the call to university police (a) "was a fundamental error that violated [his] right to be confronted with the witnesses against him," including the victim who did not testify, and (b) was error because it was not "an excited utterance." A preliminary matter is whether Schluck preserved either of these two related claims.
Pre-trial, Schluck raised a generic hearsay objection to the call's admission. Argument at the pre-trial hearing focused exclusively on whether the State had a basis for overcoming his hearsay objection. After Schluck's counsel objected on hearsay grounds, the following discussion occurred in response:
THE COURT: Okay. Well, you have somebody that's going to authenticate it as a public record ?
[THE STATE]: Yeah. The IT person will authenticate it as the audio recording from the system. And then ... a friend [of the victim] will authenticate her voice.
THE COURT: Okay.
[THE STATE]: As well as the fact that she was upset at the time of the call.
THE COURT: Okay. Overruled.
(Emphasis added.) The trial court plainly understood that the State was seeking admission of the call as a "public record," i.e., one authenticated from the university police's audio recording system, which is an exception to the hearsay rule. That the judge spoke the words "public record" (to which the State affirmatively agreed ("Yeah")) in direct and immediate response to Schluck's hearsay objection, is most reasonably understood as relating to the public records hearsay exception; why else would the trial judge have then denied the objection in his next breath? The trial court later overruled Schluck's renewed hearsay objection during the trial when the call was formally authenticated as a public record and a friend of the victim identified her voice.
See § 90.803(8), Fla. Stat. (2021) (public records and reports); see also Charles W. Ehrhardt, 1 Fla. Prac., Evidence , § 401.4 (Audio tape recordings) (2021 ed.) ("There is no list of requirements that must be met to authenticate. This authentication may be supplied by the technician who operated the device or by any other person with knowledge. The identity of the speaker may be established by the testimony of a person who can identify the voice, by circumstantial evidence, or by a voiceprint."). Subsection (8) excludes from criminal cases "matters observed by a police officer or other law enforcement personnel," but the exclusion was not invoked below and does not appear to be applicable here.
It is incorrect to say that the State didn't "explicitly" raise any hearsay exception until it responded to Schluck's untimely post-trial confrontation clause objection and that "Schluck argued that the evidence was hearsay and the court immediately denied the objection."
On appeal, however, Schluck has not challenged the trial court's ruling in favor of the State on the basis upon which admission was actually permitted, i.e., that the call was an official public record. He has thereby waived his ability to contest the call's admissibility on this basis, i.e., that it is admissible hearsay under the official public records exception. See generally Philip J. Padovano, Fla. App. Prac . § 8.10 (Waiver) 177 (2018 ed.) ("A point that was raised before the trial court but not addressed in the brief or petition filed in the appellate court cannot be used as a ground for reversal. Failure to pursue the argument on appeal or review is a waiver of the point."). While the State appeared to abandon the public record exception in the post-trial proceedings, that does not foreclose this Court from affirming under the tipsy coachman doctrine. See Blount v. State , 152 So. 3d 29, 30 (Fla. 1st DCA 2014) (affirming criminal conviction under tipsy coachman doctrine); Taylor v. State , 146 So. 3d 113, 115 (Fla. 5th DCA 2014) (affirming criminal conviction and admission of statements as excited utterances under the tipsy coachman doctrine); Ruff v. State , 115 So. 3d 1023, 1025 (Fla. 4th DCA 2013) (affirming criminal conviction based on admission of a spontaneous statement under the tipsy coachman doctrine). Even if the trial court erred in relying on the excited utterance exception (which it did not, as discussed below), it did not err in relying on the public record exception. Sexton v. State , 221 So. 3d 547, 555 (Fla. 2017). The trial court's denial of Schluck's hearsay objection is supportable under the tipsy coachman doctrine based on the actual basis asserted below (but not challenged on appeal) that the call was a public record . In contrast, a tipsy coachman "reversal"—by which an appellate court reverses a judgment on this basis (as the majority does here)—is not allowed. See Fla. Carry, Inc. v. Univ. N. Fla. , 133 So. 3d 966, 977 (Fla. 1st DCA 2013) (noting that a "tipsy coachman" reversal is "a jurisprudential device unknown in the law[ ]").
Whether the public record exception has been previously applied in this context is less important than the fact that Schluck waived the issue.
The tipsy coachman doctrine "allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ " Robertson v. State , 829 So. 2d 901, 906 (Fla. 2002) (citation omitted). The "key to the application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court." Id. at 906–07.
Schluck's general hearsay objection at trial was likewise inadequate to preserve a confrontation clause claim. See Corona v. State , 64 So. 3d 1232, 1242 (Fla. 2011) ; Williams v. State , 967 So. 2d 735, 748 n.11 (Fla. 2007). A confrontation clause challenge to hearsay evidence must be made prior to or during trial so that the trial judge can make a ruling on its admissibility before the jury hears the evidence. Schluck failed to do so, raising the confrontation clause issue for the first time after the jury's verdict in a motion for new trial, which was too late. He failed to make a contemporaneous confrontation clause objection when the State sought admission of the call into evidence, thereby forfeiting appellate review of the issue. Williams , 967 So. 2d at 748 n.11. ("Since Williams failed to allege a confrontation violation in objecting to the admission of [victim's statements in a 911 call], his Crawford challenge was not preserved.").
In addition, the call to university police was nontestimonial and thereby not violative of the Sixth Amendment under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). That's because the purpose of the call was to report a crime and obtain assistance. Lopez v. State , 888 So. 2d 693, 699 (Fla. 1st DCA 2004) ("Many courts have concluded that a hearsay statement made in a 911 call is not testimonial, because the statement is not made in response to police questioning, and because the purpose of the call is to obtain assistance, not to make a record against someone."); see also Barron v. State , 990 So. 2d 1098, 1101 (Fla. 3d DCA 2007) (call made to obtain assistance is nontestimonial and does not violate Crawford ).
III.
A.
The admission of the victim's call to university police is well within the applicable standard of appellate review, which requires that the trial judge have committed an "abuse of discretion" in admitting the evidence. The oft-quoted definition of this deferential standard is that "a ruling will be upheld unless the ruling is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court." Banks v. State , 46 So. 3d 989, 997 (Fla. 2010) (quotations omitted). A brief review of the evidence code, the precedent that addresses the excited utterance exception, and the facts construed in the State's favor demonstrate that no abuse of discretion occurred. To begin, chapter 90 of the Florida Statutes contains the state's evidence code, which applies to civil and criminal proceedings. As a general matter, hearsay—which "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"—is not admissible absent an exception. §§ 90.801(1)(c), .802, Fla. Stat. (2021) ("Except as provided by statute, hearsay evidence is inadmissible.").
Williams v. State , 967 So. 2d 735, 747–48 (Fla. 2007) ("Generally, a trial court's ruling on the admissibility of evidence will be upheld absent an abuse of discretion.") (upholding admission of 911 call as an excited utterance); Baity v. State , 277 So. 3d 752, 754 (Fla. 1st DCA 2019) ("A trial court's ruling on the admissibility of a statement as an excited utterance is reviewed for an abuse of discretion.") (upholding admission of mother's voicemail to defendant's girlfriend, stating defendant was going to beat her); Lee v. State , 268 So. 3d 904, 908 (Fla. 1st DCA 2019) ("A trial court's decision to admit evidence is generally reviewed for abuse of discretion.") (upholding admission of 911 call as an excited utterance).
The legislature has carved out by statute a category of hearsay statements that are admissible without regard to whether the declarant is available to testify. Id. § 90.803 (entitled "Hearsay exceptions; availability of declarant immaterial"). One of the statutory exceptions is an excited utterance , which is defined in full as a "statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Id. § 90.803(2).
The focus in this case is whether the trial court's admission of the victim's call to university police is supported by evidence that the victim was "under the stress of excitement" caused by the event, a sexual assault, at the time of her call. It decidedly was.
First of all, the evidence established that the victim's mental state immediately before the 7:44am call was somewhere on a continuum between potentially unconscious, stuporous, and disoriented/confused. She was severely inebriated with all its associated mental and physical side effects—as the scientific evidence and testimony demonstrated—leaving negligible room for a reflective thought process during this time. Beyond the scientific and medical evidence about her mental state, her friend described the victim's level of intoxication prior to the assault as "farther gone" than she had ever witnessed. The victim's mental state was so diminished, according to the forensic examiner, that the victim felt like she had been in "a kind of transient state between sleep and awake" and thought that she'd been drugged. At 10:45am, her blood alcohol level remained very high, reflecting a persistent diminishment of her cognitive abilities.
It takes little imagination to conclude that the victim's state of mind was not one of deliberative or reflective thought prior to or at the time of her call to university police; far from it. Awakening from severe inebriation in a stoned out mental state, thinking she had been drugged, and realizing that she had been sexually assaulted by a stranger, provides a solid basis for concluding that the victim was "under the stress of excitement" arising from the startling event and condition at the time of the call to university police and had not engaged in reflective thought. See generally Ehrhardt, supra , § 803.2 ("As long as the excited state of mind is present when the statement is made and there has not been an opportunity to engage in reflective thought , the statement is admissible if it meets the other requirements of section 90.803(2)." (emphasis added)).
Buttressing that the victim was under the stress of the sexual assault that morning is the testimony of the victim's friend that even the day after the incident the victim "was devastated. I mean, she's already an anxious person. And it was just on another level. Kind of couldn't even wrap her mind around it." That the victim was "devastated" the day after the rape supports that she was "under the stress of excitement" of the sexual assault at the time of her call to university police that morning. Indeed, the victim was so distraught that she transferred from FSU and could not bring herself to discuss the "incident" with anyone, including her parents, even two years after the sexual assault.
Next, the plain statutory language of the excited utterance exception includes no time or temporal restrictions; it merely requires proof that the statement to be admitted relate to a "startling event or condition" and be made while the declarant was "under the stress of excitement caused by the event or condition." An interpretive judicial gloss on this statutory language is that a declarant's "statement must have been made before there was time to contrive or misrepresent" what was said. State v. Jano , 524 So. 2d 660, 661 (Fla. 1988). This concept arose, not because the statute's language has such a limitation, but because as time passes, a declarant will generally have greater opportunity to engage in reflective thought thereby reducing the "stress of excitement" caused by the event or condition. See generally Ehrhardt, supra , § 803.2 ("A person who is excited as a result of a startling event does not have the reflective capacity essential for conscious misrepresentation; therefore statements that are made by the person who is in a state of excitement and has not had an opportunity to engage in reflective thought are spontaneous and have sufficient guarantees of truthfulness." (footnotes omitted)).
As to the passage of time, our supreme court has said that "the immediacy of the statement is not a statutory requirement " and, instead, the "length of time between the event and the statement is a factor to be considered in determining whether the statement may be admitted under the excited utterance exception." Henyard v. State , 689 So. 2d 239, 251 (Fla. 1996) (emphases added). Passage of time, by itself, is not disqualifying and must be considered in conjunction with other factors such as "the age of the declarant , the physical and mental condition of the declarant , the characteristics of the event , and the subject matter of the statements ." Ehrhardt, supra , § 803.2 (emphases added).
Thus, a statement made 30 seconds, 30 minutes, or even 30 hours after the occurrence of a startling event is admissible provided the declarant was "under the stress of excitement caused by the event or condition" as established by the totality of these factors. Indeed, a victim's "excited state may exist a significant length of time after the event. " Id . (emphasis added) (footnote omitted). Legions of cases fall within the "up to thirty-minute" timeframe and a smaller number exist where days have passed; the latter involves situations where a victim awakens or regains consciousness and is first able to comprehend and communicate about the startling event or condition, a state of so-called "suspended excitement." See, e.g. , Apolinar v. State , 106 S.W.3d 407, 417–18 (Tex. App. 2003) (excited utterance where victim "was either having surgery, heavily medicated, unconscious, or incoherent" from time of assault until making the statement), aff'd , 155 S.W.3d 184 (Tex. Crim. App. 2005) (holding that victim's statement regarding his attack, made to his daughter four days after the attack occurred, was admissible under the exception to the hearsay rule for excited utterances); see also Ehrhardt, supra , § 803.2 ("If a person involved in an automobile accident is rendered unconscious, a statement made a number of days after the accident when he or she regains consciousness can be admitted as an excited utterance if it was made while the person was excited about the accident." (footnote omitted) (citing Cestero v. Ferrara , 57 N.J. 497, 273 A.2d 761, 763 (1971) (holding admission of patient's statement in hospital "made very shortly after her return to reality"))).
Evans v. State , 248 So. 3d 155 (Fla. 4th DCA 2018) (statements made 20 minutes after rape); Akien v. State , 44 So. 3d 152 (Fla. 4th DCA 2010) (statements made roughly five minutes after sexual battery); see also W.A. Harrington, Time element as affecting admissibility of statement or complaint made by victim of sex crime as res gestae, spontaneous exclamation, or excited utterance , 89 A.L.R.3d 102 (originally published in 1979).
Applied here, the evidence establishes that the victim made the call to university police in the early stages of regaining her mental awareness. Her mental condition throughout the morning hours was greatly diminished and was gradually transitioning from either an impaired unconsciousness/stupor to, at best, a very confused and disoriented state of mind. The trial judge was entitled to conclude that the victim's weakened mental condition made it implausible that she had engaged in contrivance or misrepresentation. See Jano , 524 So. 2d at 661. Moreover, the victim made the call to university police promptly—within minutes after realizing she had been sexually assaulted versus the days that many sexual assault victims need to do so. As the toxicology expert testified, "it was a short time between what happened to [the victim] and when she reported" the incident and that "studies have told us that—people don't report [sexual assault] for a few days. And [the victim] reported within a few hours ." (emphasis added).
Even if the time between the victim's awareness of the sexual assault and the victim's call to university police was deemed to be "well after the startling event," the State easily met its burden to "offer some proof that the declarant did not engage in a reflective thought process." Blandenburg v. State , 890 So. 2d 267, 271 (Fla. 1st DCA 2004). As previously discussed, the evidence is unrebutted that the victim's mental state was greatly diminished due to inebriation and that she fell short of exhibiting a reflective thought process immediately prior to, at the time of, and even for days after her call to university police; no evidence exists that tends to show that the victim had the opportunity to reflect in a meaningful way prior to or when she made her statement. The trial judge's decision to admit the victim's statement was proper; no abuse of discretion is shown.
B.
Despite all this, Schluck—in his reply brief —points to a police report, which includes a brief mention that the victim may have spoken with her roommate before calling university police; this brief reference to the report is the only time he mentioned the report in this appeal. Because Schluck failed to raise the report in his generic pre-trial objection, in his renewed objection at trial, in his post-trial motion for new trial, and in his initial brief, he has waived the issue. Making a passing reference to the report for the first time in his reply brief doesn't cut it. Williams v. State , 845 So. 2d 987, 989 (Fla. 1st DCA 2003) (argument not raised in initial brief, and first presented in reply brief, cannot be considered). Beyond that, Schluck fails to mention that the report was not presented to the trial judge who ruled on both of his generic hearsay objections and his post-trial motion; the trial judge was probably unaware of the report because it was used only at a bond hearing before a different circuit judge.
The majority compounds error by relying on the report as a cornerstone of its analysis; it interjects as "fact" that the victim had spoken to her roommate the morning of the rape before she called university police, which is then used as supposition to conclude that the victim must have engaged in reflective thought. The majority fails to mention that this "fact" is merely an unsubstantiated statement in a police report that was not entered in evidence and was never presented to or relied upon by the trial judge who ruled on Schluck's hearsay objections and post-trial motion; it played no evidentiary role whatsoever in the trial court on the hearsay issue, yet it has been cast as a critical "fact" to support the majority's unwarranted speculation that the victim may have engaged in reflective thought.
Appellate courts should not be retrying a case based on evidence never presented to or relied upon by the trial court. Florida Livestock Bd. v. Hygrade Food Prods. Corp. , 141 So. 2d 6, 7 (Fla. 1st DCA 1962) ("How can a trial court properly consider a matter and decide same when counsel does not see fit to bring such matter to the court's attention? Appellate proceedings are not designed to be a depository of supposed facts and documentary evidence which were not considered by the trial judge."). This is particularly true when a party attempts to interject such matters in a reply brief for the first time. Id. ("Appellate courts do not exist for the purpose of conducting a trial de novo and it is highly improper for counsel to insert in their briefs matters and things which are not a part of the trial record and which have not been brought to the attention of the trial court for its consideration."). Rather than relying upon an unverified statement in a police report never entered in evidence and using it to reach conclusions about the victim's mental state, the majority should be condemning this practice. Id. ("This Court strongly condemns the practice of attempting to inject matters and things into appellate proceedings which have not been presented for the consideration of the trial court.").
Plus, even if a victim suffers a traumatic assault, speaks to a third party (who urges the victim to call police), and then calls police, the statements made during the call may still qualify as excited utterances. For example, the victim in Akien v. State called her mother five minutes after being raped. 44 So. 3d 152, 155 (Fla. 4th DCA 2010). The victim's mother convinced the victim to call 911 and the 911 tape was later admitted under the excited utterance hearsay exception. Id. The Fourth District found that "[w]hile the victim may have had an opportunity to engage in reflective thought, we cannot say that the trial court abused its discretion by allowing the introduction of the 911 tape." Id. Likewise, in Evans v. State , the victim called her son after being raped, waited fifteen minutes for him to arrive, and called 911 (twenty minutes after the rape); the call was later admitted at trial under the excited utterance exception. 248 So. 3d 155, 159 (Fla. 4th DCA 2018). Relying on Akien , the Fourth District found that because the victim was "crying and in shock" during the call and a responding officer "described the victim as in shock[,]" the trial court acted within its discretion in admitting the call. Id.
The unrebutted evidence is that the victim was emotional, overwrought, disoriented, and awakening from severe inebriation prior to and during the call. This situation is unlike those where the record affirmatively shows a victim engaged in reflective thought before making the statements sought to be admitted. See, e.g. , Elysee v. State , 920 So. 2d 1205, 1207 (Fla. 4th DCA 2006) (hearsay statement improperly admitted as an excited utterance where victim told police officers about sexual battery 15 to 20 minutes after coming in contact with police because the victim specifically stated, "At first it was just because I was scared, but I got to thinking about it and that's when I asked him if I could talk to him outside of the car, cause I wanted to tell him what happened." (emphasis added)); Pressley v. State , 968 So. 2d 1039, 1043 (Fla. 5th DCA 2007) (hearsay statement improperly admitted as an excited utterance where the victim called her mother, did not tell her about the sexual battery, but eventually did so 45-60 minutes later, reflecting a conscious decision to refrain from saying anything until a later point when she was no longer "under the stress of the startling event"). No such evidence was presented here.
The majority further strays from a deferential reading of the record by speculating that the "the victim's statement [at approximately 7:44am in the 911 call] that she had been raped ‘last night’ implies that the period between the offense and the call had been longer; the intervening time was clearly enough to distinguish between night and morning ." (Emphases added). Not so fast. First of all, the sun was just rising at the time of the victim's call; the hazy divide between night and day—given the victim's then-emerging consciousness—could easily explain why she said she was raped "last night." After all, Schluck illegally entered the victim's dorm room and raped her entirely during the night-time hours . It was dark when he entered the building (sometime after 3:30am) and it was dark when he left (at 7:14am); Schluck's crimes were entirely under cover of darkness, i.e., at night. As such, the victim's break-of-dawn statement can easily be understood to mean she had been raped during the darkness of the wee hours.
Further, even if the victim could have clearly distinguished between nighttime and daytime at the time of the 911 call—as the majority surmises—that ignores the record evidence that the victim was just awakening and regaining her mental consciousness; a victim emerging from an altered mental state—learning that she'd just been raped—can't be expected in a one-minute 911 call to have articulated herself differently. The majority downplays and reinterprets what the record supports: that the victim's mental state was under the distress caused by the rape at the time of the call to university police, thereby undermining the argument that she fabricated her statement. Rather than reading the record in a way most deferential to the trial judge's ruling, the majority does the opposite by minimizing the evidence of mental distress that the rape victim endured as exemplified in this case and parsing her statement ("last night") in a way that a reasonable trial judge (or person) could easily reject.
All of this ignores the deferential appellate standard of review. The majority—rather than assessing the record favorably to the State—misapplies this standard, which says trial courts have broad discretion that will not be reversed "unless there has been a clear abuse of that discretion," meaning that "no reasonable person would take the view adopted by the trial court." Jones v. State , 963 So. 2d 180, 185 (Fla. 2007). It is not for an appellate court to rebut and retry the facts and substitute its own viewpoint; the trial court heard the testimony, reviewed the medical evidence and testimony, and came to an entirely reasonable conclusion fully supported by the record, but one the majority simply casts aside: that the victim was subject to a "startling event or condition" (i.e., the rape) and made her call while "under the stress of excitement caused by the event or condition." Whether an excited utterance occurred requires detailed factual context; it isn't a matter of sympathy for the victim, it is a matter of respect for the factual record and regard for what a reasonable trial judge may conclude. Id.
C.
Finally, the State urges that even if the call to university police should not have been admitted, it was harmless error under Florida's harmless error statute, section 59.041, which states that:
No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of ... improper admission or rejection of evidence ..., unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.
§ 59.041, Fla. Stat. (2021). The totality of the evidence, construed in the State's favor, shows no miscarriage of justice.
In short summary, Schluck—a forty-year-old stranger barred from the FSU campus—loitered outside and then illegally entered the nineteen-year-old victim's dorm room in the early morning hours and engaged in sexual acts with her while she was severely inebriated. As to consent, the forensic examiner testified that the victim reported that she had been sexually assaulted in her dorm room while in "a kind of transient state between sleep and awake," believing she may have been "drugged" based on how she felt. In addition, the scientific evidence and toxicology reports and testimony establish a basis for concluding that the victim lacked the mental ability to consent; the jury was entitled to conclude that the victim's extreme intoxication and debilitated mental state precluded her ability to consent even if it couldn't decide if she was physically helpless. The victim's friend and father both testified about how the non-consensual nature of the assault had affected the victim, who had to drop out of college and couldn't even speak of the matter years later. All of the evidence supports the jury's finding that the encounter was non-consensual, meaning that "intelligent, knowing, and voluntary consent" was lacking. Even without the victim's statement, the totality of the evidence easily demonstrates that a forty-year-old stranger (subject to a university restraining order) was lurking at 3am outside a dormitory which he illegally entered to commit a non-consensual sexual assault on an incapacitated university freshman; the jury's verdict was just.
III.
Affirmance of the admission of the victim's call to university police was proper and, at worst, harmless error given the other record evidence of Schluck's crimes. The record supports affirmance, whether directly or via the tipsy coachman rule. Schluck's convictions for burglary of an occupied dwelling during which he sexually battered the victim should be affirmed.