FOGARTY

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2021-2233 _____________________________ MICHAEL VINCENT FOGARTY, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________

On appeal from the Circuit Court for Bay County. Dustin Stephenson, Judge.

December 18, 2024

TANENBAUM, J.

A jury found Michael Fogarty guilty of sexual battery on a helpless person, a violation of section 794.011(4)(b), Florida Statutes, a first-degree felony punishable by up to thirty years in prison. Under the legislatively directed sentencing scoresheet regime, Fogarty’s lowest permissible sentence for the offense of conviction was nine years’ imprisonment. Cf. § 921.0024, Fla. Stat.; see also § 921.0022(3)(i), Fla. Stat. (classifying this offense as level nine, the second highest in terms of “severity”). The trial court sentenced Fogarty to ten years’ imprisonment, rejecting the arguments made by Fogarty’s counsel for a sentence below the nine-year floor, determining there was no factual basis for any such departure. Fogarty now appeals both the judgment and the sentence, raising several possible grounds for reversal, all which we reject. We affirm and write to address one—his argument that

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7 testifying that the “observed foreign DNA profile is greater than 700 billion times likely to occur if these samples originated from Michael Fogarty than from an unrelated individual.”² II Fogarty contends the trial court erred by denying his motion for judgment of acquittal made at the close of the State’s case, arguing on appeal that the State did not present sufficient evidence of J.W.’s state of unconsciousness or lack of consent. He focuses on the fact that neither J.W. nor he had any memory of their having sex. This is a question we review de novo. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) (“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.”). The criminal charge against which Fogarty stood trial was the first-degree felony of sexual battery on a helpless person.³ For the State to make its case, it had to prove the following elements:

8

1.

Fogarty committed an act upon or with J.W. [the victim] in which his sexual organ penetrated or had union with her vagina.

2.

Fogarty did so without J.W.’s “consent.”

3.

J.W., at the time, was “physically helpless to resist.”

4.

At the time, J.W. was eighteen years of age or older.

5.

At the time, Fogarty also was eighteen years of age or older. Cf. § 794.011(4)(b), (e), Fla. Stat. There being no dispute about the first, fourth, and fifth of these, Fogarty focuses on the second and third. To be sure, it is the State’s burden to prove every element of a charged crime. See Campbell v. State, 109 So. 809, 810 (Fla. 1926). Yet a trial court must not take a criminal case away from a jury and render a judgment of acquittal as a matter of law “unless it be apparent that no sufficient evidence has been submitted upon which the jury could legally find a verdict of guilty.” Adams v. State, 189 So. 392, 393 (Fla. 1939). A defendant moving for a legal acquittal effectively “admits not only the facts stated in the evidence adduced, but also [] every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974) (emphasis supplied). For us to conclude the trial court erred in not granting Fogarty’s motion, the evidence presented by the State must have been so wanting “that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Id. In conducting our analysis of the question, we look to whether the State presented sufficient evidence—that is, both having some weight (more than a mere scintilla) and being the type on which one reasonably could rely as proof—as to each element of the offense as part of its case-in-chief. See Baugh v. State, 961 So. 2d 198, 203–04 (Fla. 2007) (stating the “well established” rule that a judgment of acquittal is required if the State fails “to present a

9 prima facie case” as to “each and every element of the offense charged” (internal quotation and citation omitted)); Scott v. State, 389 So. 3d 672, 675−77 (Fla. 1st DCA Mar.⁶, 2024) (Tanenbaum, J., concurring) (discussing quantitative and qualitative components of evidence sufficiency); see also McClellan v. State, 63 So. 419, 419 (Fla. 1913) (“[W]here there is some substantial competent evidence of all the facts legally essential to support the verdict . . . a refusal of the trial court to grant a new trial on the ground of the insufficiency of the evidence to sustain the verdict will not be disturbed by the appellate court.”). A key legal point here, missed by Fogarty on appeal, is that not just direct or circumstantial evidence counts toward the sufficient-evidence assessment, but also all reasonable inferences that could be drawn from that evidence to conclude the element has been adequately demonstrated. Cf. Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff’d sub nom. Tibbs v. Florida, 457 U.S. 31 (1982) (“Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” (emphasis supplied)). True, the evidence in the State’s case showed that neither J.W. nor Fogarty recalled the two having sex the night of the incident. There, however, was ample evidence tending to show J.W.’s debilitating state of drunkenness and Fogarty’s contrasting state of lucidity around the same time. After all, it was Fogarty himself that recalled—just a few hours later— dragging J.W., passed out, onto the couch. He remembered enough to know he had not had sex with her beforehand and to know he had run out the back of the apartment sometime thereafter, but he could not recall what happened once J.W. was on the couch. Fogarty simply fails to account for his own statement to police the morning of the incident, which made him the last person to have seen J.W. on the couch sometime after³:00 in the morning— passed out and, according to him, her pants still on but wet—before Shawn found J.W.—her breasts exposed, her pants pulled down, and her underwear pulled to the side, exposing her vaginal area— when Shawn woke up at 5:45 in the morning. A jury reasonably could put this evidence together with the evidence showing Fogarty’s semen on J.W.’s underwear and in her vagina and infer

10 that Fogarty had sex with her only after she was so drunk that there was no way she could have given intelligent, knowing, and voluntary consent. Given the timing of the events—Fogarty’s leaving her on the couch where she was found by Shawn—there also was enough evidence from which the jury could reasonably infer that the sex occurred after J.W. had passed out (i.e., was “unconscious”). On this record, we cannot say the State failed to present sufficient evidence to demonstrate a prima facie case of Fogarty’s guilt under the offense charged, Fogarty then not being entitled to an acquittal as a matter of law. Having limned the role inference plays in a sufficiency-ofevidence assessment, we want to be clear that each inference mentioned here could reasonably be drawn from direct evidence the State introduced as part of its case-in-chief (e.g., testimony plus the recorded statement Fogarty gave to police). Cf. Davis v. State, 90 So. 2d 629, 631 (Fla. 1956) (characterizing “direct evidence” as “that to which the witness testifies of his own knowledge as to the facts at issue,” and “circumstantial evidence” as “proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist” (emphasis supplied)). An inference is a permissible analytical move a factfinder may make in determining whether a proponent of a factual proposition has met the legally required burden of proof. Cf. Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403, 406 (Fla. 1954) (“Of course if none of the inferences on the one hand accords with logic and reason or human experience, while on the other hand an inference which does square with logic and reason or human experience is deducible from the evidence, the question is not for the jury but is one of law for the court.”); Shepherd v. Finer Foods, Inc., 165 So. 2d 750, 754 (Fla. 1964) (“So often astute lawyers fail to appreciate the fact that when this Court has spoken of inferences which may be drawn from circumstantial evidence it meant assuredly that such inferences had to be susceptible of being deduced from within the periphery of the sphere of the circumstantial evidence and that when one goes beyond such point he has entered the field of conjecture and speculation.”). One can legally infer conclusions from circumstantial evidence so long as the inference “is based upon some material or

11 reasonable conclusion, evidently deducible from an undenied and proven fact.” Newton v. State, 21 Fla. 53, 101 (1884). Moreover, [i]f the circumstance be such as affords a fair and reasonable presumption of the fact to be tried[,] it is to be received and left to the action of the minds of the jury, whose duty it is to determine its precise force and effect from the circumstances proved, and whether they are sufficiently satisfactory and convincing to justify them in finding the fact in issue. Id. Inference, then, is not evidence. It must be rooted in admitted evidence, meaning a fact-finder typically cannot draw an inference from an inference (sometimes called “inference-stacking”), our review for evidence sufficiency likewise ensuring an inference does not substitute for direct evidence that is lacking. But cf. Voelker, 73 So. 2d at 407 (acknowledging “often-stated rule against laying inference upon inference,” which “protect[s] litigants from verdicts or judgment based upon speculation,” but also noting that the rule “must yield” to an exception for the “inescapable inference,” on which a second inference may still be based). When we say a reasonable jury could infer that the sex Fogarty indisputably had with J.W. both lacked the requisite consent and occurred while J.W. was unconscious, we mean there were “parallel inference[s]” to be drawn—“[e]ach fact inferred [being] independent of the other,” rather than being “stacked.” Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So. 2d 1264, 1279 (Fla. 2003). Lack of consent could be inferred from the direct evidence that showed J.W.’s debilitating drunkenness from²:00 in the morning on. J.W.’s state of unconsciousness when Fogarty had sex with her could be inferred from the direct evidence of his dragging her to the couch with her pants on and leaving her there after she passed out and of his semen in her vagina and on her underwear waistband after she later was found on the same couch with her pants pulled down. We find no reversible error in the judgment of conviction or in the sentence.

AFFIRMED.

12 BILBREY and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Adam B. Wilson, Assistant Attorney General, Tallahassee, for Appellee.