STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL RANCOURT,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

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)

)

)

) Case No. 11-0167VWI

)

) Circuit Court Case

) No.: CF-96-05927B-XX

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)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 8 and 9, 2011, in Lakeland, Florida, before

Thomas P. Crapps, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: David Comras, Esquire

Law Offices of Comras and Comras, P.A. 1975 East Sunrise Boulevard, Suite 617 Fort Lauderdale, Florida 33304

For Respondent: Brian Toreky, Esquire

Office of the State Attorney

255 North Broadway Avenue Bartow, Florida 33830

STATEMENT OF THE ISSUE

Whether Petitioner, Paul Rancourt (Mr. Rancourt), established through clear and convincing evidence his actual innocence, thereby entitling him to compensation under the Victims of

Wrongful Incarceration Compensation Act, chapter 961, Florida Statutes (2011).1/

PRELIMINARY STATEMENT

On June 14, 2010, Mr. Rancourt filed a Petition for Determination of Wrongfully Incarcerated Person in the Circuit Court for Polk County, Florida, pursuant to chapter 961. State of Florida v. Rancourt, Case No. CF-96-05927B-XX (Fla. 10th Jud. Cir. Ct.). He subsequently filed an amended petition on

June 25, 2010.

On July 22, 2010, the circuit court issued an Order to Show Cause to the State Attorney's Office concerning Mr. Rancourt's amended petition.

On July 28, 2010, the State filed a Response Contesting Defendant's Petition for Determination of Wrongfully Incarcerated Person.

On August 16, 2010, Circuit Judge Ellen S. Masters entered an Order Referring Defendant's Petition for Determination of Wrongfully Incarcerated Person, pursuant to Florida Statutes chapter 961, to Division of Administrative Hearings.

The case was transmitted to DOAH on January 11, 2011, and assigned to Administrative Law Judge Thomas P. Crapps. On January 19, 2011, an Initial Order was issued, and a hearing was scheduled for May 3 through 5, 2011.

On April 6, 2011, Mr. Rancourt's counsel filed a Motion to Withdraw, and Mr. Rancourt filed an unopposed motion for continuance. The undersigned granted the withdrawal and re- scheduled the hearing for August 3 through 5, 2011. On July 20, 2011, Mr. Rancourt filed a second unopposed motion to continue, and requested additional time for his new counsel to prepare. The undersigned granted Mr. Rancourt's motion and requested the parties to provide dates for the rescheduled hearing. Based on the responses, the undersigned scheduled the hearing for

December 8 through 9, 2011, in Lakeland, Florida.

At the hearing, Mr. Rancourt presented the testimony of himself, Daniel McLean, Barbara Hoffman, and Brandon Perron. Further, he introduced into evidence his Exhibits 1 through 12 and

14 through 27. The State did not present any testimony, but introduced into evidence its Exhibits 1 through 4. The State's exhibits attached portions of the trial transcripts from

Mr. Rancourt's two underlying criminal actions.

Neither party ordered a court reporter to appear, based on the language in the Notice of Hearing that the "[a]gency shall be responsible for making arrangements for the court reporter." The parties stated that they assumed that DOAH would provide a court reporter or electronic recording. Notations contained in the undersigned’s DOAH file shows two days before the hearing, the undersigned's judicial assistant contacted the attorneys for each

side to determine whether a court reporter would be present at the hearing. Both attorneys informed DOAH that no court reporter would be present. The hearing began with Mr. Rancourt's testimony. At the first break in his testimony, the undersigned inquired whether or not the parties wanted to delay in an effort to obtain either a court reporter or an electronic recording of the testimony. The attorneys consulted, and with Mr. Rancourt present, determined to proceed without either a court reporter or electronic recording device.

On January 5, 2012, the parties filed proposed recommended orders. The undersigned considered the proposed orders, the testimony, and the extensive record exhibits, including witness statements and depositions, filed in this case in preparing the Recommended Order to the Circuit Court.

FINDINGS OF FACT

1. Before discussing the findings from the administrative hearing, it is appropriate to set out the procedural history of the criminal proceedings.

2. On December 18, 1996, the State charged Mr. Rancourt and Daniel McLean (Mr. McLean) with the kidnapping and three counts of sexual battery of A.S., which occurred on October 31, 1996.

3. On July 27 through July 30, 1998, the State tried Mr. Rancourt and Mr. McLean together. The jury convicted both

   
   

   men, and the trial court sentenced Mr. Rancourt and Mr. McLean to life imprisonment on each count with the sentences to run concurrently.

4. On April 5, 2000, the Second District Court of Appeal issued an opinion overturning Mr. McLean's conviction based on trial errors. McLean v. State, 754 So. 2d 176 (Fla. 2d DCA 2000). The appellate court reversed Mr. McLean's conviction for kidnapping because it found that the State "failed to prove [McLean] intended the kidnapping to occur, or that he performed any action that assisted in the kidnapping." Id. at 180. Further, the appellate court found that the trial court erred in two key evidentiary rulings. First, the trial court erred in allowing the State to elicit testimony from the medical provider who examined A.S. following the assault. The disputed question was: "[d]id she act in any way inconsistent with the way a rape victim would act?" Id. at 181. The appellate court found that the prejudicial effect of the expert testimony substantially outweighed its probative value. Id. Second, the trial court erred in excluding testimony under the Rape Shield Statute.3/ Id. Specifically, the trial court erred in not allowing Mr. McLean's attorney to cross-examine the medical provider about whether or not the A.S.'s soreness in her vulva area was due to the fact that she had not had sexual intercourse in the past year, as opposed to a sexual battery. Id. The appellate court found that this

   
   

   question went to a key issue of whether the sexual contact was consensual. The appellate court found the exclusion of this testimony was not harmless error; and thus, reversed Mr. McLean's convictions and sentences, and ordered a retrial.

5. On January 5, 2001, Mr. McLean, pursuant to a plea agreement, pled nolo contendere to one count of sexual battery, section 794.011, Florida Statutes (1996). Based on the plea agreement, Mr. McLean was sentenced to 64 and one-half months’ incarceration, which reflected his time served, and two years’ probation.

6. On June 14, 2000, the Second District Court of Appeal affirmed Mr. Rancourt's convictions for sexual battery and kidnapping, and his life sentences. Rancourt v. State, 766 So. 2d 1071 (Fla. 2d DCA 2000). In affirming Mr. Rancourt's conviction, the appellate court found that trial counsel had failed to preserve the issues concerning the medical expert's opinion vouching for the victim's credibility and the exclusion of the medical testimony under the Rape Shield Statute. On September 13, 2000, the appellate court issued its mandate.

7. On September 10, 2002, Mr. Rancourt filed a post- conviction motion alleging ineffective assistance of counsel. Notably, Mr. Rancourt's post-conviction motion alleged, in part,

   
   

   his trial counsel was ineffective for failing to preserve the evidentiary issues that had formed the basis of Mr. McLean's reversal.

8. On November 3, 2003, the circuit court entered an order vacating Mr. Rancourt's convictions and sentences "after considering the Motion and applicable law, and upon agreement of both parties[.]" The order directed that a new trial be held.

9. On September 27, 2005, the State re-tried Mr. Rancourt for sexual battery and kidnapping. The jury convicted

   Mr. Rancourt of the lesser-included offense of battery, section 784.03, Florida Statutes (1996), a first-degree misdemeanor.

   Consequently, the trial court sentenced

   
   

   Mr. Rancourt to one year in the Polk County jail with credit for time served.

10. On June 25, 2010, Mr. Rancourt filed the Amended Petition for Determination of Wrongfully Incarcerated Person, which is the subject of this hearing.

11. Mr. Rancourt has not been convicted of any other felony in any jurisdiction.

12. At the time of these events, Mr. Rancourt was a 32-year- old man, and A.S. was a 19-year-old freshman at Florida Southern College.

13. Mr. Rancourt, in offering proof of actual innocence, testified on his own behalf that the sexual encounter that

    
    

    occurred between him and A.S. was consensual. Mr. Rancourt's testimony on December 8, 2011, was consistent with the testimony that he had provided in his two criminal trials. Transcripts of Mr. Rancourt's prior testimony at the criminal proceedings were admitted into evidence.

14. Mr. Rancourt's testimony at the hearing concerning his meeting A.S. and the subsequent sexual encounter was not believable. Specifically, the undersigned did not find

    Mr. Rancourt's description of how a young woman, whom he had never spoken too, would at the closing of the bar grab him at the door as patrons attempted to leave the bar, and give him a "deep french kiss." Further, it was incredulous that after asking him for a ride back to her dorm room that A.S., while in the back seat of the car, would engage in a series of intimate gestures towards himself and his best friend, Mr. McLean. Finally, it was not credible that A.S. and Mr. Rancourt engaged in a consensual sexual encounter as described by Mr. Rancourt on the lawn of a home off a dark street.

15. The conclusion that Mr. Rancourt's description of the events is not credible is further bolstered by the testimony showing A.S.'s actions immediately after the sexual encounter,

    
    

    and Mr. Rancourt's untruthful responses to the police investigation following the events.

16. Mr. Rancourt also offered Mr. McLean, who testified that he witnessed A.S. acting as a "willing participant" in the sexual encounter with Mr. Rancourt. Further, Mr. McLean offered testimony that he did not engage in any sexual relations with A.S., and that he only pled to the sexual battery charge in order to avoid the risk of receiving another lengthy sentence.

17. Next, Mr. Rancourt brought forward the testimony of Brandon Perron (Mr. Perron), a private investigator, and introduced into evidence copies of Mr. Perron's investigative reports. The record shows that Mr. Perron prepared these reports as part of Mr. Rancourt's post-conviction efforts. The reports and Mr. Perron's testimony show that he identified many factual issues regarding Mr. Rancourt's convictions. Specifically,

    Mr. Perron raised issues concerning discrepancies in A.S.'s statements, testimony, and her motivations to lie concerning the events of October 31, 1996; discrepancies in witnesses' statements to the police investigator and testimony; poor and prejudicial police investigative techniques that overlooked potentially exonerating evidence showing that the sexual encounter was consensual; and defense counsel's failure to conduct an adequate investigation into potential witnesses. Although Mr. Perron was a persuasive witness for showing potential problems with the State's

    
    

    criminal case against Mr. Rancourt, Mr. Perron's testimony did not establish Mr. Rancourt's actual innocence.

18. Mr. Rancourt's final witness was his aunt, Barbara Hoffman (Ms. Hoffman). In October 1996, Mr. Rancourt and Mr. McLean were living with Ms. Hoffman while they sought

    employment. Ms. Hoffman's testimony concerned Mr. Rancourt's character and her opinion that he was not capable of committing a crime. Further, she testified about the day that law enforcement officers went to her home to ask Mr. Rancourt and Mr. McLean to come in for questioning. She testified that the detective investigating the events had prejudged Mr. Rancourt to be guilty of rape. The purpose of this testimony appeared to show that statements given by Mr. Rancourt and Mr. McLean to the police may not have been voluntary. It is noteworthy that neither

    Mr. Rancourt nor Mr. McLean was arrested; thus, the questioning was non-custodial. Moreover, Ms. Hoffman's testimony was marginally relevant in that it did not bring forward any fact showing that Mr. Rancourt was actually innocent of the sexual battery and kidnapping charges.

19. The State introduced evidence showing that the sexual encounter was not consensual. A.S.'s trial testimony shows that she consistently testified that the sexual encounter was not consensual.

    
    

20. In addition to A.S.'s trial testimony, the State introduced trial testimony of Angie Wren (Ms. Wren) and Issac McKeithan (Mr. McKeithan). The criminal trial transcript shows that Ms. Wren and Mr. McKeithan drove upon A.S. shortly after the event and saw a car quickly drive away from the area where A.S. was standing. Ms. Wren testified that A.S. was hysterical and crying, and "she just didn't look like she had been through anything good, that's for sure." A.S. reported to Ms. Wren and Mr. McKeithan that she had been raped. Ms. Wren and Mr. McKeithan drove A.S. to the Lakeland Police Department immediately, and the attack was reported. This testimony shows that A.S. contended that she had been raped moments after the sexual encounter.

21. Further, a review of the criminal proceedings shows that the State brought forward medical testimony showing bruises on A.S.'s arms. A.S. had testified that, before the attack, she did not have the bruises.

22. Finally, the criminal trial transcripts and testimony given at the December 8 through 9, 2011, hearing showed that Mr. Rancourt and Mr. McLean had provided false statements, and changed the story given to the officer conducting the investigation. Specifically, the trial transcripts, and

    Mr. Rancourt's testimony on December 8, 2011, showed that he told the investigator at first that he did not engage in sexual relations with A.S., then changed his story to claim that he and

    
    

    A.S. had sex in the vehicle, and then changed his story, yet again, to state that he and A.S. had consensual sex on the front yard of a home off a dark street. During his testimony on December 8, 2011, Mr. Rancourt acknowledged that the statements he gave about not having sex with A.S. and then having sex in the vehicle were false. Similarly, Mr. McLean, when asked if he and Mr. Rancourt had sex, informed the officer "no." Mr. McLean testified that he answered that way because he contended that he had not had sex with A.S. This parsing of words was not credible. The undersigned found these acknowledged false statements, made at the time of the investigation, persuasive evidence that Mr. Rancourt's explanation of the night was not credible.

    CONCLUSIONS OF LAW

    
    

23. DOAH has jurisdiction pursuant to section 961.03(4)(b).

    
    

24. Mr. Rancourt has the burden of proving by clear and convincing evidence his actual innocence and eligibility for compensation under the Victims of Wrongful Incarceration Compensation Act. § 961.03(5), Fla. Stat.

25. As stated by the Florida Supreme Court:

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the

    
    

    truth of the allegations sought to be established.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

    
    

26. At issue here, is a sexual encounter that occurred in the early morning hours of October 31, 1996, and whether the encounter was the result of a sexual battery and kidnapping or consensual sex. Mr. Rancourt has the burden of proving by clear and convincing evidence that he is actually innocent of the sexual battery and kidnapping and that he did not aid, abet, or act as an accomplice to a person who committed the act or offense that served as the basis for his incarceration.

27. Mr. Rancourt has failed to meet his evidentiary burden of proof in the following two respects. The first reason

    Mr. Rancourt failed meet his burden is that he failed to introduce clear and convincing evidence showing he is actually innocent.

    Mr. Rancourt failed to meet this burden because the undersigned found his testimony not credible, and the record shows two contradictory views of the events that occurred on the night of October 31, 1996. Moreover, the record shows that the jury convicted Mr. Rancourt of a lesser-included offense of battery; thus, it cannot be said that Mr. Rancourt was acquitted based upon exonerating evidence. The second reason that Mr. Rancourt is not eligible for compensation is that he does not meet the statutory

    
    

    definition of a "wrongfully incarcerated person" in that it is a undisputed fact that he aided, abetted, or acted as an accomplice to Mr. McLean, who was adjudicated guilty of sexual battery from the same events.

28. Mr. Rancourt did not bring forward evidence that was precise, explicit, lacking in confusion that produces the firm belief, without hesitation, that he was actually innocent of sexual battery and kidnapping. There was no evidence exonerating him of these underlying acts. In fact, in the second trial the jury convicted Mr. Rancourt of the lesser-included battery offense, as opposed to sexual battery. Thus, one cannot conclude that he is actually innocent.

29. As discussed in Fessenden v. State, 52 So. 3d 1 (Fla. 2d DCA 2010), the Victims of Wrongful Incarceration Compensation Act applies to a petitioner whose conviction and sentence were vacated based upon exonerating evidence. The Fessenden court stated:

    There is a substantial difference in our system of justice between the concept of "not guilty" and that of "actual innocence." The Bill Analysis and Fiscal Impact Statement prepared by the staff of the Judiciary Committee demonstrates that the Victims of Wrongful Incarceration Compensation Act was prompted by cases in which DNA evidence had exonerated defendants. See Fla. S. Bill Analysis & Fiscal Impact Statement of Mar. 26, 2008,

    § 2 for Bill CS/SB 756, p. 2 ("In Florida, at least nine people have been exonerated or released from incarceration since 2000, as a result of post-conviction DNA testing.").

    
    

    The legislature was concerned about compensating persons who were actually innocent, but not necessarily about paying people who had been found not guilty.

    Id., at 6.

    
    

    Here, Mr. Rancourt was not exonerated from wrongdoing, but rather, only found not guilty of the sexual battery and kidnapping. As such, he is not eligible for compensation.

30. Next, in addition to failing to meet the evidentiary burden, a reading of sections 961.02(4) and (5) and 961.03 shows that as a matter of law Mr. Rancourt is not eligible for compensation.

31. Section 961.02(4) provides the statutory definition of a "wrongfully incarcerated person." The statute provides that the terms mean:

    a person whose felony conviction and sentence have been vacated by a court of competent jurisdiction and, with respect to whom pursuant to the requirements of s.

    961.03, the original sentencing court has issued its order finding that the person neither committed the act nor the offense that served as the basis for the conviction and incarceration and that the person did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense.

    
    

32. Further, section 961.02(5) defines the terms "eligible for compensation" as meaning:

    a person meets the definition of "wrongfully incarcerated person" and is not disqualified from seeking compensation under the criteria prescribed in s. 961.04.

    
    

33. Finally, section 961.03(7) requires that in order to obtain compensation under chapter 961 the original sentencing adopt findings showing that a petitioner met the evidentiary burden of showing that he or she is a wrongfully incarcerated person and is eligible for compensation.

34. Turning to the facts here, it is clear that Mr. Rancourt does not meet the statutory definition of a "wrongfully incarcerated person" because he aided, abetted or acted as an accomplice or accessory to a person who committed the act or offense. The record clearly shows that Mr. McLean was adjudicated guilty of sexual battery based on the same events involving A.S. Mr. McLean's testimony that he only pled to sexual battery in order to avoid a lengthy sentence does not change the fact that he has been adjudicated guilty of the crime. The facts show that

Mr. Rancourt was a participant with Mr. McLean in the events of October 31, 1996. In fact, A.S.'s testimony claims that both men took part in a non-consensual sexual encounter. Furthermore, the jury at the second trial convicted Mr. Rancourt of the lesser included offense of battery. Thus, Mr. Rancourt can be considered to have aided, abetted or acted as an accomplice or accessory to Mr. McLean's sexual battery of A.S., and Mr. Rancourt is not eligible for compensation.

RECOMMENDATION

Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Mr. Rancourt has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Mr. Rancourt's claim for compensation, and dismissing his Petition.

DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2012.

ENDNOTES

1/ References to Florida Statutes are the Florida Statutes (2011) unless otherwise indicated.

2/ In order to protect the privacy of the victim, she is referred to by initials "A.S.," rather than her proper name.

COPIES FURNISHED:

Honorable Ellen S. Masters Polk County Circuit Judge

255 North Broadway Avenue Bartow, Florida 33830

Richard Weiss, Clerk of Court Polk County

255 North Broadway Avenue Bartow, Florida 33830

Jerry Hill, Esquire

Office of the State Attorney

255 North Broadway Avenue Bartow, Florida 33830

David A. Comras, Esquire

Law Offices of Comras and Comras, P.A. 1975 East Sunrise Boulevard, Suite 617 Fort Lauderdale, Florida 33304

Brian D. Toreky, Esquire State Attorney’s Office, 10th Judicial Circuit Post Office Box 9000-SA

Bartow, Florida 33831-9000

Docket for Case No: 11-000167VWI

Orders for Case No: 11-000167VWI