STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 10-10590PL

)

JASON B. STOREY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Edward T. Bauer, an Administrative Law Judge of the Division of Administrative Hearings, on March 3 and 4, 2011, by video teleconference at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Kerra A. Smith, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: James C. Casey, Esquire

Law Offices of Slesnick & Casey, LLP 2701 Ponce De Leon Boulevard, Suite 200 Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On September 14, 2010, Petitioner, Criminal Justice Standards and Training Commission, filed an Administrative Complaint alleging that Respondent violated section 943.1395(7), Florida Statutes, by failing to maintain good moral character.

Respondent timely requested a formal hearing to contest the allegations, and, on December 13, 2010, the matter was referred to the Division of Administrative Hearings.

On January 18, 2011, Petitioner filed a Motion for Leave to Amend Administrative Complaint, which Respondent did not oppose. The undersigned granted Petitioner's motion the following day.

Subsequently, on January 24, 2011, Petitioner filed an Amended Administrative Complaint, which alleged that Respondent had failed to maintain good moral character in three respects: (a) misusing his position as a law enforcement officer by querying individuals, for personal reasons, through the Driver and Vehicle Information Database; (b) committing a battery; and (c) misusing his position as a law enforcement officer by requesting that a female motorist display an intimate part of her body.

Prior to the final hearing, the parties filed a joint Prehearing Stipulation that contained certain admitted facts. To the extent relevant, those facts have been included in this Recommended Order.

During the final hearing, Petitioner presented the testimony of Diana Argudelo, Erin Weigel, Stephanie Redding, and Miguel Guzman. Petitioner's Exhibits 1A, 1C, 2, 3A, 3B, and 3F were received into evidence. Respondent testified on his own behalf and called eight witnesses: James Crawley, Rafael Ireheta, Katherine Casella, Fadia Baradhi, Royce Hanshew, Roy Griffin, Preston Chavous, and Garfield Johnson. Respondent also introduced three composite exhibits into evidence, numbered 1-3.

The two-volume transcript of the final hearing was filed with DOAH on March 23, 2011. A corrected copy of volume one of the transcript was filed on April 11, 2011. Following an unopposed request by Respondent, the undersigned entered an order extending the deadline to file proposed recommended orders to April 25, 2011. Both parties timely filed proposed recommended orders, which the undersigned has considered.

Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged misconduct.

FINDINGS OF FACT

1. The Parties

   
   

   1. Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers.

   2. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol.

2. Events of April 18, 2008

   
   

   1. At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit.

   2. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy.

      
      

   3. Eventually, Respondent requested, and received, Ms.

      
      

      Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser.

   4. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation.

   5. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts.

   6. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact.

   7. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms.

      
      

      Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact.

   8. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning.

   9. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1

3. Events of July 28, 2006

   
   

   1. During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions.

   2. While stopped at a red light near the interstate, Ms.

      
      

      Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms.

      Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance.

   3. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner

      
      

      that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle.

   4. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did.

   5. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see."

      Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts."

   6. In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the

      
      

      hope that Respondent would keep his word and allow her to drive away.

   7. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away.

   8. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3

4. Other Allegations

   
   

   1. As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions.

   2. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being

      
      

      utilized for legitimate law enforcement or criminal justice purposes.

   3. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID.

5. Ultimate Findings

1. The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character.

2. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character.

3. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction

      
      

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to section 120.57(1), Florida Statutes.

   1. The Burden and Standard of Proof

      
      

5. This is a disciplinary proceeding against Respondent's license. Accordingly, Petitioner must prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v. Osborne Sterne, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987).

6. Clear and convincing evidence:

   
   

   [R]equires 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.

   
   

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

   
   

   1. The Charge Against Respondent

      
      

7. The Administrative Complaint alleges that Respondent failed to maintain good moral character as required by section

   
   

   943.13, Florida Statutes, and thereby violated section 943.1395(7), Florida Statutes, which reads, in relevant part:

   (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 . . . .

      
      

   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.

   
   

8. Petitioner has defined good moral character in Florida Administrative Code Rule 11B-27.0011(4), the relevant portions of which provide:

   (4) 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 an act that would constitute any of the

      
      

      following misdemeanor or criminal offenses whether criminally prosecuted or not:

      
      

      1. Sections . . . 784.03 [battery]. . . , F.S.

         
         

         * * *

         
         

   2. The perpetration by an officer of acts or conduct that constitute the following offenses:

   
   

   * * *

   
   

   1. Misuse of official position, defined by Section 112.313(6), F.S.

   
   

   (Emphasis added).

   
   

9. Relying upon the above-quoted definition, Petitioner alleges that Respondent failed to maintain good moral character by committing a battery against Ms. Agudelo, or alternatively, by misusing his official position. Both contentions are discussed separately below.

   1. Battery - Section 784.03

      
      

10. Section 784.03(1)(a)1, Florida Statutes, defines battery as occurring when a person "actually and intentionally touches or strikes another person against the will of the other."

11. Based upon the findings of fact herein, Petitioner has established by clear and convincing evidence that Respondent committed a battery upon Ms. Agudelo by intentionally touching her buttocks and breasts against her will. See Rosen v. State,

    
    

    940 So. 2d 1155, 1161 (Fla. 5th DCA 2006)(affirming convictions for battery where defendant touched the buttocks of one victim and the breasts of another; "The State presented evidence that Rosen intentionally touched A.R. and K.M without their consent; therefore, competent substantial evidence supports the jury's verdicts"). Accordingly, Respondent is guilty of failing to maintain good moral character, in violation of section 943.1395(7).

    1. Misuse of Official Position

       
       

12. Petitioner also contends that Respondent failed to maintain good moral character by misusing his position as a law enforcement officer, contrary to section 112.313(6), Florida Statutes, which provides, in relevant part:

    (6) MISUSE OF PUBLIC POSITION.—No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.

    
    

    (Emphasis added).

    
    

13. Pursuant to the foregoing statutory language, Petitioner must demonstrate by clear and convincing evidence that Respondent: (1) used or attempted to use his official position; (2) to secure a special privilege, benefit or exemption for himself or another; and (3) acted corruptly in

    
    

    doing so. See Siplin v. Comm'n on Ethics, 36 Fla. L. Weekly D416, 2011 Fla. App. LEXIS 2292 (Fla. 5th DCA Feb. 25, 2011).

14. Petitioner argues, and the undersigned agrees, that Respondent's encounters with Ms. Agudelo and Ms. Weigel——during which Respondent, among other acts, touched Ms. Argudelo on her breasts and buttocks and asked to see Ms. Weigel's breasts—— constitute misuses of his position, as all three statutory elements have been satisfied.

15. With respect to the first and second prongs, there is clear and convincing evidence that Respondent, while in uniform and on routine patrol, used his position and authority as a state trooper to touch Ms. Agudelo on intimate portions of her body during a traffic stop. The evidence also demonstrates that Respondent blocked Ms. Weigel's vehicle in a parking lot with his patrol cruiser (during what should have been a consensual citizen encounter) and attempted to use his authority to view her breasts. Respondent's misbehavior was clearly intended to result in some degree of sexual gratification, which constitutes a "benefit" within the meaning of section 112.313(6). See Garner v. State of Fla. Comm'n on Ethics, 439 So. 2d 894, 895-96 (Fla. 2d DCA 1983)(holding public official's acts of sexual harassment were a "benefit" pursuant to section 112.313(6)); In Re: Lawrence R. Hawkins, Case No. 94-4715, 1995 Fla. Div. Adm. Hear. LEXIS 4362 (Fla. DOAH Sept. 28, 1995)(finding that sexual

    
    

    comments constituted a benefit pursuant to section 112.313(6); "Just as any person who makes obscene telephone calls gets sexual gratification from just talking, the only conclusion that can be drawn from Hawkins' sexual comments and lewd actions is that he was doing it for his own sexual gratification"); In Re: Alfred Welch, Case No. 91-4386, 1991 Fla. Div. Adm. Hear. LEXIS 6915 (Fla. DOAH Dec. 10, 1991)(finding violation of section 112.313(6) where official, who made unwanted advances to several female employees, used his position to secure the benefit of "sexual gratification").

16. Turning to the third element, Petitioner was required to prove that Respondent acted "corruptly," in that his actions were "done with a wrongful intent and for the purpose of obtaining . . . any benefit resulting from some act . . . of a public servant which is inconsistent with the proper performances of his or her public duties." § 112.312(9), Fla. Stat.; Garner, 439 So. 2d at 895. Petitioner has met its burden, as the evidence demonstrates that Respondent's sexual misconduct toward Ms. Agudelo and Ms. Weigel, which was plainly inconsistent with his official duties, was done with a wrongful intent and for his own sexual gratification.

17. As all three elements have been satisfied, Respondent misused his official position, contrary to section 112.313(6),

    
    

    and is therefore guilty of failing to maintain good moral character.5

    1. The Appropriate Penalty

    
    

18. The undersigned must next determine what penalty is warranted. Pursuant to Florida Administrative Code Rule 11B- 27.005(5)(b)2 and (5)(c)3, the disciplinary guidelines call for a suspension of Respondent's law enforcement certification.

19. However, Florida Administrative Code Rule 11B- 27.005(6) authorizes a deviation from the penalty guidelines upon a showing of one or more of the following aggravating or mitigating circumstances:

    1. Aggravating circumstances:

       
       

       1. Whether the certified officer used official authority to facilitate the misconduct.

          
          

       2. Whether the misconduct was committed while the certified officer was performing other duties.

          
          

       3. The number of violations found by the Commission.

          
          

       4. The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.

          
          

       5. The severity of the misconduct.

          
          

       6. The danger to the public.

          
          

       7. The actual damage, physical or otherwise, caused by the misconduct.

          
          

       8. The lack of deterrent effect of the penalty imposed by the employing agency.

          
          

       9. The pecuniary benefit or self-gain to the officer realized by the misconduct.

          
          

       10. Whether the misconduct was motivated by unlawful discrimination.

           
           

       11. Any behavior constituting "domestic violence" defined by Section 741.28(1), F.S.

           
           

       12. Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.

       
       

    2. Mitigating circumstances:

       
       

       1. The officer’s employment status in a position requiring Commission certification at the time of the final hearing before the Commission.

          
          

       2. The recommendations of character or employment references.

          
          

       3. The lack of severity of the misconduct.

          
          

       4. The length of time the officer has been certified by the Commission.

          
          

       5. Any effort of rehabilitation by the certified officer.

          
          

       6. The effect of disciplinary or remedial action taken by the employing agency or recommendations of employing agency administrator.

          
          

       7. The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.

          
          

       8. Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.

       
       

       (Emphasis added).

       
       

20. Petitioner contends that the penalty should be enhanced to revocation based upon a number of aggravating circumstances, which include: Respondent used his official position to facilitate the misconduct in this matter; and that the misconduct was severe. See Fla. Admin. Code R. 11B- 27.005(6)(a)1 & (6)(a)5. The undersigned agrees that Respondent's acts of battery against Ms. Agudelo implicate both

    aggravating factors. See Crim. Just. Stds. & Training Comm'n v.

    
    

    Jones, Case No. 06-2091, 2006 Fla. Div. Adm. Hear LEXIS 495 (Fla. DOAH Oct. 17, 2006)(concluding that battery, which involved the unwanted touching of a breast, constituted severe misconduct for the purposes of aggravation).

21. Respondent, on the other hand, argues in his Proposed Recommended Order that in the event that a finding of guilt is returned, mitigating circumstances exist——namely, the favorable character and employment reference evidence——that support a penalty below the guidelines. See Fla. Admin. Code R. 11B- 27.005(6)(b)2.

22. The undersigned concludes that either of the aggravating factors identified above, standing alone, far outweighs Respondent's mitigating character and employment

references. Under the circumstances presented, revocation of Respondent's law enforcement certification is the only appropriate penalty. See Crim. Just. Stds. & Training Comm'n v. Hingledorff, Case No. 85-3588, 1986 Fla. Div. Adm. Hear. LEXIS 4111 (Fla. DOAH June 16, 1986)(recommending revocation of law enforcement certificate where evidence demonstrated that highway patrol officer inappropriately touched the breasts of one female motorist, as well as the breasts, buttocks, and crotch of another); Crim. Just. Stds. & Training Comm'n v. Morgan, Case

No. 85-1533, 1985 Fla. Div. Adm. Hear. LEXIS 4937 (Fla. DOAH

Aug. 29, 1985)(recommending revocation of certification based upon highway patrolman's lewd comments to a stranded female motorist).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer.

DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2011.

ENDNOTES

1 In an attempt to impeach Ms. Agudelo, Respondent called Ms. Fadia Baradhi, who previously supervised Ms. Agudelo at a retail store. During Ms. Baradhi's direct examination, counsel for Respondent sought to elicit testimony that Ms. Agudelo has a poor reputation for truthfulness in the community. The undersigned disallowed the testimony, however, as Ms. Baradhi's knowledge of Ms. Agudelo's truthfulness was limited to several acts of misconduct——e.g., taking credit for sales made by other employees while ringing up transactions and allowing male customers to use credit cards associated with female names——Ms. Agudelo supposedly committed at Ms. Baradhi's retail establishment, which employed approximately 4 workers. See Morrison v. State, 818 So. 2d 432, 451 (Fla. 2002)(holding trial court did not abuse its discretion by prohibiting reputation testimony of witness Brown where the proffer indicated that the witness "really did not know Brown's reputation in the community, and she was testifying only about a specific act of lying with which [she] was personally familiar"). Accordingly, Respondent failed to lay the necessary foundation that Ms. Baradhi possessed broad-based knowledge of Ms. Agudelo's reputation for truthfulness in the community. See Lott v. State, 695 So. 2d 1239, 1242 (Fla. 1997)("A foundation must

first be laid to establish that the person testifying as to the witness's reputation is aware of the witness's reputation for truthfulness in the community. Reputation evidence must be broad-based and should not be predicated on 'mere personal opinion, fleeting encounters, or rumor'")(emphasis added); Larzelere v. State, 676 So. 2d 394, 399 (Fla. 1996) ("Essentially, it must be established that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment"); Charles W. Ehrhardt, Ehrhardt's Florida Evidence § 609.1, p. 570 (2010 ed.)("Reputation is the composite description of what people in a substantial segment of a particular community have said or are saying about an individual")(emphasis added).

Even assuming that Ms. Baradhi's testimony could properly be considered, the undersigned would continue to credit Ms.

Agudelo's version of events, as there is no apparent motivation for Ms. Agudelo to fabricate her account. Indeed, Ms. Agudelo was allowed to leave the scene of the traffic stop, after being pulled over for speeding, without being issued a written citation or so much as a warning.

2 During the investigation, Ms. Weigel was questioned by Lieutenant Cataldo of the Florida Highway Patrol. Also present during the interview was Trooper James Crawley, who was called by Respondent during the final hearing in this matter. Although Trooper Crawley did not witness the encounter between Respondent and Ms. Weigiel, Respondent attempted to elicit Trooper Crawley's opinion regarding the veracity of Ms. Weigel's allegation. The undersigned refused to consider this portion of Trooper Crawley's testimony, however, as it is well-settled that "one witness cannot express an opinion regarding the credibility of another witness." Charles W. Ehrhardt, Ehrhardt's Florida Evidence § 609.2, p. 575 (2010 ed.); Tingle v. State, 536 So. 2d 202, 205 (Fla. 1988)(error to permit expert to testify that she believed child abuse victim was credible and was telling the truth); Olsen v. State, 778 So. 2d 422, 423 (Fla. 5th DCA 2001) ("The prosecutor first attempted to qualify the officer as an expert who had the ability to evaluate the veracity of crime victims and then asked the officer whether she believed the store manager's version of the facts. Defense counsel objected and attempted to educate the prosecutor on this subject; however, the prosecutor was bent on pursuing this improper line of questioning. The trial court erred by allowing the prosecutor and the officer to continue . . . . We find that the

police officer's testimony was an improper comment on the reliability of the alleged victim's version of the facts and that the trial court's failure to sustain the defense's objection to the police officer's testimony constitutes harmful error"); Page v. State, 733 So. 2d 1079, 1081 (Fla. 4th DCA 1999)(holding lower court erred by allowing police officer to express opinion concerning the credibility of a confidential informant who was a state witness); Johnson v. State, 682 So. 2d 215, 216 (Fla. 5th DCA 1996)(error to allow witness to express opinion concerning the credibility of a witness who had previously testified).

3 Ms. Weigel credibly testified that she is unacquainted with Ms. Agudelo.

4 See Prehearing Stipulation at pp. 2 and 16.

5 As noted previously, the Petitioner has alternatively alleged that Respondent misused his official position by accessing DAVID for personal reasons. However, the evidence failed to demonstrate that Respondent acted corruptly——i.e., that his actions were "done with a wrongful intent and for the purpose of obtaining . . . any benefit resulting from some act . . . which is inconsistent with the proper performances of his or her public duties." § 112.312(9), Fla. Stat. (Emphasis added); see also Siplin v. Comm'n on Ethics, 36 Fla. L. Weekly D416, 2011 Fla. App. LEXIS 2292 (Fla. 5th DCA Feb. 25, 2011)(describing elements of misuse of official position).

COPIES FURNISHED:

Kerra A. Smith, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

James C. Casey, Esquire

Law Offices of Slesnick & Casey, LLP 2701 Ponce De Leon Boulevard, Suite 200 Coral Gables, Florida 33134

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 10-010590PL

Orders for Case No: 10-010590PL