STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

vs.

Petitioner,

Case No. 18-2905PL

TAYLOR L. LANDRY,

Respondent.

/

RECOMMENDED ORDER

On July 31, 2018, Administrative Law Judge Robert J. Telfer, III, of the Florida Division of Administrative Hearings (Division) conducted a duly-noticed hearing by video teleconference in Tallahassee and Panama City Beach, Florida.

APPEARANCES

For Petitioner: Ray Anthony Shackelford, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Taylor L. Landry, pro se

(Address of Record) STATEMENT OF THE ISSUES

Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida

Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(a); and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On November 14, 2017, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner or the Commission), filed an Administrative Complaint against Respondent, Taylor Landry, charging him with violating sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(a).

The factual basis for the charge is that Respondent allegedly, while in a position of familial or custodial authority of a minor child more than 12 years old and less than 18 years old, solicited to engage or engaged in sexual battery with that minor child.

Respondent timely filed an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes. On June 7, 2018, Petitioner forwarded the case to the Division for the assignment of an administrative law judge.

On June 18, 2018, the previous administrative law judge assigned to this case noticed the case for hearing on July 31, 2018. On July 27, 2018, this case was transferred to the undersigned administrative law judge. On July 31, 2018, the case proceeded as scheduled. Petitioner presented the testimony of Monica Lange (via telephone) and Jason Cook, and Petitioner’s

Exhibits 1 through 4 were admitted into evidence with no objection.

Petitioner’s Exhibit 3 is a video interview of the minor child conducted by Ms. Lange. Petitioner’s Exhibit 4 consists of the audio recordings of the depositions of Jessica Emanuel and the minor child’s mother, conducted by an assistant state attorney in Respondent’s criminal case in Florida’s Fourteenth Judicial Circuit, in and for Washington County, involving the same alleged conduct, styled State of Florida v. Taylor Landry, Case No. 2015-CF-00316 (the criminal case). Both exhibits are hearsay. Petitioner did not request that the undersigned accept these exhibits under applicable hearsay exceptions. While hearsay is admissible in administrative proceedings, hearsay is not sufficient in itself to support a finding unless it would be admissible over objection in a civil proceeding. § 120.57(1)(c), Fla. Stat.; W.M. v. Dep’t of HRS, 553 So. 2d 274, 276 (Fla. 1st

DCA 1989). The undersigned considered Petitioner’s Exhibit 3 in making a recommendation as this exhibit supplemented or explained other admissible evidence presented during the final hearing.

The undersigned did not consider Exhibit 4.1/

The undersigned admitted and considered Petitioner’s Exhibit 1, the audio recording of the Washington County Sheriff Office’s interview of Landry, because Landry testified at the final hearing, was subject to cross-examination concerning the

interview, and the statements provided during the interview were inconsistent with Landry’s testimony at the final hearing. See

§ 90.801(2), Fla. Stat. Additionally, Exhibit 1 is admissible under the exception to the hearsay rule concerning admissions. See § 90.803(18), Fla. Stat.

Respondent testified on his own behalf and offered no exhibits. At the conclusion of Respondent’s presentation, the undersigned orally pronounced that Respondent would have seven days to provide evidence concerning the disposition of the criminal case, and that Petitioner, if it wished, could request to reconvene the proceeding based on any such evidence received. The undersigned entered an Order Recessing Hearing on August 2, 2018, that memorialized this pronouncement.

Thereafter, Respondent timely provided the following documents from the criminal case: (1) a subpoena for telephonic deposition of the minor victim, dated April 25, 2017, which reflected that law enforcement could not find the minor victim;

1. Defendant’s Motion for Sanctions and Motion to Dismiss Charges, dated May 17, 2017; and (3) Order Dismissing Charges, dated May 30, 2017. Petitioner, on August 8, 2018, filed its Response to Order Recessing Hearing, stating that it received Respondent’s documents, and that it did not wish to produce any witnesses or evidence in rebuttal. Based on Petitioner’s response, the undersigned admitted into evidence Respondent’s

   
   

   documents, which are hereby designated as Respondent’s Composite Exhibit 1, and on August 10, 2018, entered an Order Closing Hearing Record.

   The one-volume transcript of the hearing was filed with the Division on September 5, 2018. Petitioner timely filed a Proposed Recommended Order on September 12, 2018, and Respondent timely filed a Proposed Recommended Order on September 13, 2018.

   All references are to the 2015 codification of the Florida Statutes unless otherwise indicated.

   FINDINGS OF FACT

   
   

   1. Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 320518 to Respondent on December 15, 2014.

   2. The Florida Department of Corrections employed Respondent between July 1 and September 30, 2015.

   3. Between July 1 and September 30, 2015, the minor child, who was related to Respondent by marriage, resided with Respondent at his residence.

   4. Between July 1 and September 30, 2015, the minor child was 12 years of age or older, but younger than 18 years of age.

   5. The minor child’s parents each executed documents evidencing their intent that Respondent’s wife, Jessica Emanuel, act as guardian of the minor child. These documents indicated that Ms. Emanuel could enroll the minor child in school, make

      
      

      health care decisions, and make other decisions concerning the minor child’s general welfare.

   6. In October 2015, Monica Lange, a case coordinator for the Child Protection Team in the Children’s Advocacy Center, received a referral from the Department of Children and Families in Charlotte County, Florida, concerning the minor child.

      Ms. Lange testified that she conducted a video interview of the minor child on October 19, 2015, in Fort Myers, Florida (the CPT interview).

   7. Ms. Lange credibly testified that when she interviewed the minor victim, the minor victim (who was 17 years old at the time of the interview) did not appear to be impaired, appeared to have the skill set to answer the questions asked, and understood everything that Ms. Lange asked. Ms. Lange also credibly testified that the minor victim understood the concept of being truthful, and was responsive to the questions Ms. Lange asked.

   8. The CPT interview revealed the following recollections of the minor victim:

      1. Shortly after the minor victim (who was then 16 years old) began living with Respondent and Jessica Emanuel, Respondent and the minor child began consuming alcohol together and engaging in conversations of a sexual nature;

         
         

      2. Respondent and the minor child thereafter engaged in sexual activity over 30 times in Respondent’s house and truck;

         
         

      3. The minor child described many of these incidents of sexual activity with detail as to time and location;

         
         

      4. The minor child stated that Respondent and the minor child engaged in sexual activity with and without a condom; and

         
         

      5. The minor child stated that the minor child was exposed to a sexually transmitted disease during this time period.

         
         

   9. After the CPT interview, Ms. Lange contacted Jason Cook, an investigator with the Washington County Sheriff’s Office.

   10. Mr. Cook testified that he reviewed the CPT interview, and then called and scheduled appointments with Jessica Emanuel and the minor child’s mother.

   11. Based on those interviews, Mr. Cook contacted Respondent, and, on November 2, 2015, interviewed Respondent at Mr. Cook’s office for approximately two hours and 15 minutes. Mr. Cook testified that he provided Respondent with a Miranda warning, informed Respondent that he was not being charged with a crime at that time, and that Respondent was free to leave the interview at any point. The undersigned’s review of the interview confirms Mr. Cook’s testimony.

   12. Mr. Cook testified that for the first 40 to 50 minutes of the interview, Respondent’s demeanor was nervous, guarded, and defensive. However, according to Mr. Cook, Respondent later seemed to open up and spoke more freely.2/

       
       

   13. Throughout the interview, Respondent stated that he and his wife provided the basic necessities to the minor child, including room and board. Additionally, Respondent stated that the minor child attended school.

   14. During the first 40 to 50 minutes of the interview, Mr. Cook testified that when he asked Respondent whether he engaged in sexual activity with the minor child, Respondent stated many times that he was not sure or could not remember.

   15. The undersigned reviewed Mr. Cook’s interview of Respondent. During the first approximately 40 minutes of the interview, when Mr. Cook asked Respondent whether he engaged in sexual activities with the minor child, Respondent provided various non-denials of such activity, stating, at various points:

       1. he had psychological issues, so he could not give Mr. Cook an honest answer; (b) he did not feel that he had sexual activities with the minor child; (c) he did not know if he had sexual activities with the minor child; (d) he could not believe engaging in sexual activities with the minor child was something he would do; and (e) he did not know if he engaged in sexual activities with the minor child, but it was a possibility.

   16. After approximately 40 minutes of the interview,

       
       

       Mr. Cook and Respondent discussed various disciplinary measures Respondent took with the minor child. After this discussion, Respondent stated that he engaged in sexual activities with the

       
       

       minor child. Respondent stated that these allegations were true, and that he was “tired” of trying to remember or think about this subject.

   17. Respondent further stated that he did not engage in sexual activities with the minor child more than 30 times, as the minor child reported. Instead, he stated that he engaged in sexual activities with the minor child between 10 and 20 times.

   18. Respondent also stated that the local health department prescribed him medication for either an infection or a sexually transmitted disease, but he could not recall which.

   19. At multiple times during the interview, Respondent vaguely referred to mental health issues he felt he suffered, including “bipolar schizophrenia.” When pressed by Mr. Cook, Respondent stated that he had not sought treatment for any mental health issues and had essentially self-diagnosed these issues. Respondent has not otherwise presented any evidence of such mental health issues in this proceeding and recanted this self- diagnosis at the final hearing.

   20. At the final hearing, Respondent testified that he did not engage in any sexual activity with the minor child. Respondent further stated that if he had engaged in sexual activity with the minor child, he would have been tried and convicted. Respondent testified that the state attorney dropped the charges against him in the criminal case.

       
       

   21. At the final hearing, Respondent stated that Mr. Cook did not force him to make any statements or admissions during the November 2, 2015, interview.

   22. Respondent provided various documents concerning the criminal case demonstrating that the State dismissed criminal charges concerning the same conduct alleged in this proceeding. The undersigned notes that the “Order Dismissing Charges” in the criminal case found that “the State will be unable to prove the charges against the Defendant without the testimony of the alleged victim, and the alleged victim’s testimony has been excluded by the Court because the alleged victim has repeatedly failed to appear for her deposition . . . .” The undersigned also notes that a Subpoena for Telephonic Deposition to be served on the minor victim indicates that the Charlotte County Sheriff’s Office was unable to serve the subpoena, stating, “THIS SUBJECT MOVED OUT IN MARCH, SHE IS HOMELESS LIVING IN THE WOODS SOMEWHERE, NO CONTACT INFORMATION AVAILABLE, WHEREABOUTS UNKNOWN.” The undersigned has considered evidence of the disposition of Respondent’s criminal case in this proceeding.

   23. Despite the disposition of the criminal case against Respondent, the undersigned finds that Mr. Cook’s testimony, and the November 2, 2015, interview of Respondent in which Respondent ultimately admits to engaging in sexual activity with the minor child, corroborates the minor victim’s statements in the

       
       

       interview with Ms. Lange that the minor victim engaged in sexual activity with Respondent while Respondent was in a position of familial or custodial authority.

   24. The undersigned finds the testimony of Mr. Cook and Ms. Lange to be credible. The undersigned further finds the minor victim’s statements in the CPT interview to be clear, precise, and distinctly remembered. The undersigned further finds that Respondent ultimately admitted to engaging in sexual conduct with the minor victim, as alleged, and that Mr. Cook did not force or coerce Respondent to provide this admission.

       CONCLUSIONS OF LAW

       
       

   25. The Division has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569 and 120.57(1).

   26. This is a proceeding to discipline Respondent’s certification as a corrections officer, in which Petitioner is seeking revocation. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d

       292 (Fla. 1987).

       
       

   27. Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to

       
       

       the exclusion of a reasonable doubt.’” In re Graziano, 696 So.

       
       

       2d 744, 753 (Fla. 1997). The Florida Supreme Court further enunciated the standard:

       This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

       
       

       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 Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

       
       

       Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 989 (Fla. 1st DCA 1991).

   28. The factual allegations in the Administrative Complaint to support the imposition of discipline are that Respondent unlawfully, while in a position of familial or custodial authority to a minor child older than 12 and younger than 18 years of age, solicited or engaged in sexual battery with that minor child.

       
       

   29. Based on this factual premise, the Administrative Complaint charges Respondent with violating section 794.011(8)(b), Florida Statutes, or any lesser included offenses; section 943.1395(7); and rule 11B-27.0011(4)(a), for failure to maintain the qualifications established in section 943.13(7), which require that a correctional officer in the State of Florida have good moral character.

   30. Section 794.011(1)(h) defines sexual battery as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act for a bona fide medical purpose.” Section 794.011(8)(b), which is the charge contained in the Administrative Complaint, provides:

       (8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:

       
       

       * * *

       
       

       1. Engages in any act with that person while the person is 12 years of age or older but younger than 18 years of age which constitutes sexual battery under

       paragraph 1(h) commits a felony of the first degree, punishable by a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

       
       

   31. In Coleman v. State, 485 So. 2d 1342, 1345 (Fla. 1st

       
       

       DCA 1986), the Court provided the following definition of “familial or custodial authority”:

       [W]e regard the legislature to have intended, but its use of the words, “familial or custodial,” to include within the statute’s proscriptions any person maintaining a close relationship with the children of the ages specified in the statute, and who lived in the same household with such children.

       
       

   32. Section 943.13(7) provides:

       
       

       On or after October 1, 1984, any person employed as a full-time, part-time, or auxiliary law enforcement officer or correctional officer . . . shall:

       
       

       * * *

       
       

       (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

       
       

   33. Section 943.1395(7) provides:

       
       

       (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which

       has been adopted by rule and is established as a statewide standard, as required by

       s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

       
       

       1. Revocation of certification.

          
          

       2. Suspension of certification for a period not to exceed 2 years.

          
          

       3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the

          
          

          commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

          
          

       4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

          
          

       5. Issuance of a reprimand.

       
       

   34. The Commission has defined the failure to maintain “good moral character” for purposes of section 943.1395(7) in rule 11B-27.0011(4) as:

       1. For the purposes of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

          
          

          1. The perpetration by an officer of any act that would constitute any felony offense, whether criminally prosecuted or not.

       
       

   35. Clear and convincing evidence established that Respondent committed misconduct that, under applicable statutes, administrative rules, and precedent, constitutes a violation of section 943.13(7), as defined in rule 11B-27.0011(4).

   36. Clear and convincing evidence established that Respondent, unlawfully, while in a position of familial or custodial authority to a minor child older than 12 and younger than 18 years of age, solicited or engaged in sexual battery with that minor child. Such conduct constitutes “the perpetration by

       
       

       an officer of any act that would constitute any felony offense, whether criminally prosecuted or not[,]” and is a violation of good moral character under rule 11B-27.0011(4).

   37. Rule 11B-27.005(5)(a) provides that when an officer is found to have perpetrated an act that would constitute any felony offense, pursuant to rule 11B-27.0011(4)(a), but there was not a violation of section 943.13(4) (which concerns convictions of certain crimes), the Commission shall impose a penalty “absent mitigating circumstances” under a recommended penalty range. Pursuant to rule 11B-27.005(5)(a)10., the Commission recommends revocation of certification for “[s]exual battery, unlawful sexual activity with a minor (Sections 794.011, 794.05, F.S.).”

   38. The undersigned has considered Respondent’s arguments concerning mitigation, including his overcoming the criminal charges to resume his career and rebuild his character, and how revocation would affect him, a single parent, and his ability to provide for his children. However, given the serious nature of the violation in his matter, the undersigned recommends, consistent with rule 11B-27.005(5)(a), that revocation is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that Respondent Taylor L. Landry has failed to maintain the qualifications for good moral character for a correctional officer, established under section 943.13(7), and defined in rule 11B-27.0011(4)(a). It is further RECOMMENDED that Petitioner revoke Respondent Taylor L. Landry’s Corrections Certification No. 320518.

DONE AND ENTERED this 24th day of September, 2018, in Tallahassee, Leon County, Florida.

S

ROBERT J. TELFER III

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 24th day of September, 2018

ENDNOTES

1/ At the final hearing, the undersigned provided Petitioner the opportunity to attempt to introduce Exhibit 3 into evidence pursuant to the “statement of child victim” hearsay exception found in section 90.803(23), Florida Statutes. Petitioner declined. However, to be explained further in this Recommended

Order, other non-hearsay evidence presented at the final hearing corroborated the minor victim’s statement; thus, the undersigned considered Exhibit 3 in this matter. However, with respect to Exhibit 4, the undersigned did not consider the audio recordings of the depositions of Jessica Landry and the minor child’s mother, because the evidence presented at the final hearing did not corroborate the out-of-court statements of these deponents. At the final hearing, Petitioner did not attempt to introduce these depositions pursuant to an applicable hearsay exception.

2/ Mr. Cook testified that based on his extensive training, including courses at the John Reid School and his certification as a Computer Voice Stress Analyzer (CVSA) examiner, it was his opinion that Respondent held back information during the first 40 to 50 minutes of the interview.

COPIES FURNISHED:

Taylor L. Landry (Address of Record)

Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 (eServed)

Dean Register, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Jason Jones, General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 18-002905PL

Orders for Case No: 18-002905PL