10-002459PL Criminal Justice Standards And Training Commission vs. Eric S. Ferguson Status: Closed Recommended Order on Tuesday, August 10, 2010.

Summary: Respondent failed to maintain good moral character by committing a battery against his wife, warranting a two-year suspension of his certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

) Petitioner, )

)

vs. ) Case No. 10-2459PL

) ERIC S. FERGUSON, )

) Respondent. )

________________________________)

RECOMMENDED ORDER

Edward T. Bauer, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Okeechobee, Florida, on July 15, 2010.

APPEARANCES

For Petitioner: Joseph S. White

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Eric S. Ferguson, pro se

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of failing to

maintain good moral character and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 15, 2010,

Petitioner alleged that Respondent "did unlawfully commit

battery upon April Ferguson, by actually touching or striking

April Ferguson or intentionally causing harm to April Ferguson

against her will." The Administrative Complaint alleges that

Respondent thus violated Section 943.13(7), Florida Statutes,

by failing to maintain good moral character. Respondent

disputed the allegations in the Administrative Complaint and

timely requested a formal hearing.

On June 16, 2010, Petitioner filed a Notice of Intent to

Introduce Evidence of Other Crimes, Wrongs, or Acts. The Notice

pertained to an alleged battery committed by Respondent on

July 12, 2008, against April Ferguson in Highlands County,

Florida.

At the hearing, Petitioner called six witnesses and

introduced two exhibits, numbered 1-3, into evidence.

Respondent called three witnesses, testified on his own behalf,

and introduced three exhibits, numbered 1-3. The proceedings

were recorded and a Transcript was filed with the Division on

July 27, 2010. Petitioner timely filed a Proposed Recommended

Order, which was considered in the preparation of this

Recommended Order. Respondent did not submit a proposed

recommended order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2009 Florida Statutes.

FINDINGS OF FACT

1. At all times material to the allegations in the

Administrative Complaint, Respondent was certified by the

Department as a correctional officer in the State of Florida,

having been issued Correctional Certificate #121381 on June 30,

1989.

2. During the evening of March 23, 2009, Respondent and

his wife, April Ferguson, were at home socializing with several

friends. On at least one occasion during the evening, to the

dismay of Ms. Ferguson, Respondent referred to a particular

female guest as "baby" or "sweetie."

3. At approximately 1:30 a.m., after their friends had

departed, Ms. Ferguson told Respondent that she could not

believe that he had referred to one of the guests as "baby."

Respondent replied that the comment was unintentional, at which

point Ms. Ferguson went into the bathroom and took a shower.

Thereafter, while Ms. Ferguson and Respondent were lying in bed,

Ms. Ferguson once again brought up the subject of Respondent's

comments.

4. It is undisputed that an argument ensued, and that

Ms. Ferguson ultimately suffered injuries to her face, which

included bruising to her forehead, a swollen nose, and a

significant laceration to her lip. It is also undisputed that

Ms. Ferguson was driven to the hospital within five minutes of

sustaining the injures, and that she was hysterical because she

feared that the split lip would leave her "deformed." However,

the manner in which Ms. Ferguson's injuries were sustained

(i.e., by accident or the result of an intentional battery) was

sharply contested during the final hearing.

5. Petitioner's principal witnesses during the final

hearing was Ms. Cynthia Baker, the mother of Ms. Ferguson.

Ms. Baker testified that on March 24, 2009, at approximately

2:30 a.m., she received a telephone call from Ms. Ferguson, who

sounded distraught. According to Ms. Baker, Ms. Ferguson

stated, "Mom, I need you to come to the hospital." Ms. Baker

testified that she arrived at emergency room approximately 15

minutes later and made contact with Ms. Ferguson, who was

"extremely upset," crying, and visibly injured. Ms. Baker

further testified that Ms. Ferguson told her that she and

Respondent had gotten into an argument concerning his

inappropriate comments, which culminated in Respondent pulling

her out of bed and striking her in the face.

6. Upon hearing how her daughter was injured, Ms. Baker

immediately contacted the authorities. The undersigned finds

Ms. Baker's testimony credible in all respects. 1

7. At some point thereafter, Deputy Donald Ellis of the

Okeechobee Sheriff's Office arrived at the hospital to

investigate. During the final hearing, Deputy Ellis testified

that Ms. Ferguson, who was crying, initially refused to provide

any specific information concerning how the injuries were

sustained and stated that she did not want to press charges

against her husband.

8. Deputy Ellis further testified, however, that

Ms. Ferguson agreed to speak with him after he acknowledged her

desire that criminal charges not be pursued. At that point,

Ms. Ferguson advised Deputy Ellis that Respondent had injured

her with a "palm strike." The undersigned concludes that Deputy

Ellis' testimony is credible.

9. In contrast to the accounts detailed above, Respondent

testified that he did not strike Ms. Ferguson and that her

injuries were sustained as the result of an accidental fall.

Ms. Ferguson offered a similar explanation during her final

hearing testimony. The undersigned does not find the testimony

of Respondent or Ms. Ferguson concerning the cause of the

injuries to be credible.

10. The undersigned concludes that Petitioner has

presented clear and convincing evidence that Respondent failed

to maintain good moral character by committing a battery against

Ms. Ferguson on or about March 24, 2009.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Subsection 120.57(1), Florida Statutes.

12. This is a disciplinary proceeding against Respondent's

license. Accordingly, Petitioner must prove the allegations in

the Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Sterne, Inc. , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.

1987).

13. 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)).

14. The Administrative Complaint alleges that Respondent

failed to maintain good moral character as required by Section

943.13(7), and thereby violated Section 943.1395(7), Florida

Statutes, which 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:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) 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.

(d) Successful completion by the officer of

any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

15. The Department has defined the failure to maintain

good moral character, as required by Section 943.13(7), Florida

Statutes, in Florida Administrative Code Rule 11B-27.0011. This

rule provides in pertinent part:

(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:

* * *

(b) Except as otherwise provided in Section

943.13(4), F.S., a plea of guilty or a

verdict of guilty after a criminal trial for

any of the following misdemeanor or criminal

offenses, notwithstanding any suspension of

sentence or withholding of adjudication, or

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.

Fla. Admin. Code R. 11B-27.0011 (emphasis added).

16. In evaluating the evidence presented in this matter,

the undersigned was strongly persuaded by Ms. Baker, who

testified credibly that she made contact with a crying and

"extremely upset" Ms. Ferguson at approximately 2:45 a.m., at

which time Ms. Ferguson stated that Respondent had pulled her

out of bed and struck her in the face.

17. Petitioner argues, and the undersigned agrees, that

Ms. Ferguson's statements to Ms. Baker qualify as excited

utterances pursuant to Section 90.803(2), Florida Statutes. In

order for an exited utterance to be admissible, the following

requirements must be met: (1) there must have been an event

startling enough to cause nervous excitement; (2) the statement

must have been made before there was time to contrive or

misrepresent; and (3) the statement must have been made while

the person was under the stress of excitement caused by the

startling event. Stoll v. State , 762 So. 2d 870, 873 (Fla.

2000).

18. The first prong of the test outlined above is easily

satisfied, as an event occurred (either a fall or a battery)

that resulted in injuries to Ms. Ferguson so significant that by

her own admission, she was "very, very upset" and in hysterics

because she feared a possible deformity.

19. The second prong of the test, which inquires whether

the statement was made before there was time for reflection,

presents a closer question. The evidence reveals that

Ms. Ferguson sustained her injuries at some point after

1:30 a.m. and that Ms. Baker made contact with Ms. Ferguson at

the hospital at approximately 2:45 a.m., at which time the

statements were made. Accordingly, it is possible that nearly

75 minutes could have elapsed between the time of the incident

and the statements at issue. It is well settled, however, that

"the test regarding the time elapsed is not a bright-line rule

of hours or minutes." Rogers v. State , 660 So. 2d 237, 240

(Fla. 1995). Thus, while the length of length of time between

the event and the statement is a relevant consideration, other

factors must be evaluated, such as the physical and mental

condition of the declarant, the characteristics of the event,

and the subject matter of the statements. Williams v. State ,

967 So. 2d 735, 748 (Fla. 2007); see also United States v.

Belfast , 2010 U.S. App. LEXIS 13538, *74 (11th Cir. July 15,

2010) ("It is the totality of the circumstances, not simply the

length of time that has passed between the event and the

statement, that determines whether a hearsay statement was an

excited utterance"). After weighing the relevant factors, which

include Ms. Ferguson's emotional state and the nature of her

injuries, the undersigned finds that Petitioner has adequately

demonstrated that Ms. Ferguson did not engage in reflection

prior to making the statements to Ms. Baker. See Hayward v.

State , 24 So. 3d 17, 20 (Fla. 2009) (holding statement qualified

as an excited utterance; "[g]iven Destefano's physical and

emotional condition following his devastating injuries, the

evidence clearly indicates he was still under the effect of the

startling events of that early morning, thus supporting a

conclusion that he did not engage in reflection prior to making

the statement"); Werley v. State , 814 So. 2d 1159, 1161 (Fla.

1st DCA 2002) (holding trial court did not abuse its discretion

in admitting statement of domestic battery victim as an excited

utterance, even though victim's 911 call occurred more than one

hour after she was struck in the face with a bottle); Bell v.

State , 847 So. 2d 558, 561 (Fla. 3d DCA 2003) (holding

statements of attempted kidnapping victim were properly admitted

as excited utterances despite 50 minute delay between incident

and statements); see also United States v. Iron Shell , 633 F.2d

77, 85-86 (8th Cir. 1980) (holding no abuse of discretion in

admitting statements of attempted rape victim as excited

utterances, notwithstanding 45 to 75 minute delay between

incident and interview with law enforcement).

20. Petitioner has also satisfied the third prong of the

test, which examines whether the statement was made while the

declarant was under the stress of excitement caused by the

startling event. As detailed previously, Ms. Ferguson testified

that she was in hysterics when she arrived at the hospital.

Upon Ms. Baker's arrival a short time later, Ms. Ferguson was

still "very upset" and crying. The undersigned is persuaded

that Ms. Ferguson was continuing to experience the stress of the

incident at the time of her statements to Ms. Baker, and that

this is not a situation where the declarant had recovered her

composure after an incident and once again became excited when

describing what had occurred.

21. As Petitioner has met the three prongs of the test,

Ms. Ferguson's statements to Ms. Baker qualify under the excited

utterance exception to the hearsay rule. Since a hearsay

exception applies, the statements to Ms. Baker provide a basis

upon which the undersigned can find that Respondent committed a

battery against Ms. Ferguson. § 120.57 (1)(c), Fla. Stat.;

Dieguez v. Fla. Dep't of Law Enforcement, Criminal Justice

Standards & Training Comm'n , 947 So. 2d 591, 594 (Fla. 3d DCA

2007) ("Under [Section 120.57(1)(c)], the evidence which can

support a factual finding includes evidence which is not

hearsay, and evidence which is admissible under a hearsay

objection.").

22. The undersigned concludes that Ms. Baker's testimony,

supplemented by the hearsay statements described by Deputy

Ellis, 2 constitutes clear and convincing evidence that Respondent

is guilty of the March 24, 2009, battery charged in the

Administrative Complaint. 3

23. As Respondent committed the battery alleged in the

Administrative Complaint, he failed to maintain good moral

character as required by Section 943.13(7), Florida Statutes.

24. The undersigned must next determine what penalty is

warranted. Pursuant to Florida Administrative Code Rule 11B-

27.005(5)(b)15., the disciplinary guidelines provide for a

penalty that ranges from prospective suspension to revocation.

25. Noting the nature of Ms. Ferguson's injuries, as well

as the fact that a minor child observed the "aftermath" of the

episode, Petitioner argues that revocation of Respondent's law

enforcement certification is warranted. Petitioner also notes

that in Criminal Justice Standards & Training Comm'n v. Coleman ,

Case No. 07-668PL (DOAH May 31, 2007), and Criminal Justice

Standards & Training Comm'n v. Wheeler , Case No. 06-2380PL (DOAH

November 8, 2006), both of which involved instances of domestic

battery, the Administrative Law Judges recommended revocation.

26. The undersigned disagrees that Coleman and Wheeler

support revocation of Respondent's certification. In Coleman ,

the respondent had only been licensed for approximately five

months at the time of the battery, whereas Mr. Ferguson has been

licensed since 1989 without any apparent disciplinary history.

With respect to Wheeler , the respondent kicked, choked, and

repeatedly punched the victim, whom he threatened to kill if she

told anyone of the attack. Although the facts of the instant

case are serious, they are not as egregious as what occurred in

Wheeler .

27. The undersigned concludes that revocation is too

severe and that a two-year suspension, which is the maximum

suspension period that may be imposed, 4 is a fair and just

penalty under the circumstances. See Criminal Justice Standards

& Training Comm'n v. Gunn , Case No. 07-3654PL (DOAH November 6,

2007) (recommending two-year suspension where victim's jaw was

wired shut for seven or eight weeks as a result of a battery

committed by her husband); Criminal Justice Standards & Training

Comm'n v. Scriven , Case No. 03-3240PL (DOAH December 22, 2003)

(recommending two-year suspension where respondent repeatedly

struck her daughter on the back with a claw hammer).

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and

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 imposing a two-year

prospective suspension.

DONE AND ENTERED this 10th day of August, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of August, 2010.

ENDNOTES

1 The undersigned concludes, as a preliminary question of fact,

that Ms. Ferguson's statements to Ms. Baker qualify as excited

utterances pursuant to Subsection 90.803(2), Florida Statutes.

See Frederick v. State , 923 So. 2d 1288 (Fla. 5th DCA 2006)

("Whether the necessary state of mind is present for a court to

admit a statement as an excited utterance is a preliminary fact

to be determined by the trial court").

2 Petitioner argues that Ms. Ferguson's statements to Deputy

Ellis likewise qualify as excited utterances. The undersigned

cannot agree, however, as the record fails to establish the time

Deputy Ellis arrived at the hospital. Without some idea as to

the amount of time that elapsed between the incident and the

statement to the deputy, Petitioner cannot meet its burden of

demonstrating that Ms. Ferguson did not engage in reflective

thought.

3 As the testimony of Ms. Baker and Deputy Ellis was sufficient

to establish the alleged battery by clear and convincing

evidence, it was unnecessary for the undersigned to consider the

testimony relating to the July 12, 2008, "similar fact" episode.

The undersigned would also note that he did not rely upon the

testimony of Ms. Georgene Shreves, the nurse who treated Ms.

Ferguson. Ms. Shreves, whose testimony essentially consisted of

reading from medical records that were never introduced into

evidence, admitted during her testimony that she had no

independent recollection of Ms. Ferguson. Contrary to

Petitioner's argument, the past recollection recorded exception

to the hearsay rule does not apply, as Ms. Shreves never

testified that she recorded the facts contained in the records

accurately or correctly, nor did she testify that she would not

have recorded the facts in the medical records unless they were

true. See Charles W. Ehrhardt, Ehrhardt's Floirda Evidence , §

803.5, p. 872 (2008 ed.) ("The foundation may be laid by

testimony that the witness remembers making an accurate

recording of the fact or event or by testimony that the witness

is confident that the facts would not have been written unless

they were true"). The undersigned also rejects Petitioner's

alternative contention that Ms. Ferguson's statements to Ms.

Shreves regarding the cause of her injuries fall under the

"statements for purpose of medical diagnosis or treatment"

exception to the hearsay rule. See Llanos v. State , 766 So. 2d

1219, 1219-20 (Fla. 4th DCA 2000).

4 See § 943.1395(7)(b), Fla. Stat.

COPIES FURNISHED:

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

Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Eric S. Ferguson

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.