County Criminal Court: CRIMINAL PROCEDURE — Jurors — Trial court did not abuse its discretion in denying motion for an additional peremptory challenge during voir dire. Judgment and sentence affirmed. Ashlie Coi Milano v. State of Florida, No. CRC-10-07644-CFAWS (Fla. 6th Cir. App. Ct. February 3, 2012).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

ASHLIE COI MILANO,

Appellant,

UCN: 512010CF007644A000WS

v. Case No: CRC10-07644-CFAWS

Lower No: 10-04275-MMAWA

STATE OF FLORIDA,

Appellee.

_____________________________/

Appeal from Pasco County Court

County Judge Debra Roberts

Charles A. Greene, Jr., Esq.

for Appellant

Christopher C. Dyer, A.S.A.

for Appellee

ORDER AND OPINION

Appellant raises two related issues on appeal: (1) whether the trial court erred in denying Appellant’s motion for an additional peremptory challenge during voir dire and (2) whether the trial court erred in denying Appellant’s motion in limine whereby evidence of Appellant’s transgender status was admitted. Since both arguments lack merit, this Court shall affirm the trial court’s decisions as set forth below.

FACTUAL BACKGROUND

On July 22, 2010, Appellant was charged with misdemeanor prostitution for events occurring on June 1, 2010 with Christopher Owens, contrary to § 796.07(2)(e). Prior to trial, Appellant argued a motion in limine seeking to exclude any and all reference by the State and its witnesses referring to Appellant as male or transsexual, rather than female. At the hearing on the motion in limine held before Judge Roberts, on November 5, 2010, defense counsel pointed that the trial court was aware that Appellant is sexually transgendered, as she has been before the court as Brandon Milano. Appellant’s legal name is now Ashlie Milano. Appellant sought to prohibit anyone from testifying that she was a man. Defense counsel argued that it was more prejudicial than probative. As far as Appellant is concerned, her gender is a woman and she is Ashlie. The State countered that Appellant was still a man and that would only be setting the State up for mistrial.

The trial court responded that Appellant is legally a man. The trial court would have to refer to Appellant as a man unless defense counsel could show that Appellant had some kind of operation that would make it different. The trial court informed the State that Appellant could be called transgendered or Ashlie Milano. The trial court noted that this is not the first time this issue has arisen in her courtroom; all that needs to be done is to refer to the person by name.

Defense counsel explained that part of the reason they were seeking this motion in limine was because when the officers informed the person receiving the prostitution act that she was a man, they were laughing at him, and he was very upset about it. The trial court responded that it appeared that the act was all intertwined with Appellant’s gender. The State argued that it should not be prohibited from introducing Appellant’s intentional acts of dressing up and the other steps taken.

The trial court responded that it really did not matter whether Appellant intentionally dressed as a woman or not. The only issue is whether or not the elements occurred, not whether Appellant is transgender. In denying the motion in limine, the trial court furthered, “It is what it is. I mean Ashlie needs to understand it is what it is. It’s going to come up, but it’s not going to be a focus of this trial. We’re not going to dwell on it. And I want y’all to understand that right up front, because the only issue is whether or not it was an act of prostitution or not. That’s the only issue.” Defense counsel requested a larger panel since she would have to voir dire them on people who are prejudice regarding transgender, which was accepted by the trial court.

On November 8, 2010, prior to voir dire, the trial court reiterated that the State would not be restricted in how they refer to Appellant and that she did not want it to become an issue for anyone. Defense counsel verified that she would be able to question the jury about Appellant’s sexuality. The trial court asked whether Appellant has undergone any surgery. Defense counsel responded that Appellant has had surgery for breast enhancements and has had or was considering hormone therapy, but has not undergone the complete gender reassignment surgery. The trial court asked both sides to come up with a definition of transgender because she was unclear whether Appellant was just cross-dressing or transgender. Defense counsel stated that according to Webster’s Medical Dictionary, transgender is “a consistently strong desire to change one’s anatomical gender.” The State added that the United States Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994) defined a transsexual as one who has a rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex. Defense counsel’s position was that Appellant was transsexual, while the State’s position was that Appellant was a male, or a transsexual male. The State did not object to the defense counsel’s conclusion that Appellant was transsexual or transgender. Defense counsel stated that it would be using the term transsexual. The trial court clarified that the State would not be precluded from calling Appellant, “Mr. Ashlie.”

At the November 8, 2010 trial, Officer Daniel Charles Durivou with the New Port Richey Police Department for eight years testified that he was on patrol on June 1, 2010. Officer Durivou was performing an area check of the K-Mart parking lot at 12:33 a.m. when he observed a vehicle around the backside of the K-Mart building. He saw two people inside; the passenger was in the driver’s lap with the passenger’s head moving up and down. Officer Durivou’s headlights were on, and he could see through the passenger side window of the subject’s vehicle. The head movement was consistent with sexual activity. It is normal on U.S. 19 to have prostitution around that time.

Officer Durivou made contact with the driver and had him get out of the vehicle. Officer Durivou brought the driver to the back of the vehicle and asked him what was going on. The driver was identified as Christopher Owens from his driver’s license. Officer Durivou could see that Mr. Owens still had an erection although he was still wearing shorts.

After speaking with Mr. Owens, Officer Durivou spoke to the passenger, Appellant. Officer Durivou knew Appellant from prior encounters and identified him from his driver’s license. Officer Durivou asked Appellant to exit the vehicle. He asked Appellant what was happening, but he would not cooperate. Officer Durivou asked Appellant if he could search his purse, and he agreed. Officer Durivou found a condom wrapper, make-up, and a twenty dollar bill.

Officer Durivou returned to the driver and inquired whether he still had a condom on, and Mr. Owens reached into his open zipper and pulled one off. Mr. Owens tried to hand the condom to Officer Durivou, but he declined to take it. Officer Durivou asked Mr. Owens if he wanted to tell him what had happened, and he did. Mr. Owens also provided a written statement. Appellant was subsequently arrested. Officer Durivou assumed the twenty dollars came from Mr. Owens because he had stated that he went to the bank.

On cross-examination, Officer Durivou testified that Mr. Owens told him at first that he was giving Appellant a ride. Two other officers arrived at the scene, which is typical on a nighttime stop. Neither Mr. Owens nor Appellant behaved violently toward the officers. Officer Durivou recalled telling Mr. Owens that Appellant was a man right before he left, after Mr. Owens provided a written statement. Mr. Owens appeared surprised and a little angry. Mr. Owens put the condom on the ground. Officer Durivou was not going to touch it, so the condom was not put into evidence. Officer Durivou did not impound the condom wrapper or the twenty dollars.

On redirect, Officer Durivou testified that he left the money he found in the purse. He did not arrest Mr. Owens because it would be harder to make an arrest and prosecute him than Appellant. On recross-examination, Officer Durivou testified that it would be easier to prosecute Appellant based on the confession that Mr. Owens wrote.

Christopher Owens testified that he was returning home to Holiday from a barbeque with friends in Port Richey. He was travelling on U.S. 19 between Trouble Creek and State Road 54 when Mr. Owens saw Appellant waiving her hand in the air. Mr. Owens stopped because he thought Appellant needed a ride. He recognized Appellant from an acquaintance six months prior. The conversation went quickly from “hi,” “how are you,” to an offer for services. Appellant had offered to perform a sex act for $40. Mr. Owens told her that he did not have any cash on him and that he could not do $40. Mr. Owens counter-offered with $20, but that he would have to go to the bank. Although Appellant commented that he had to have more than that, Appellant nonetheless agreed to perform oral sex for $20.

At that point in the conversation, they were in a parking lot of a different bank. They went further north to get to the bank where Mr. Owens banks. He checked his balance and withdrew $20. Appellant directed him to a public shopping center parking lot, which Mr. Owens did not agree with, but went with it anyway. Mr. Owens thought it was a K-Mart parking lot. Mr. Owens gave Appellant the twenty dollar bill either when he came out of the bank or when Appellant went in her purse to get a condom out. Appellant took a condom out of her purse and opened it up. Mr. Owens “dropped [his] drawers right there;” and then, she put the condom on his penis. Appellant started the act, using her hands. Appellant’s mouth made contact with his penis. The act continued for about two to three minutes and was never finished before the police officer arrived. Mr. Owens explained that he was not too attracted to Appellant, so he was not very excited.

While Appellant was performing, out of nowhere, a light shone—the police officer had his light on. Mr. Owens told Appellant that he thought that they have been noticed. As the police officer started walking over to the car, Mr. Owens pulled his pants back up with the condom still on. The police officer asked what they were doing. Mr. Owens told the officer that he offered Appellant a ride and that they were parked there just talking. The officer separated them. Other squad cars arrived, and they went through his car. Mr. Owens was told that he needed to tell them the truth and cooperate, and then he did. When the police officers found an empty condom wrapper in Appellant’s possession, they asked Mr. Owens if he was still wearing a condom. Mr. Owens reached with his right hand into his private parts, removed the condom, and showed it to the officer. After that, “the cat was out of the bag,” so Mr. Owens was honest about everything. Mr. Owens provided a truthful written statement to the best of his knowledge from beginning to end. He told the officers that he withdrew $20 from the Wachovia ATM for oral sex because he did not want to spend more than that for a sex act. Mr. Owens was very much embarrassed. The police officer inquired whether Mr. Owens knew that Appellant was male. Mr. Owens responded that he did not know that, but believed the officers.

On cross-examination, Mr. Owens testified that he was drinking throughout the day, but ate a lot of food at the barbeque and was okay to drive home several hours later. Mr. Owens fully cooperated when he found out that Appellant was really a man. Mr. Owens was not charged with anything. He was told that in exchange for his statement and if he got a hold of someone to drive him home, Mr. Owens would not be charged with anything. On redirect, Mr. Owens testified that he came clean and told the officers everything when he showed them the condom.

After the State rested, the defense moved for a judgment of acquittal based on selective prosecution and the sufficiency of the evidence, which was denied. The jury found Appellant guilty as charged. The trial court sentenced Appellant to three months probation. A timely notice of appeal was filed on November 15, 2010.

LAW AND ANALYSIS

Appellant first argues that the trial court abused its discretion in denying the defense motion for an additional peremptory challenge during the jury voir dire. During voir dire, then-prospective juror Ms. Heyer responded to the inquiry by defense counsel, Ms. Garrett:

MS. GARRETT: I know the State asked you this already, but is there anyone who is, maybe, just uncomfortable with the fact that Ashlie is transsexual, who feels that maybe that starts her with a strike against her?

For a religious reason, a moral reason, just a disagreement with the lifestyle? No? Good?

Is there anyone who just feels the situation is maybe a little too weird?

Something that it just might be difficult for you to sit on the case?

* * *

MS. HEYSER: I do.

MS. GARRETT: Alright. Thank you for being honest, Ms. Heyser. What – what about it would make you feel that way?

MS. HEYSER: I just – I don’t – I mean – I just –

MS. GARRETT: Could I ask you to speak up a little bit?

MS. HEYSER: I’m sorry.

THE COURT: Okay.

MS. HEYSER: I just – I just don’t understand the whole concept of it.

MS. GARRETT: Okay.

MS. HEYSER: Not that I wouldn’t be able to be true and honest about my (indiscernible) and what I would think. It’s just a little off-balance for me.

As a result of this exchange, defense counsel challenged Ms. Heyser for cause, which was denied. Defense counsel then requested an additional peremptory challenge to remove Ms. Heyser from the panel, which was also denied. As a result, Ms. Heyser was seated on the jury panel.

To demonstrate reversible error, Appellant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted. Pentecost v. State, 545 So. 2d 861, 863 n.1 (Fla. 1989). The test for determining juror competency, or whether a juror is objectionable, is whether the juror can set aside any bias or prejudice and render her verdict solely upon the evidence presented and the instructions on law given to him by the court. Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984), cert. denied, 469 U.S. 873 (1984). A prospective juror is not subject to challenge for cause because of bias or prejudice where Appellant presents no evidence that the prospective juror would not have rendered her verdict solely upon evidence presented. Lusk v. State, 446 So. 2d 1038 (Fla. 1984).

In this case, Appellant never established that the prospective juror would not have rendered her verdict solely upon evidence presented, nor did the prospective juror at any time inform the trial court of any bias either for the defense or for the State. At most, she advised that it might be difficult for her to sit on the case. Nowhere in the transcript is there any testimony that Ms. Heyser would not have rendered her verdict solely upon the evidence presented. As a result, Ms. Heyser was not and is not an objectionable juror who had to be accepted into the panel. No reversible error has been shown. The trial court’s ruling should be affirmed.

Appellant also argues that the trial court erred in denying Appellant’s motion in limine whereby evidence of Appellant’s transgender status was admitted. While such evidence might have been irrelevant in tending to prove or disprove a material fact, pursuant to Florida Statute 90.401, its inclusion in the trial was harmless. The evidence in this case was so overwhelming that there is no reasonable possibility that any of the claimed errors affected the verdict. Even if it was error, it was harmless. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). It is therefore,

ORDERED that the trial court’s decisions are hereby AFFIRMED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 3^rd day of February 2012.

Original order entered on February 3, 2012 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.