author: QUINCE, J. CANTERO, J.,

text:
    Raymond BAUGH, Petitioner, v. STATE of Florida, Respondent.
    No. SC04-21.
    Supreme Court of Florida.
    April 26, 2007.
    Rehearing Denied July 10, 2007.

      J. Marion Moorman, Public Defender, Tenth Judicial Circuit, Bartow, FL, and James T. Miller, Special Assistant Public Defender, Jacksonville, FL, for Petitioner.

      Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Tampa Criminal Appeals and Richard Michael Fishkin, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

We have for review Baugh v. State, 862 So.2d 756 (Fla. 2d DCA 2003), in which the Second District Court of Appeal certified the following question as a matter of great public importance:

IF A CHILD VICTIM OF SEXUAL ABUSE TOTALLY REPUDIATES HER OUT-OF-COURT STATEMENTS AT TRIAL, AND THE PROSECUTION ADDUCES NO EYEWITNESS OR PHYSICAL EVIDENCE OF ABUSE, MUST THE TRIAL COURT GRANT A JUDGMENT OF ACQUITTAL EVEN IN THE FACE OF OTHER EVIDENCE CORROBORATING THE OUT-OF-COURT STATEMENTS AND THE DICTATES OF THE CONFRONTATION CLAUSE?

Id. at 767. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

As worded, we conclude that the certified question does not accurately reflect the circumstances of the instant case. The “corroborating” evidence offered in support of repudiated out-of-court statements by a child sexual abuse victim must corroborate the facts of the sexual act stated by the victim. Accordingly, we reword the question as follows:

If a child victim of sexual abuse totally repudiates her out-of-court statements at trial, and the prosecution adduces no eyewitness or physical evidence of abuse, must the trial court grant a judgment of acquittal when the other evidence presented by the prosecution does not corroborate the facts alleged in the victim’s repudiated statement?

For the reasons discussed below, we answer the reworded question in the affirmative and quash the decision of the Second District.

STATEMENT OF THE CASE AND FACTS

On the evening of January 13, 2002, Raymond Baugh’s girlfriend, Rachel, was on the phone ordering food for dinner. When her seven-year-old daughter, C.P., persisted in interrupting her conversation, Rachel sent C.P. to her bedroom. Baugh, who lived with Rachel, followed C.P. into the bedroom and closed the door. When Rachel ended her conversation, she attempted to enter C.P.’s room but found that the door was locked. C.P. testified that she had been playing with the lock earlier and the door accidentally locked when Baugh closed it behind him. Rachel proceeded to bang on the door and demand that it be opened. When the door was opened thirty seconds later, Rachel saw Baugh standing in the bedroom wrapped in a towel and holding two white mice in his hands. C.P. was standing behind him. Apparently, Baugh entered the bedroom after bathing and was only wearing a towel. Baugh intended to feed the mice to a pet snake in the bedroom. Baugh, 862 So.2d at 757.

After separating C.P. from Baugh, Rachel asked C.P. what had happened. C.P. responded that Baugh made her perform fellatio on him. Rachel accosted Baugh with this information, hit him several times, and demanded that he leave her house. Baugh denied doing what C.P. claimed. As the argument between Rachel and Baugh progressed, Baugh stated that he wanted C.P. to perform fellatio on him, have Rachel watch, and then have sex with Rachel. Thereafter, Rachel called the police and Baugh went into the bathroom where he attempted to slash his wrists and arms.

C.P. recounted the incident to a police detective the next day. C.P. told the detective that “it happened,” that she had performed the same act on Baugh twelve times previously, and that “white stuff came out, which tasted bad.” Baugh, 862 So.2d at 758. She also told investigators that Baugh had shown her pictures to teach her how to perform oral sex. C.P. repeated this story to the state attorney and the detective on January 24 and to the child protection team nurse on January 28. However, according to Rachel, sometime in late February, C.P. voluntarily recanted her story and told her mother that she had lied about what happened with Baugh.

At Baugh’s trial for capital sexual battery, C.P. testified that her original story was a “fib” which she made up to get Baugh in a “ ‘little, but not that much trouble,’ because sometimes he made her mad.” Id. at 757-58. C.P. also stated that she learned the details of the sexual act from her older brother who had been assaulted by a different individual in a manner identical to what she had described to the detective. C.P. explained that she maintained her story about Baugh because she was afraid of what her mother might do if she found out that C.P. had lied. C.P. stated that she ultimately decided to tell the truth because she was sad that her family had been broken apart. C.P. also stated that Baugh had never shown her the pornographic pictures that the police recovered from their house; she had found them while snooping in her mother’s bedroom. C.P. also testified about new house rules instituted by Rachel after the incident, including a rule regarding proper clothing in the house and a prohibition on locking the interior doors of the house. The State argued that these rules showed that Rachel believed C.P.’s original story.

At the conclusion of C.P’s testimony, the State had demonstrated that the child had first accused Baugh of molesting her, repeated that story to a number of people, and then changed her story. During their testimony, the detective, the child protection team nurse, and Rachel repeated C.P.’s prior statements about the incident. Thereafter, the State introduced testimony from an inmate imprisoned with Baugh and a former friend of Rachel’s in order to rebut the testimony of C.P. and Rachel concerning the child’s decision to change her story. The inmate claimed that he overheard Baugh telling female visitors that “they had to get the little girl to ‘recamp’ [sic] her story because otherwise he was looking at life in prison.” Id. at 761. The family friend testified that C.P. told her “ ‘it really did happen’ but [Rachel] wanted her to change her story.” Id. The State failed to produce physical or direct evidence to support C.P.’s original story of abuse.

At the conclusion of the State’s case, Baugh moved for a judgment of acquittal, contending that the State had adduced no direct evidence that C.P. had been sexually abused. The trial court denied the motion. Baugh was subsequently convicted of capital sexual battery on C.P. and sentenced to life in prison.

On appeal, Baugh asserted that C.P.’s prior out-of-court statements were insufficient to sustain his conviction. The Second District agreed and held that C.P.’s out-of-court hearsay statements alone could not sustain Baugh’s conviction for capital sexual battery. However, the Second District concluded that “there was some other evidence that would give rise to the inference that Mr. Baugh committed the crime of which he was accused.” Baugh, 862 So.2d at 757. The Second District described the following “corroborating” evidence: “the spontaneous statement from [the child] to her mother immediately after the event; the defendant’s ‘admission’ (“I want her to s[-]ek my d[-]ck while you watch”); the defendant’s consciousness of guilt as evidenced by his suicide attempt; and the suggestion that the defendant engaged in ‘witness tampering,’ adduced from the testimonies of the prison inmate and the mother’s former friend.” Id. at 766. The Second District admitted its “hesitation to say that any one piece of ‘corroboration’ would be sufficient” in conjunction with the out-of-court statements to sustain Baugh’s conviction. Id. at 767. However, the Second District concluded that, based on the inferences that the jury could draw from all of the evidence, the trial court correctly denied Baugh’s motion for judgment of acquittal. Id. In light of this corroborative evidence, the Second District affirmed the conviction. Additionally, the Second District certified the original question above to this Court based on a perceived “need for clarification of some of these issues.” Id.

ANALYSIS

The instant case is similar to Beber v. State, 887 So.2d 1248 (Fla.2004), because like Beber this case involves the admission of pretrial statements as substantive evidence under the child victim hearsay exception in section 90.803(23), Florida Statutes (2001), after the child recanted the pretrial statements during her in-trial testimony. In Beber, the Fifth District concluded that an out-of-court videotaped statement by the child victim, which had been admitted pursuant to section 90.803(23), was sufficient to sustain Be-ber’s conviction of capital sexual battery for fellatio, even though there was no corroborating evidence other than the child’s in-court testimony that Beber perpetrated other sexual crimes on him, and even though the child contradicted his videotaped statement in court. Beber v. State, 853 So.2d 576 (Fla. 5th DCA 2003), quashed, 887 So.2d 1248 (Fla.2004). In our review, we quashed the decision of the Fifth District and reaffirmed our previous holding in State v. Green, 667 So.2d 756 (Fla.1995), and State v. Moore, 485 So.2d 1279 (Fla.1986), that prior inconsistent statements are insufficient by themselves to sustain a criminal conviction. Beber, 887 So.2d at 1253.

The Second District’s analysis in Baugh is consistent with our reasoning in Beber. The Second District recognized that the child’s out-of-court hearsay statements, which directly conflicted with her in-court testimony, were not sufficient by themselves to sustain Baugh’s conviction and that “there must be other corroborating evidence to support the conviction.” Baugh, 862 So.2d at 765.

The Second District acknowledged that none of the alleged corroboration carried much evidentiary weight and that when considered individually “each of these grounds ... would fail as sufficient corroboration of Mr. Baugh’s guilt.” Id. at 766. The Second District noted problems with each piece of the alleged corroborating evidence. C.P.’s “spontaneous statement” to her mother was part of the substantive evidence admitted under section 90.803(23) and “putting another name on it” did not make it any more corroborative of the event. Id. Baugh’s “admission” was “not really an admission at all, but a statement of desire and not of a completed act.” Id. While Baugh’s suicide attempt was “suggestive of guilt,” it was “equally susceptible of an interpretation that [the defendant] was despondent over the accusation and was in need of intensive psychotherapy.” Id. Finally, the court said that the testimony of the jail inmate and former friend revealed that Baugh “knew he would never get out of jail unless [the child] changed her story. That was true; as long as [the child] alleged that Mr. Baugh committed the crime, he had little hope of being released. However, that does not indicate that her original story was either true or corroborative of his guilt.” Id. at 766-67. Despite the Second District’s “hesitation” to find the corroborating evidence and the out-of-court statements sufficient to sustain Baugh’s conviction, the court concluded that denial of Baugh’s motion for judgment of acquittal was correct in light of “all of the inferences that the jury could draw from the sum total of the evidence.” Id.

Thus, we must determine whether the evidence presented at Baugh’s trial to corroborate the child victim’s out-of-court statements was sufficient to sustain his conviction. Baugh was charged with capital felony sexual battery pursuant to section 794.011(2)(a), Florida Statutes (2001). The elements of this crime are (1) a person eighteen years of age or older (2) commits a sexual battery upon (3) a person less than twelve years of age. In her original statement the child alleged that Baugh made her perform fellatio on him. The age of the defendant and the victim are not at issue here. Thus, the evidence presented in corroboration had to demonstrate that fellatio occurred and that the defendant was the person who forced the child to commit this act. We conclude that none of the other evidence, either individually or collectively, corroborated the statement concerning fellatio.

The only direct evidence presented in this case was the child’s out-of-court hearsay statements, which she completely recanted during her in-court testimony. The evidence which was offered as “corroborating” these out-of-court statements, as required by Green and Moore, was circumstantial evidence from which the jury had to infer that Baugh had perpetrated a sexual battery on the child.

“The rule is well established that the prosecution, in order to present a pri-ma facie case, is required to prove each and every element of the offense charged beyond a reasonable doubt, and when the prosecution fails to meet this burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted.” Williams v. State, 560 So.2d 1304, 1306 (Fla. 1st DCA 1990). In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. Id. There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Banks v. State, 732 So.2d 1065 (Fla.1999).

As we held in Green and reaffirmed in Beber, “a prior inconsistent statement standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt.” Green, 667 So.2d at 760; accord Beber, 887 So.2d at 1251. However, recanted statements can sustain a sexual battery conviction “when other proper corroborating evidence is admitted.” Green, 667 So.2d at 761 (emphasis added); see Beber, 887 So.2d at 1252-53. Corroborating evidence is defined as “[ejvidence that differs from but strengthens or confirms what other evidence shows,” especially “that which needs support.” Black’s Law Dictionary 596 (8th ed.2004).

In the instant case, the question is whether the other evidence presented at trial corroborated the child’s recanted out-of-court statement and, if so, whether the evidence was sufficient to convict Baugh. Baugh was charged with a capital felony sexual battery pursuant to section 794.011(2)(a), Florida Statutes (2001). The information specified that Baugh, who was over eighteen years of age, committed a sexual battery on a child less than twelve years of age by placing his penis into or in union with the mouth of the child. The only evidence adduced at trial that Baugh placed his penis in the child’s mouth was the child’s out-of-court statements, which she recanted during her in-court testimony. We conclude that the other evidence collectively did not actually “corroborate” the recanted out-of-court statements.

Even if Baugh’s purported “admission” is viewed as a statement of desire rather than a rash response during a heated argument, it still only shows that he had thoughts about committing sexual battery on the child, not that he actually committed the act. The fact that Baugh slashed his wrists after being confronted by the child’s mother may be “suggestive of guilt,” but is also consistent with a troubled defendant in need of psychotherapy, as evidenced by Baugh’s earlier suicide attempt by the same method when his telephone service was turned off for nonpayment. Although the new household rules concerning clothing and locked doors indicate that the mother believed the child’s original story, the mother readily admitted that she initially did believe the story. Finally, while the testimony of both the jail inmate and the former friend about the child’s recantation could indicate that the child was pressured to change her story, it also reflected the reality of the situation — Baugh would not get out of jail as long as the child alleged that he committed the crime. Thus, the evidence presented to “corroborate” the child’s recanted out-of-court statements did not necessarily strengthen or confirm the recanted out-of-court statements. See Baugh, 862 So.2d at 766-67 (discussing the problems with each item of “corroborating” evidence and noting how each could be interpreted in a manner entirely consistent with innocence).

Where the evidence creates only a strong suspicion of guilt or simply a probability of guilt, the evidence is insufficient to sustain a conviction. Cox v. State, 555 So.2d 352, 353 (Fla.1989). Additionally, evidence is insufficient to support a conviction when it requires pyramiding of assumptions or impermissibly stacked inferences. Cf. Gustine v. State, 86 Fla. 24, 97 So. 207, 208 (1923) (reversing conviction because “[o]nly by pyramiding assumption upon assumption and intent upon intent can the conclusion necessary for conviction be reached”); Brown v. State, 672 So.2d 648, 650 (Fla. 4th DCA 1996) (finding evidence insufficient when it requires pyramiding of assumptions or inferences in order to arrive at the conclusion of guilt).

CONCLUSION

For the reasons discussed above, we answer the reworded certified question in the affirmative and quash the decision of the Second District.

It is so ordered.

LEWIS, C.J., and WELLS and PARIENTE, JJ., concur.

CANTERO, J., dissents with an opinion, in which ANSTEAD and BELL, JJ., concur.

CANTERO, J.,

dissenting.

I dissent from the result in this case because it nullifies a jury’s guilty verdict based essentially on credibility choices. I do so for two reasons. First, I disagree with the reworded certified question, which does not accurately describe the circumstances of this case. I also disagree with the majority’s conclusion that the evidence is insufficient to support the defendant’s conviction. Looking at the evidence cumulatively, I agree with the district court that it supports the jury’s verdict. I will explain each of these disagreements in turn.

I. The Certified Question

The majority rewords the certified question to ask whether the defendant’s conviction for capital sexual battery of a seven-year-old girl can stand “when the other evidence presented by the prosecution does not corroborate the facts alleged in the victim’s repudiated statement.” Majority op. at 200 (emphasis added). Not only does the question, as the majority poses it, answer itself, but it is the opposite of the question the district court certified, which was whether the defendant’s conviction can stand in light of “other evidence corroborating the out-of-court statements.” Baugh v. State, 862 So.2d 756, 767 (Fla. 2d DCA 2003) (emphasis added). The Court’s new question is unnecessary because we have already decided that issue. See, e.g., Beber v. State, 887 So.2d 1248, 1251 (Fla.2004) (disallowing sexual battery convictions “where the only evidence of fellatio was the child’s hearsay statements”); State v. Moore, 485 So.2d 1279, 1281 (Fla.1986) (holding that “a prior inconsistent statement standing alone is insufficient to prove guilt beyond a reasonable doubt”). Of course, the district court would not have certified such an obvious question because it, too, knew the answer. See Baugh, 862 So.2d at 757 (acknowledging that “the prior statements alone cannot sustain the defendant’s conviction”).

The rephrased question also does not accurately describe the evidence presented. As the district court recognized, the other evidence here clearly does corroborate the victim’s out-of-court statements; the issue is whether. that corroboration, which consisted of mostly circumstantial evidence, is enough to survive a motion for judgment of acquittal. The court’s specific question was: “If a child victim of sexual abuse totally repudiates her out-of-court statements at trial, and the prosecution adduces no eyewitness or physical evidence of abuse, must the trial court grant a judgment of acquittal even in the face of other evidence corroborating the out-of-court statements and the dictates of the Confrontation Clause?” Id. at 767. In other words, the issue is whether recanted out-of-court statements, combined with other circumstantial evidence of the crime, suffice to defeat a motion for judgment of acquittal.

The most we have said on that topic is that recanted statements can sustain a sexual battery conviction “when other proper corroborating evidence is admitted.” State v. Green, 667 So.2d 756, 761 (Fla.1995). In Green, the only evidence corroborating a mentally retarded teenager’s allegation of sexual abuse was a doctor’s testimony that “the size of her vaginal opening was consistent with some form of vaginal penetration.” Id. at 757. Noting that the child claimed she had sex with someone other than the defendant, id., we concluded that the “physician’s testimony ... is simply not adequate to supply that corroboration.” Id. at 761. We have not, however, explained how much corroboration would be “adequate.” As the district court said, there “is a need for clarification.” Baugh, 862 So.2d at 767. I would therefore answer the question certified.

II. The Sufficiency of the Evidence

The certified question really asks the question left unanswered in Green: how much corroboration is enough? In Green, we held that “in a criminal prosecution, a prior inconsistent statement standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt.” 667 So.2d at 760 (citing Moore, 485 So.2d 1279) (emphasis added). We also noted, however, that recanted statements can sustain a sexual battery conviction “when other proper corroborating evidence is admitted.” Id. at 761. In Beber, 887 So.2d at 1251, we applied Green and again held that out-of-court statements that have been recanted at trial cannot, standing alone, support a criminal conviction. We acknowledged that “[wjhile inconsistent statements admitted under section 90.803(23) can be used as substantive evidence when other proper corroborating evidence is admitted, in Green’s case we concluded that the testimony of the examining physician was ‘simply not adequate to supply that corroboration.’ ” Id. at 1252-53 (quoting Green, 667 So.2d at 761). Therefore, the proper question here is whether the circumstantial evidence corroborates the victim’s recanted statements so that all the evidence, considered together, suffices to convict the defendant.

In reviewing the evidence, we must look cumulatively at both the corroborating evidence and the direct evidence (the victim’s recanted statements) to determine if they were sufficient to avoid a judgment of acquittal. The legal standard is simply whether a rational jury, “viewing the evidence in the light most favorable to the State, ... could find the existence of the elements of the crime beyond a reasonable doubt.” Floyd v. State, 913 So.2d 564, 571 (Fla.2005) (quoting Pagan v. State, 880 So.2d 792, 803 (Fla.2002)). Moreover, in analyzing the sufficiency of the evidence, any issues of credibility must be resolved in favor of the State. See, e.g., Darling v. State, 808 So.2d 145, 155 (Fla.2002) (“The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal”) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)); Donaldson v. State, 722 So.2d 177, 182 (Fla.1998) (“The fact that the evidence is contradictory does not warrant a judgment of acquittal since the weight of the evidence and the witnesses’ credibility are questions solely for the jury.”) (citing Davis v. State, 425 So.2d 654, 655 (Fla. 5th DCA 1983)).

Applying this standard, I agree with the district court that the “sum total of the evidence” in this case was sufficient to submit the case to the jury. Baugh, 862 So.2d at 767. The strongest evidence, of course, is the seven-year-old victim’s graphic description of the events in her room. After emerging from her locked bedroom with the defendant (her mother’s live-in boyfriend), who was wearing only a towel, this seven-year-old girl told her mother that the defendant “made me suck on his dick.” She repeated this accusation to an investigator two days after the incident, adding more details. According to the officer’s testimony, the girl said the defendant “opened up his towel, that she placed his penis inside her mouth, that she held it with her right hand and she moved her right hand up and down on it as she had her mouth on it” — a technique the defendant taught her, using a pornographic picture for demonstration. She said he did not ejaculate on the night in question because they were interrupted by her mother’s knocking. But she recalled performing fellatio on him twelve other times. On the first occasion, she said that “white stuff came out [and] made her choke,” so “she spit it out.” She described it as “very bad tasting.” Thereafter, the defendant told her “to swallow very fast and it wouldn’t choke you like that.” The incidents happened so frequently that the defendant developed a typical process of initiation: “If he opened the towel, or any type clothing that he may have been wearing at the time, and if he looked down, she knew that it was time for her to perform oral sex on him.” The girl “volunteered” a similar story to a nurse practitioner, stating that the defendant “made me suck his private” twelve times, and recalling that he left “white stuff in my mouth.”

These descriptions of sexual abuse were very graphic and detailed, containing the sort of information that no seven-year-old should know. They were also consistent over time. Nevertheless, more than a month after the incident, the girl suddenly recanted. She testified at trial that her knowledge of oral sex came primarily from a different source, an older brother who had been sexually abused, and that she found the pornography while snooping on her own. She testified that the defendant came into her room that night to scold her for bothering her mother, and that he merely closed a door that she forgot to unlock earlier in the day. When her mother found them, she falsely accused the defendant of sexual abuse to get him in a “little, but not that much trouble.” The girl admitted that, when she recanted, she “felt sad for our family” and “want[ed] our family back.” But she denied that anyone had pressured her to change her story.

I acknowledge, as did the district court, that standing alone the girl’s recanted accusations cannot sustain the defendant’s conviction. See Baugh, 862 So.2d at 766. Our previous cases made that clear. See, e.g., Beber, 887 So.2d at 1251; Moore, 485 So.2d at 1281. Yet we have emphasized that recanted accusations can sustain a conviction if “other proper corroborating evidence is admitted.” Green, 667 So.2d at 761. Corroborating evidence is generally defined as “[e]vidence that differs from but strengthens or confirms what other evidence shows.” Black’s Law Dictionary 596 (8th ed.2004). Such evidence needs only to strengthen or confirm the victim’s recanted allegations to such an extent that a rational jury could find them truthful beyond a reasonable doubt.

The record in this case contains plenty of evidence that strengthens or confirms the victim’s recanted allegations. The strongest confirmation comes from her mother, who testified about the evening of the incident. The door to her daughter’s bedroom was locked. The mother banged on it three times, demanding that it be opened. It took “close to thirty seconds” before the door opened to reveal her daughter with the defendant. The mother now claims that the defendant was holding mice to feed to a snake. An officer testified, however, that the mother originally stated that, while the defendant used the mice as an excuse, “she did not see the mice out, and did not think he had time to put them away.” Baugh, 862 So.2d at 760. Although the boyfriend did not have an erection when the door opened, the mother was sufficiently concerned that she separated her daughter from him, at which point the girl made her initial accusation of sexual abuse. The mother angrily confronted the defendant. According to what she later told investigators, the defendant never denied it. During their fight he yelled: “I want her to suck my dick, I want you to watch, and then I want to fuck you after.” The mother testified that, at the time, she believed him. The defendant then tried to kill himself, slitting his wrists with a razor blade. Later that night, he told an officer that he wanted to be left alone “so he could die in peace.” The mother admittedly believed that her daughter’s accusations against the defendant were true. She called a friend “to come and remove me and my children from the household.” When she returned home, she established new house rules regarding nudity and the locking of interior doors. She also invited her friend to move into the home for financial support.

The mother’s statements to police during the initial investigation were even more damaging. She told the police that before she knocked on her daughter’s door, she listened for a few minutes but did not hear anything. She then knocked on the door. She heard the defendant say, “The mice are out — hang on a minute.” She then banged on the door. She did not see the mice out and did not think he had time to put them away. Her daughter looked as if she had been caught doing something wrong. She therefore took her to another room, where the daughter first made the accusations.

The mother’s friend also testified at trial. She, too, heard the girl say that the defendant “made me suck his privates.” But she recalled that the mother, after visiting the defendant in prison, “said that the only way he is going to get out of jail is if I take my story back.” She overheard the mother “yelling at her [daughter], telling her, you know, ‘You have to tell the truth.... If you are lying to me, I’m going to beat you.’ ” According to the friend, the girl was “upset” and “[i]t was not a good situation.” Later that night, the girl suddenly recanted. The friend allegedly spoke with the girl about this recantation:

I told her, “If you are doing this for attention I’m not going to get mad at you, I’m not going to yell at you, we just need to know. Because if [the defendant] didn’t do it, [he] can’t be sitting in jail, it’s not right.” And she says, “But it happened.” And I said, “Then why are you saying?” — “Well, mommy wants to say it didn’t happen.”

(Emphases added.) The mother subsequently evicted the friend from the house. Despite this falling out, the friend admitted that she did not go to the authorities to report her conversation with the girl, who denied that it ever happened.

Finally, a fellow prisoner of the defendant’s testified. He allegedly overheard the defendant in the visitation room saying: “You got to get the little girl to recamp [sic] her story because I’m looking at life in prison.” He advised the defendant not to “mess[ ] around with a witness because child protection can remove that child from the home,” to which the defendant responded, “there is no way they can do that.” He also overheard a phone conversation in which the defendant said that “all you have to say is you gave the little girl a bath or whatever and when I came home from work you gave me the same towel.” The prisoner admitted that he was on sex offender probation and that he was “hoping” his testimony in this case would improve his situation, although the State made clear it would not.

The majority takes a divide-and-conquer approach to this evidence, explaining why each isolated piece does “not actually ‘corroborate’ the recanted out-of-court statements.” Majority op. at 205 (quoting Davis v. State, 90 So.2d 629, 631 (Fla.1956)). I acknowledge that, as the district court said, each piece of circumstantial evidence, viewed “individually, would fail as sufficient corroboration of [the defendant’s] guilt.” Baugh, 862 So.2d at 766. The relevant question, however, is whether the evidence cumulatively demonstrates the defendant’s guilt, not whether any individual piece does. The majority opts for a divide-and-conquer approach because it wants to avoid “pyramiding assumption upon assumption.” Majority op. at 205 (quoting Gustine v. State, 86 Fla. 24, 97 So. 207, 208 (1923)). This case, however, presents only two levels of evidence. At the base of the “pyramid” is a solid piece of direct evidence: the victim’s detailed allegations of sexual abuse. Each piece of corroborating evidence relates directly to those allegations, making it unnecessary to stack assumptions.

While the corroborating evidence in this case may not independently prove the defendant’s guilt, it strongly supports the child’s allegations of sexual abuse. The mother found the child and the defendant in a suspicious situation, after which the child made accusations of sexual abuse and the defendant yelled, believably, that he wanted the child to perform fellatio on him. The defendant then tried to kill himself. The majority dismisses this evidence because the defendant was psychologically “troubled” and may have merely “thought! ] about committing sexual battery,” without ever actually doing it. Majority op. at 204. But that is where the girl’s accusations come in. She gave graphic and detailed descriptions of sexual abuse to multiple people over multiple weeks, explaining how the defendant taught her to perform fellatio, what it was like, how many times she had performed it, and how the defendant normally initiated their encounters. The credibility of these statements — which, again, is an issue for the jury — is substantially strengthened by the manner in which the defendant conducted himself after being discovered wearing only a towel in the girl’s locked bedroom. He behaved as a guilty person would. Indeed, the mother believed he was guilty, as illustrated by the fact that she changed the house rules regarding nudity and door-locking.

The evidence also strongly suggests that the girl was pressured into recanting her accusations. Both a family friend and a fellow inmate of the defendant’s testified that they heard vehement statements— from the mother and the defendant — about the need to persuade the girl to recant. The friend even heard the mother threaten to “beat” the child if she did not tell the truth. The majority dismisses this testimony because neither the mother nor the defendant explicitly expressed a desire for the child to lie, majority op. at 204-05, and because the family friend had “damaged” credibility. Id. n. 6. Credibility, though, is a jury issue. Moreover, I cannot imagine that two adults trying to cover up sexual abuse would be so foolish as to state directly, in public, that they wanted the victim to lie. Although I concede that their statements could be interpreted as sincere expressions of a desire for the truth, they must be considered in light of what the victim herself said. She told a family friend after her recantation that “it happened” but that “mommy wants to say it didn’t happen.” The jury believed the friend’s testimony, and the record contains corroborative evidence (i.e., the overheard comments by the mother and the defendant) that confirms what the girl said. We have no business questioning that credibility decision.

Like the district court, I acknowledge that this is a close case. Viewing the evidence in the light most favorable to the State, however, as the majority concedes we must, see majority op. at 204, I see no basis for overturning the jury’s verdict. The child’s shocking description of the incident established the elements of the offense; and though it was insufficient by itself to convict the defendant, the other evidence introduced clearly corroborated the child’s story. Combined with her statements, the evidence was sufficient to submit the case to the jury, whose job it was to sort out the conflicting stories and the credibility issues.

I worry that, by deeming the evidence in this case insufficient, the majority will make it virtually impossible to convict sexual offenders whenever the victim recants and no physical evidence is available. This happens with disturbing frequency in child sexual abuse cases. Many such crimes occur without witnesses or physical evidence. It is the child’s word against the adult’s. Many, if not most, child victims are abused by family or close friends. Often, the family will be torn apart if the defendant must spend the rest of his life in prison. Enormous pressure is placed on the child to recant. It is asking for the superhuman to demand that an abused child, lacking corroborating eyewitnesses or physical evidence, persist in her accusations in the face of constant pressure from a sexually abusive adult and an enabling partner (sometimes even a parent).

Of course, some recantations are voluntary and sincere. But the very purpose of juries is to distinguish between the true and the false, between the sincere and the coerced. With no way to view the demeanor of the witnesses during their testimony, appellate courts are poorly equipped for that role. In cases such as this, where corroborating evidence strongly supports the child’s original accusations of sexual abuse and also points toward a forced recantation, we should leave to the jury the responsibility for evaluating witness credibility and arriving at the truth.

Because the majority takes this close ease away from the jury, and usurps the jury’s factfinding function in making credibility determinations, I respectfully dissent.

ANSTEAD and BELL, JJ., concur.

      . This family friend moved into Rachel’s house shortly after the incident in January. The friend remained there until mid-March when she and Rachel had a falling out. Their friendship terminated in a "heated breakup” and Rachel threw the friend out of the house at that time.

      . The State also cross-appealed the trial court's decision to instruct the jury to consider the child hearsay testimony as impeachment rather than as direct evidence. The Second District concluded that the trial court erred in giving the instruction, but that the State’s cross-appeal was moot in light of the district court's decision to affirm Baugh's conviction. Id. at 757. Baugh filed a motion for rehearing, alleging that the district court had piled inference upon inference to conclude that the corroborative evidence was sufficient to sustain his conviction. The Second District denied Baugh's motion for rehearing.

      . In out-of-court statements made by the child in a videotaped interview, the child claimed that Beber placed his mouth on the child’s penis. At trial, the child testified that Beber only touched the child’s penis with his hand. See Beber v. State, 887 So.2d 1248, 1252 (Fla.2004).

      . The statutory definition of sexual battery includes the "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.” § 794.01 l(l)(h), Fla. Stat. (2001).

      . "Direct evidence is that to which the witness testifies of his own knowledge as to the facts at issue. Circumstantial .evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist.” Davis v. State, 90 So.2d 629, 631 (Fla.1956).

      . As the district court noted, the credibility of this former friend was “damaged.” Baugh, 862 So.2d at 761. C.P. testified that she did not like this person and never told her anything about the incident. Additionally, the friend admitted on cross-examination that she suspected Rachel was pressuring C.P. to change her story in late February, but never gave this information to the police or the prosecutor until she was approached by a detective on April 2. In fact, the friend admitted that she had no intention of telling the police or the prosecutor anything and would not have done so if she had not been approached by the detective.

      . Florida recognizes a hearsay exception for statements by a child victim regarding sexual abuse, provided that "the circumstances of the statement provide sufficient safeguards of reliability” and certain other requirements are met. § 90.803(23)(a)(l)., Fla. Stat. (2005). The trial court instructed the jury that the victim’s statements were not admissible as substantive evidence, a ruling that the State cross-appealed. Given the district court's resolution of the case, it deemed it unnecessary to address the State’s cross-appeal. Baugh, 862 So.2d at 767. The majority apparently agrees with the State that the evidence was admissible as substantive evidence. See majority op. at 203.


source: Caselaw Access Project

author: CANTERO, J.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Bill Monroe HEARNS, Respondent.
    No. SC05-2122.
    Supreme Court of Florida.
    April 26, 2007.
    Rehearing Denied July 10, 2007.

      Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, Criminal Appeals and Douglas J. Glaid, Senior Assistant Attorney General, Miami, FL, for Petitioner.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Respondent.
   CANTERO, J.

In this case, we decide whether battery on a law enforcement officer (BOLEO) is a “forcible felony” for purposes of a statute that increases criminal sentences for violent career criminals. We review Hearns v. State, 912 So.2d 377 (Fla. 3d DCA 2005), based on express and direct conflict on two issues. First, the decision conflicts with our decision in Perkins v. State, 576 So.2d 1310 (Fla.1991), on the issue of whether, in determining whether a particular crime is a “forcible felony,” one considers the evidence in the case or only the statutory elements of the offense. Second, the decision conflicts with cases from other district courts of appeal on the question of whether BOLEO is a forcible felony. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. As we explain below, we approve the result in this case, holding that BO-LEO is not a forcible felony, but disapprove part of the district court’s reasoning. Consistent with our decision in Perkins, we hold that, in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular circumstances involved.

I. FACTS AND PROCEDURAL HISTORY

In 2000, Respondent, Bill Monroe Hearns, was convicted of unlawful possession of a firearm by a three-time convicted felon. The trial court designated him a violent career criminal (VCC) under section 775.084, Florida Statutes (2000), and pursuant to that statute sentenced him to life in prison. One of the qualifying offenses on which the trial court relied in designating Hearns a violent career criminal was a 1985 conviction for BOLEO. On direct appeal, the district court affirmed the sentence.

Respondent then filed a motion for post-conviction relief, arguing that BOLEO should not be considered a qualifying offense for VCC sentencing. The trial court denied the postconviction motion and Respondent appealed. The district court initially affirmed the trial court’s denial, but on rehearing it reversed, holding that “[b]attery on a law enforcement officer ... is not invariably a qualified offense for VCC sentencing.” Hearns, 912 So.2d at 379. The district court noted that BOLEO may be committed either through an unwanted touching or by causing bodily harm to a law enforcement officer. Citing our holding in Perkins, 576 So.2d at 1310, the court held that BOLEO is a forcible felony only when it involves bodily harm. The court held that for a BOLEO conviction to qualify as a forcible felony under the VCC statute, the State must prove that the defendant caused bodily harm, rather than mere unwanted touching. Hearns, 912 So.2d at 377. The State sought review in this Court.

II. ANALYSIS

Two issues of conflict arise in this case. The first is the district court’s holding that to obtain a VCC designation based on a conviction of BOLEO, the State may (or must) prove that the circumstances of the particular case involved bodily harm. In Perkins, 576 So.2d at 1310, however, we held that in determining whether an offense constitutes a forcible felony, a court may only consider the statutory elements. The particular circumstances are irrelevant. The second conflict is the district court’s holding that “mere unwanted touching” does not “involve the use or threat of use of physical force or violence.” That holding conflicts with cases from other courts of appeal. See Jenkins v. State, 884 So.2d 1014 (Fla. 1st DCA 2004); State v. Crenshaw, 792 So.2d 582 (Fla. 2d DCA 2001); Brown v. State, 789 So.2d 366 (Fla. 2d DCA 2001); Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000); Branch v. State, 790 So.2d 437 (Fla. 1st DCA 2000).

We resolve these conflicts by (A) examining the relevant statutes involved in this case; (B) reviewing the test we articulated in Perkins for determining whether an offense is a forcible felony; (C) analyzing the conflict among the district courts; and (D) applying our Perkins test to the BO-LEO statute to resolve the conflict between the district courts.

A. The Statutes

Three statutes inform our analysis: those defining battery and criminalizing BOLEO, and the violent career criminal statute. We discuss each in turn.

1. Battery on a Law Enforcement Officer (BOLEO)

Under the Florida Statutes, battery is a crime, but it is not always a felony. Two battery statutes are relevant in this case: simple battery, section 784.03, Florida Statutes (2006), and battery on a law enforcement officer, section 784.07, Florida Statutes (2006). The simple battery statute provides:

(l)(a) The offense of battery occurs when a person:
1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.
(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree.

§ 784.03(1), Fla. Stat. (2006). As can be seen, subsections (l)(a)(l) and (l)(a)(2) describe two distinct levels of force. This distinction is usually irrelevant because the offense is complete regardless of which subsection applies. The difference acquires meaning, however, in the context of VCC sentencing.

When simple battery is committed on a law enforcement officer, it becomes the separate offense of battery on a law enforcement officer, or BOLEO. The BO-LEO statute converts the crime from a first-degree misdemeanor to a third-degree felony:

Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer ... the offense for which the person is charged shall be reclassified as follows:
(b) in the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

§ 784.07(2)(b) (emphasis added). The underlying conduct required for simple battery and BOLEO is identical. The only differences are the status of the victim and the penalty imposed.

2. The VCC and the Forcible Felony Statutes

The violent career criminal statute, section 775.084(l)(d), Florida Statutes (2000), is intended to deter recidivism by imposing longer sentences on repeat offenders. “[T]o be sentenced as a violent career criminal, a defendant must have been previously incarcerated in state or federal prison, must have been convicted three times as an adult of certain violent felonies (listed in the statute), and must have committed another such offense within the above time frame.” Clines v. State, 912 So.2d 550, 553 (Fla.2005). The felonies that qualify for designation as a violent career criminal are:

a. Any forcible felony, as described in s. 776.08;
b. Aggravated stalking ...
c. Aggravated child abuse ...
d. Aggravated abuse of an elderly person ...
e. Lewd, lascivious, or indecent conduct ...
f. Escape ...
g. A felony violation of chapter 790 involving the use or possession of a firearm.

§ 775.084(l)(d)(l) (emphasis added).

The statute does not specifically list BO-LEO, or even battery, as a qualifying offense. Therefore, that crime qualifies only under the catchall provision in subsection (a), and only if it constitutes a “forcible felony, as described in” section 776.08, Florida Statutes (2000). That section defines “forcible felony” as

treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony ivhich involves the me or threat of physical force or violence against any individual.

§ 776.08, Fla. Stat. (2000) (emphasis added). Again, although that section does list some types of battery (sexual battery and aggravated battery), it does not mention BOLEO. Therefore, for BOLEO to qualify as a forcible felony it must fall within the meaning of the catchall clause of the statute — “any other felony which involves the use or threat of physical force or violence against any individual.” Id.

As noted above, by definition BOLEO is a simple battery committed on a law enforcement officer. Under section 784.03, a battery is committed by (a) actually and intentionally touching or striking another person against the will of the other, which may, but need not, involve “the use or threat of physical force or violence;” or (b) intentionally causing bodily harm, which definitely would involve “the use or threat of physical force or violence.” Therefore, BOLEO may or may not be a forcible felony, depending on the circumstances.

B. Our Decision in Perkins

In reversing the defendant’s VCC designation, the district court considered that the State presented no evidence that Hearns’s BOLEO conviction involved the use or threat of force. In Perkins, however, we clarified that the particular circumstances of the case do not matter. In that case, the defendant shot and killed a drug dealer who tried to rob him during a drug sale. The defendant claimed self-defense. The State argued that the defense was not available because at the time of the shooting the defendant was engaged in cocaine trafficking, which, the State argued, was a forcible felony under the final clause of section 776.08. We rejected that argument and articulated a “statutory elements” test for determining whether an offense is a forcible felony within the meaning of the final clause of section 776.08:

The statute does not say that a forcible felony is any felony that “may sometimes” involve violence, or even a felony that “frequently does” involve violence. Rather, the statute requires that the felony actually “involves the use or threat of physical force or violence against any individual.” (emphasis added). § 776.08, Fla. Stat. (1987). Taken in its ordinary and plain meaning, the term “involve” means “to contain within itself, to make necessary as a condition or result.” Oxford American Dictionary 349 (1980). Its general sense is “to include.” Id.
Thus, in the strict and literal sense required by Florida law, this language can only mean that the statutory elements of the crime itself must include or encompass conduct of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of the final clause of section 776.08.

Perkins, 576 So.2d at 1313 (emphasis added). Therefore, Perkins held that for an offense to be a forcible felony under section 776.08, the “use or threat of physical force or violence” must be a necessary element of the crime. If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony.

In this case, the district court acknowledged Perkins, but then created conflict with that case by analyzing not the necessary elements of the crime of BOLEO, but the State’s proof. The court began its analysis by reviewing the elements of the BOLEO statute. It noted that BOLEO may be committed either by intentionally touching a law enforcement officer against his will, or by intentionally causing a law enforcement officer bodily harm. The court held that when BOLEO is committed by intentionally touching a law enforcement officer, it does not involve the use or threat of physical force or violence. Hearns, 912 So.2d at 378. Under Perkins, that is the end of the analysis. By determining that physical force or violence is not a necessary element of BOLEO, the district court determined that BOLEO is not a forcible felony under the VCC statute.

The district court went further, however. It developed its own hybrid test. The court suggested that if the State could prove that Respondent’s BOLEO conviction was based on causing bodily harm, then the conviction could be used as a qualifying offense. Absent evidence of bodily harm, however, the district court held that it must give Respondent the benefit of the doubt and assume he had been convicted for the least violent of the BOLEO elements:

The State has not shown with any certainty (has not shown at all, in fact) whether the battery on a law enforcement officer was a mere unwanted touching, see section 784.08(l)(a), Florida Statutes (1985), or caused bodily harm, see section 784.03(l)(b).... Following Perkins, with no record evidence that Hearn’s conduct against a law enforcement officer was a forcible felony, it cannot be used as a qualifying prior for purposes of VCC sentencing.

Hearns, 912 So.2d at 379.

To the extent the district court held that Perkins allows courts to look beyond the statutory elements of an offense and analyze the evidence in a particular case, the court’s opinion conflicts with Perkins. We disapprove that part of the opinion. We reiterate that the only relevant consideration is the statutory elements of the offense. If “the use or threat of physical force or violence against any individual” is not a necessary element of the crime, “then the crime is not a forcible felony within the meaning of the final clause of section 776.08.” Perkins, 576 So.2d at 1313.

C. Conflict with Other District Courts of Appeal

The second issue of conflict is whether BOLEO is a felony that involves the use or threat of physical force or violence against an individual. In Hearns, the district court held that BOLEO “is not invariably a qualified offense for VCC sentencing” because mere unwanted touching, which is one basis for a battery conviction, does not amount to the “use or threat of physical force or violence.” 912 So.2d at 379; see also Hudson v. State, 800 So.2d 627, 628-29 (Fla. 3d DCA 2001) (holding that the crime of shooting into or throwing deadly missiles into a building, whether occupied or unoccupied (§ 790.19, Fla.Stat.(1997)), does not, by definition, involve physical force or violence against an individual and therefore cannot be a qualifying felony under the VCC statute). This holding conflicts with cases from the First, Second, and Fourth District Courts of Appeal, all of which have held that BOLEO does involve the use or threat of physical force or violence and therefore is a qualifying offense under a similar statute. On this point, we agree with the Third District.

At first blush, the district court’s decision appears reconcilable with the other cases because they involve different statutes. Unlike Hearns, which involved section 776.08, the other districts have decided this issue in the context of the prisoner releasee reoffender (PRR) statute, section 775.082, Florida Statutes (2000). The PRR statute, like the YCC statute, is intended to deter recidivism by imposing longer sentences on repeat offenders. The PRR statute applies to defendants who commit qualifying offenses within three years of being released from a state correctional facility. Like the YCC statute, it lists felonies that qualify for sentence enhancement:

“Prison releasee reoffender” means any defendant who commits, or attempts to commit:
a. Treason;
b. Murder;
c. Manslaughter;
d. Sexual Battery;
e. Carjacking;
f. Home-invasion robbery;
g. Robbery;
h. Arson
i. Kidnapping;
j. Aggravated assault with a deadly weapon;
k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or bomb;
o. Any felony that involves the use or threat of physical force or violence against an individual ... within 8 years of being released from a state correctional facility....

§ 775.082(9)(a)(l), Fla. Stat. (2000).

As with the VCC statute, although the statute specifically names some types of batteries (sexual battery and aggravated battery), it does not mention BOLEO. Subsection (o), however, contains the same language as the final clause of section 776.08: “Any felony that involves the use or threat of physical force or violence against an individual.” We have held that where the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply. See Goldstein v. Acme Concrete Corp., 103 So.2d 202 (Fla.1958). Because the two statutes use identical language, whether BOLEO is a qualifying offense must be answered consistently under both the VCC statute and the PRR statute.

Several cases from the First, Second and Fourth Districts have held that BO-LEO is a qualifying offense under subsection (o) of the PRR statute. None of them, however, analyzes the statute in any depth or compares it to the elements of a BOLEO offense. See, e.g., Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000) (holding that BOLEO is a qualifying offense for sentence enhancement under subsection (o) of the PRR statute without analyzing the statute); Brown v. State, 789 So.2d 366, 367 (Fla. 2d DCA 2001) (relying on Spann in holding that BOLEO is a qualifying offense under the PRR); State v. Crenshaw, 792 So.2d 582, 583 (Fla. 2d DCA 2001) (following Brown); Branch v. State, 790 So.2d 437 (Fla. 1st DCA 2000) (“[BJattery on a law enforcement officer [is] a qualifying offense that falls within the ambit of statutory subsection [775.082(9) ](a)(l)(o), which includes ‘[a]ny felony that involves the use or threat of physical force or violence against an individual.’ ”).

None of these cases explicitly analyzes the BOLEO or the battery statute to determine whether BOLEO is a felony that involves the use or threat of physical force or violence. They simply assume that BO-LEO satisfies this description. One judge, however, did analyze the issue in some depth. In Jenkins v. State, 884 So.2d 1014 (Fla. 1st DCA 2004), although the majority followed its decision in Branch, the dissent argued that BOLEO cannot be a qualifying offense under the PRR statute because it is not necessarily a forcible felony. Id. at 1017 (Ervin., J., concurring and dissenting). Judge Ervin analyzed our decision in Perkins, and although that case involved a different statute, he concluded that “[ujnder the Perkins reasoning, the identical language in the PRR Act means that the elements of a qualifying third-degree felony must encompass the use or threat of physical force or violence. Because unwanted touching under section 784.03(l)(a)(l) may not necessarily be a violent act, it cannot be a qualifying offense for PRR sentencing.” Id. at 1018. We agree with Judge Ervin’s assessment.

D. Resolving the Conflict: Applying Perkins to BOLEO

The Third District has held that BO-LEO does not involve the use or threat of physical force or violence when it is committed by intentionally touching a law enforcement officer. The First, Second, and Fourth Districts have held that BOLEO involves the use or threat of physical force or violence, without exception. We apply the Perkins statutory elements test to resolve the conflict. That test is designed to determine whether an offense involves the use or threat of physical force or violence.

In applying the Perkins test, we analyze the elements of the battery statute from which BOLEO derives its conduct element. See § 784.07, Fla. Stat. (1985). Section 784.03 defines battery as (a) actually and intentionally touching or striking another person against the will of the other; or (b) intentionally causing bodily harm to an individual. Therefore, three separate acts may constitute BOLEO:

(1)actually and intentionally touching a law enforcement officer against his will;
(2) actually and intentionally striking a law enforcement officer against his will; or
(3) intentionally causing bodily harm to a law enforcement officer

Under Perkins, for BOLEO to constitute a forcible felony, all three alternatives must involve the use or threat of physical force or violence. If one of the elements does not, then BOLEO can be committed without the use or threat of physical force or violence, and BOLEO would fail the Perkins test.

Neither party in this case disputes that intentionally causing bodily harm involves the use or threat of physical force or violence. It is also difficult to argue that intentionally striking a law enforcement officer does not involve the requisite level of physical force or violence contemplated by the forcible felony statute. This leaves intentional touching as the conduct element most likely to fail the Perkins test. We must determine whether intentionally touching a law enforcement officer necessarily involves the use or threat of physical force or violence as described in the final clause of section 776.08. If it does not, then BOLEO cannot be a forcible felony.

The State asserts that any intentional touching of a law enforcement officer necessarily involves the use or threat of physical force, “even if only a de minimis amount of such force is used.” (Pet. Br. at 12). The State argues that “the fact that only a very slight amount of physical force is used to accomplish a touching does not negate the fact that physical force is used.” Id. Essentially, the State argues that any physical contact suffices to make BOLEO a forcible felony. The weight of authority contradicts the State’s argument.

Existing case law makes it clear that any intentional touching, no matter how slight, is sufficient to constitute a simple battery. See, e.g., D.C. v. State, 436 So.2d 203, 206 (Fla. 1st DCA 1983) (“[I]t is clear from Section 784.03 that any intentional touching of another person against such person’s will is technically a criminal battery.”); L.D. v. State, 355 So.2d 816, 817 (Fla. 3d DCA 1978) (“[I]t is clear that the force used in criminal battery need not be sufficient to injure”). Therefore, BOLEO, like battery itself, may be committed with only nominal contact.

As Respondent argues, if BOLEO were considered a forcible felony based on its intentional touching element, it could lead to potentially outrageous results. For example, tapping a law enforcement officer on the shoulder without consent would constitute a forcible felony. A child shooting a spitball at a school police officer would be guilty of a forcible felony. The possibilities are limited only by the imagination. But such minor infractions are incompatible with the level of force the forcible felony statute contemplates. The felonies enumerated in section 776.08 include murder, treason, carjacking, home-invasion robbery, arson, kidnapping, discharging of a destructive device or bomb, and aircraft piracy. § 776.08, Fla. Stat. (2006). Merely touching a law enforcement officer is not in the same league.

This reasoning is supported by the canon of statutory construction ejusdem generis, which states that when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type as those listed. See Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1088-89 (Fla.2005). Therefore, the general phrase “any other felony involving the use or threat of physical force or violence” should be interpreted to' include only offenses which involve a level of physical force or violence comparable to that of the enumerated felonies. Id.

We also note that simple battery is a misdemeanor offense and can never be a forcible felony. BOLEO involves the exact same conduct as misdemeanor battery, the only difference being the victim’s status. Yet if BOLEO were to count as a forcible felony, the ramifications would be significant. The maximum punishment a defendant can receive for committing misdemeanor battery against an ordinary citizen is one year in prison. § 775.082, Fla. Stat. (2005). If the same conduct committed against a law enforcement officer is considered a forcible felony, the offense could be used to enhance a defendant’s sentence to life in prison. Such a disparity in sentencing, stemming from the exact same conduct, seems out of proportion.

We also note that the forcible felony statute specifically enumerates two types of battery: aggravated battery and sexual battery. See § 776.08, Fla. Stat. (2006). BOLEO is not among them. Under the canon of statutory construction expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another. Young v. Progressive Southeastern Ins. Co., 753 So.2d 80 (Fla.2000). Had the Legislature intended to include all types of battery as forcible felonies, it would have listed simply “battery” rather than only the specific types enumerated. BOLEO’s absence from the list of enumerated felonies lends further support to the conclusion that BOLEO is not a forcible felony.

III. CONCLUSION

Based on the reasoning above, we approve the district court’s reversal of Respondent’s life sentence because BOLEO is not a forcible felony under section 776.08 and should not have been counted as a qualifying offense for VCC sentence enhancement. We disapprove the district court’s reasoning, however, to the extent it conflicts with the statutory elements test in Perkins. Also, to the extent that the cases from the First, Second, and Fourth District Courts of Appeal hold that BO-LEO is a felony that necessarily involves the “use or threat of physical force or violence,” we disapprove those cases.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, and BELL, JJ., concur.

      . Although this case involves a motion for postconviction relief and not an appeal from a conviction and sentence, the State focuses on the issue of statutory interpretation and does not argue that the respondent has failed to meet the standards for postconviction relief. Therefore, we do not address this issue.

      . This is the most recent version of the simple battery statute. Hearns was convicted under the 1985 version of the battery statute. Although the two versions do not materially differ, the numbering is slightly different. The 1985 version reads:
      784.03 Battery.—
      (1) A person commits battery if he:
      (a) Actually and intentionally touches or strikes another person against the will of the other; or
      (b) Intentionally causes bodily harm to an individual.
      (2) Whoever commits battery shall be guilty of a misdemeanor of the first degree.
      § 784.03, Fla. Stat. (1985).


author: PER CURIAM. ANSTEAD, J.,

text:
    William VAN POYCK, Appellant, v. STATE of Florida, Appellee.
    No. SC05-1513.
    Supreme Court of Florida.
    May 3, 2007.
    Rehearing Denied July 16, 2007.
    Mark Olive, Tallahassee, FL, Benjamin B. Brown of Quarles and Brady, LLP, Naples, FL, Jeffrey O. Davis and Lauri A. Rollings of Quarles and Brady, LLP, Wil-waukee, WI, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia A Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

William Van Poyck, who is under a sentence of death, appeals the denial of his successive motion for postconviction relief. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. The motion relies on an affidavit by a former prison inmate claiming that Van Poyck’s codefendant, Frank Valdes, confessed that he committed the murder for which both he and Van Poyck were sentenced to death. Based on decisions in previous appeals rejecting related claims concerning the identity of the triggerman, including our affirmance in 2005 of the denial of DNA testing, we affirm the trial court’s order.

FACTS AND PROCEDURAL HISTORY

Prior Proceedings

Van Poyck was convicted of first-degree murder and sentenced to death for the killing of correctional officer Fred Griffis. The murder occurred during an attempt by Van Poyck and Valdes to free Van Poyck’s friend, James O’Brien, from a prison van while he was being taken by Griffis and another correctional officer, Steven Turner, to a doctor’s appointment outside prison. Our opinion in Van Poyck’s direct appeal explained the circumstances of the murder:

Griffis, who was not armed, drove the van while Turner watched O’Brien, who was secured in a caged area behind Grif-fis. After Griffis pulled the van into an alley behind the doctor’s office, Turner looked down for his paperwork. Upon looking up, he saw a person, whom he later identified as Van Poyck, aiming a pistol at his head. Van Poyck ordered Turner to exit the van. At the same time, Frank Valdez, an accomplice of Van Poyck’s, went to the driver’s side of the van. Turner testified that Van Poyck took his gun, ordered him to get under the van, and kicked him while he was attempting to comply with Van Poyck’s order. He testified that, while under the van, he saw Griffis exit the van; he noticed another person forcing Griffis to the back of the van; and, while noticing two sets of feet in close proximity to the rear of the van, he heard a series of shots and saw Griffis fall to the ground. Turner further stated that Van Poyck had stopped kicking him when the gunfire started, but noted that he did not know where Van Poyck was at the time of the shooting. Griffis was shot three times, once in the head and twice in the chest. Expert testimony indicated that the shot to the head was fired with the barrel of the gun placed against Griffis’ head and that each of the wounds would have been fatal. It was also determined that the murder weapon was a Hungarian Interarms nine millimeter semiautomatic pistol.

Van Poyck v. State, 564 So.2d 1066, 1067 (Fla.1990) (Van Poyck I).

The jury found Van Poyck guilty of first-degree murder and, at the conclusion of the penalty phase, recommended the death penalty by a vote of eleven to one. The trial court found four aggravating factors and nothing in mitigation. Concerning Van Poyck’s role in the murder, the court found:

Mr. Van Poyck is an individual who is quite intelligent and very knowledgeable as to the law and that he himself admits that he was well aware of the law including felony murder, that he himself was the individual who planned this operation who retained Mr. Valdez to assist him and who checked the guns on the way to the location where this murder occurred to see to it that they were loaded. By all evidence Mr. Van Poyck was a major participant in this murder.
The Court further finds that the State clearly presented competent and substantial evidence as to the crime of first degree felony murder and or first degree premeditated murder and in reality presented competent evidence that Mr. Van Poyck may have in fact been the individual who pulled the trigger and shot Fred Griffis.

Van Poyck was sentenced to death.

This Court affirmed Van Poyck’s murder conviction and death sentence. We concluded that the conflicting evidence on Van Poyck’s whereabouts when Griffis was shot rendered the evidence legally insufficient to prove premeditated murder. Van Poyck I, 564 So.2d at 1069. However, we rejected Van Poyck’s claim that he “was a minor actor and did not have the culpable mental state to kill” required for imposition of the death penalty on a defendant who was not the actual killer. Id. at 1070. We stated:

Although the record does not establish that Van Poyck was the triggerman, it does establish that he was the instigator and the primary participant in this crime. He and Valdez arrived at the scene “armed to the teeth.” Since there is no question that Van Poyck played the major role in this felony murder and that he knew lethal force could be used, we find that the death sentence is proportional.

Id. at 1070-71.

Subsequently, this Court affirmed the denial of Van Poyck’s initial motion for postconviction relief. Van Poyck v. State, 694 So.2d 686 (Fla.1997) (Van Poyck II). Among other issues addressed, we rejected Van Poyck’s claim that “the judge and jury weighed the invalid aggravating factors that the murder was premeditated or that Van Poyck was the triggerman,” concluding that the challenge to the conviction for premeditated murder was resolved in the direct appeal. Id. at 698 & n. 6.

The United States District Court for the Southern District of Florida denied Van Poyck’s petition for a writ of habeas corpus, and the Eleventh Circuit affirmed. See Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318 (11th Cir.2002) (Van Poyck III). The Eleventh Circuit addressed two issues relevant to the current proceedings. The first issue was whether Van Poyck’s trial counsel was ineffective in failing to present evidence that Valdes’ clothing had blood matching Griffis’s blood type, that Valdes’ girlfriend purchased the murder weapon, and that the murder weapon was in Valdes’ possession when he and Van Poyck left to commit the crime. The Eleventh Circuit concluded that although this Court had not addressed the issue, it could reasonably have found that Van Poyck suffered no prejudice from any deficiency. Id. at 1325. The Eleventh Circuit observed that the State presented no evidence at the penalty phase that Van Poyck was the triggerman, and that although the prosecutor suggested several times in closing argument that Van Poyck killed Grif-fis, its case for the death penalty rested mainly on the four aggravating factors and Van Poyck’s role as a major participant in the underlying felony. Id. at 1325-26. The Eleventh Circuit stated:

Especially because the prosecutor’s main argument was that the death penalty was appropriate regardless of who the triggerman was, we see no reasonable probability that, if Counsel had presented the additional evidence that Petitioner was not the triggerman, the outcome of the sentencing phase would have been different. The Florida Supreme Court could reasonably conclude that no prejudice existed. The Florida Supreme Court did reasonably conclude that the triggerman-evidence claim entitled Petitioner to no relief.

Id. at 1326.

The Eleventh Circuit also rejected Van Poyck’s claim that the jury and trial court improperly considered evidence that Van Poyck was the triggerman. The court concluded that because the evidence of premeditation was insufficient, it had “no good reason to think that the jury relied on something more than the factually supported theory of felony murder.” Id. at 1329. The Eleventh Circuit also noted that “whether [Van Poyck] was actually the triggerman was of only minimal importance during the prosecutor’s closing.” Id. Finally, the Eleventh Circuit concluded that the trial court’s statement that the State presented competent evidence that Van Poyck may have been the triggerman “does not mean that the trial court had found, beyond a reasonable doubt, that Petitioner was the triggerman. And, it certainly does not mean that the trial court relied upon Petitioner’s role as triggerman as some kind of aggravating factor.” Id. at 1330.

In 2005, this Court affirmed the trial court’s denial of Van Poyck’s request under Florida Rule of Criminal Procedure 3.853 for DNA testing of clothing Valdes and Van Poyck were wearing when Griffis was killed. See Van Poyck v. State, 908 So.2d 326, 330 (Fla.2005) (Van Poyck IV). Citing to the Eleventh Circuit opinion in Van Poyck III, we relied on the lack of emphasis on the identity of the triggerman in the penalty phase and the trial court’s sentencing order. We also pointed to our conclusion in the direct appeal that Van Poyck was the instigator and a major participant in the crime. We concluded that “there is no reasonable probability that Van Poyck would have received a lesser sentence had DNA evidence establishing that he was not the triggerman been presented at trial.” Id.

Current Proceedings

In 2005, while his appeal in Van Poyck IV was still pending, Van Poyck filed a successive motion for postconviction relief asserting that an affidavit by a prison acquaintance of Valdes constituted newly discovered evidence. In the affidavit, Enrique Diaz stated that between 1990 and 1997, Valdes “repeatedly and consistently” said he had shot and killed Griffis. Diaz explained that he delayed reporting these conversations until he was released from prison in August 2004 because he feared for his life, a concern that was “reinforced when F.S.P. guards murdered Frank Valdes in his cell while [he] was there at F.S.P.”

The trial court denied Van Poyck’s motion without an evidentiary hearing, finding that it was untimely, that the Diaz affidavit did not constitute newly discovered evidence, and that “all of the defendant’s grounds for relief have been fully addressed” in the opinions of this Court and the Eleventh Circuit. Van Poyck appeals from that order. He recognizes that our decision in Van Poyck IV is controlling, but asks us to reconsider that decision.

ANALYSIS

Governing Standards

Florida Rule of Criminal Procedure 3.851 governs the timeliness of, and necessity of an evidentiary hearing on, successive postconviction motions in final capital cases. Rule 3.851(d)(1) bars a postconviction motion filed more than one year after a judgment and sentence are final. An exception to this rule permits otherwise untimely motions if the movant alleges that “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence.” Fla. R.Crim. P. 3.851(d)(2)(A). Rule 3.851(f)(5)(B) permits denial of a successive postconviction motion without an evidentiary hearing “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief.”

This Court’s precedent provides the criteria for obtaining a new capital penalty phase based on newly discovered evidence. In addition to demonstrating that the evidence could not have been discovered previously through the exercise of due diligence, the defendant must establish that the newly discovered evidence probably would have produced a life sentence. Ventura v. State, 794 So.2d 553, 571 (Fla.2001); see also Jones v. State, 591 So.2d 911, 915 (Fla.1991) (“[T]he newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.”); Scott v. Dugger, 604 So.2d 465, 468 (Fla.1992) (“The Jones standard is also applicable where the issue is whether a life or death sentence should have been imposed.”).

Because the trial court denied Van Poyck’s motion solely on the basis of the pleadings, making a legal rather than a factual determination, this Court evaluates each of these matters de novo. See State v. Coney, 845 So.2d 120, 137 (Fla.2003) (holding that “pure questions of law” that are discernible from the record “are subject to de novo review”).

Timeliness and Due Diligence

Apart from stating that the information in the Diaz affidavit was not newly discovered, the trial court made no findings as to whether Van Poyck could have obtained the information earlier with the exercise of due diligence. In its response below, the State declined to assert this as a ground for denying Van Poyck’s motion. The State also did not press the untimeliness of Van Poyck’s motion as a basis for affir-mance. Consequently, we accept the statement in the Diaz affidavit that he did not come forward sooner for fear of his life, and conclude that the motion, files, and records do not conclusively show that Van Poyck’s newly discovered evidence claim is untimely under rule 3.851.

Probability of a Life Sentence

In denying Van Poyck’s motion, the trial court pointed out that opinions of this Court and the Eleventh Circuit have “essentially held that even though the defendant was not the ‘triggerman,’ the imposition of the death penalty was fair, just, and proportional.” The trial court made no finding on the dispositive question of whether the contents of the affidavit, if taken as true, would probably produce a sentence of life imprisonment as the sole alternative to the death penalty.

On the question of whether the new evidence, if believed, would probably yield a life sentence, Van Poyck IV is controlling. There, relying on Van Poyck I and Van Poyck III, we determined that new evidence on the identity of the triggerman would not create a reasonable probability of a lesser sentence. 908 So.2d at 330. The “reasonable probability” standard from rule 3.853, which we applied in Van Poyck IV to affirm the denial of DNA testing, actually presents a lower hurdle for defendants than the Jones standard governing Van Poyck’s current claim.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court adopted the prejudice standard of a reasonable probability of a different result for claims of ineffective assistance of counsel and rejected the higher standard governing newly discovered evidence claims. In distinguishing the two tests of prejudice, the Court stated that “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.... A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The Jones standard for newly discovered evidence requires that the new evidence be such that it would probably produce an acquittal or a sentence of life imprisonment on retrial. Having decided in Van Poyck IV that new evidence showing that Valdes was the trig-german would not create a “reasonable probability” of a different result, we are bound to conclude here that different evidence on the same fact would not “probably” create a different result.

Recognizing that Van Poyck IV is controlling as to his current claim, Van Poyck asks us to reconsider that decision. He relies in part on several opinions in which this Court noted the importance of trig-german status on the death-sentencing decision, and on a recent United States Supreme Court decision concerning new evidence on the identity of the triggerman in a capital case. We conclude that none of these decisions compels us to recede from Van Poyck IV.

In Barrett v. State, 649 So.2d 219 (Fla.1994), we reversed a first-degree murder conviction for a new trial on a different issue and ruled that the defendant could not be sentenced to death on remand because the trial court erred in overruling a life recommendation that could have rested in part on the jurors’ conclusion that a codefendant committed the murder. Id. at 223. Similarly, in Cooper v. State, 581 So.2d 49 (Fla.1991), this Court reversed the trial court’s override of a jury’s life recommendation, noting that the evidence supporting the trial court’s determination that the defendant committed the killing was “far from certain” and that “[c]onflict-ing evidence on the identity of the actual killer can form the basis for a recommendation of life imprisonment.” Id. at 51.

In Downs v. State, 572 So.2d 895 (Fla.1990), this Court ruled that the trial court committed error, albeit harmless, when it excluded testimony in a new penalty phase that corroborated other testimony indicating that the defendant was not the trigger-man. Id. at 899. The Court considered this evidence relevant to the circumstances of his participation in the crime, which, if true, would have been valid mitigation under the “minor participation” statutory mitigator. Id. (citing to § 921.141(6)(d), Fla. Stat. (1975)). In Zerquera v. State, 549 So.2d 189 (Fla.1989), the Court reversed a murder conviction because the trial court erroneously sustained objections to testimony that bullets of the same caliber used in the killing were discovered in a codefendant’s belongings. Id. at 191-92. Dissenting in part, Justice Grimes stated that he would have granted only a new penalty phase. He concluded that “the question of who did the actual shooting directly bears on whether Zerquera should receive the death penalty.” Id. at 193 (Grimes, J., concurring in part and dissenting in part).

In this case, unlike Barrett and Cooper, in which the jury recommended a life sentence, the trial court followed an eleven-to-one jury recommendation in imposing the death penalty. Further, unlike Downs and Zerquera, the issue here does not concern evidence on the identity of the triggerman excluded by the trial court. These decisions do not compel reconsideration of the Court’s 2005 decision in this case or an evidentiary hearing on the present newly discovered evidence claim.

In reaching this conclusion, we consider our recent decision in Diaz v. State, 945 So.2d 1136 (Fla.2006), which presented the same issue we now face here. In Diaz, this Court affirmed the summary denial of a newly discovered evidence claim based on an affidavit bearing on the identity of the triggerman in a case involving codefen-dants. The affiant was a fellow prisoner, Gajus, who had testified against Diaz at trial. Id. at 1146. The Court noted that the affidavit “[did] not recant his trial testimony on the critical issue of whether Diaz made a statement about being the shooter,” but concluded that “even if the Gajus affidavit was considered a recantation of the trial testimony, it would not probably yield a less severe sentence.” Id. at 1146-47.

In Diaz, the Court relied on its determination in the direct appeal that Diaz’s actions made death a proportional punishment under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), and on the postconviction court’s specific finding “that in the sentencing order the trial judge indicated that whether Diaz was the shooter did not impact the final sentence.” Diaz, 945 So.2d at 1147. We also quoted with approval the sentencing order’s explanation for rejecting the statutory mitigator that the defendant was a minor participant in the crime. Id.

As in Diaz, the trial court in this case found that the death penalty was justified for Van Poyck independent of evidence regarding the identity of the triggerman. The trial court noted that Van Poyck checked the guns to ensure that they were loaded while traveling to the location where the murder occurred, and concluded that “[b]y all evidence Mr. Van Poyck was a major participant in the murder.” At most, non-triggerman status would have constituted nonstatutory mitigation which, considering the four aggravating factors and absence of other mitigation, would probably not have yielded a lesser sentence.

Finally, we address Van Poyck’s reliance on Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005). In that case, Stumpf pled guilty to a capital murder committed during a robbery. Id. at 179, 125 S.Ct. 2398. The State argued in Stumpfs sentencing proceeding that he was the triggerman in a murder committed during a robbery, and obtained a sentence of death. As in this case, the prosecutor also asserted that the death penalty was appropriate even if Stumpf was not the shooter, “because the circumstances of the robbery provided a basis from which to infer Stumpfs intent to cause death.” Id. at 180, 125 S.Ct. 2398. Subsequently, the State obtained information after Stumpf was sentenced that the codefendant, Wesley, admitted to a fellow inmate that he had shot the victim. The prosecution used the inmate’s testimony to seek the death penalty in Wesley’s trial. Wesley countered this evidence by pointing to the prosecutor’s contradictory position in Stumpfs trial and Stumpfs resulting sentence of death. Wesley was sentenced to life imprisonment. Id.

The Supreme Court determined that “the precise identity of the triggerman was immaterial to Stumpfs conviction for aggravated murder” and reversed the Sixth Circuit’s decision voiding Stumpfs guilty plea based on the new evidence. Id. at 187, 125 S.Ct. 2398. However, the Court determined that “it is at least arguable that the sentencing panel’s conclusion about Stumpfs principal role in the offense was material to its sentencing determination.” Id. Because the Court found that it was “not clear whether the Court of Appeals would have concluded that Stumpf was entitled to resentencing had the court not also considered the conviction invalid,” it remanded for reconsideration of the effect of the inconsistencies on the sentence. Id.

Bradshaw is largely limited to its facts and procedural posture. Its mandate was simply to reconsider the effect of the new evidence on the sentence, an issue the lower court had not reached because it had erroneously reversed the conviction. In addition, Bradshaw involves a due process claim grounded in inconsistent positions taken by the prosecution in trials of code-fendants, which is not an aspect of this case. To the extent that Bradshaw has any bearing on this case, it stands for the proposition that new evidence concerning the identity of the triggerman is “material” to a death sentencing determination. This Court’s 2005 opinion in this case includes the same acknowledgment:

We do not hold ... that it makes no difference in the capital sentencing process which of two codefendants actually committed the killing. Rather, we determine only that under the circumstances of this case involving a murder of a prison guard in a brutal armed attack planned by Van Poyck and carried out with Valdez, DNA evidence indicating that Van Poyck was not the triggerman would not have created a reasonable probability of a lesser sentence.

Van Poyck IV, 908 So.2d at 330. Therefore, Bradshaw does not require reconsideration of the 2005 decision.

CONCLUSION

The issue before us is whether Van Poyck is entitled to an evidentiary hearing on his claim asserting newly discovered evidence that Valdes was the triggerman in the murder of Griffis. We conclude that he is not. In Van Poyck I, we determined that Van Poyck’s death sentence was a proportional punishment even though the evidence of premeditation was insufficient because the evidence was inconclusive on Van Poyck’s whereabouts during the murder. In Van Poyck II, we rejected his claim that the jury and trial court invalidly considered as nonstatutory aggravation that the murder was premeditated or that Van Poyck was the triggerman, concluding that the issue had been resolved on direct appeal. In Van Poyck III, the United States Court of Appeals for the Eleventh Circuit concluded that additional evidence that Valdes was the triggerman would not have changed the outcome of the penalty phase. Finally, in Van Poyck IV, we ruled that DNA evidence proving that Valdes was the triggerman would not have created a reasonable probability of a different sentence for Van Poyck. Based on these decisions, particularly Van Poyck IV, which relies on the others and to which we adhere, we conclude that testimony by a former fellow inmate that Valdes confessed to being the triggerman in Griffis’s murder probably would not have yielded a life sentence for Van Poyck. Accordingly, we affirm the trial court’s summary denial of his successive motion for postconviction relief.

It is so ordered.

LEWIS, C.J., and WELLS, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

ANSTEAD, J., dissents with an opinion.

ANSTEAD, J.,

dissenting.

I cannot agree with the majority that appellant’s claim of new evidence does not merit a trial court hearing to evaluate its credibility and its weight, as well as its potential impact on his sentence of death.

Previously, this Court has rejected as immaterial appellant’s claim that DNA evidence would demonstrate that he was not the actual killer in the homicide for which he has been sentenced to death. The appellant has now returned to this Court with essentially the same claim, but with substantial additional evidence that he was not the killer. He concedes that such evidence would not affect his conviction for first-degree murder, but asserts that it could affect his sentence of death. For the same reasons set out in my previous dissent, I cannot join in the majority’s analysis and conclusion summarily rejecting this assertion:

We need only examine the trial record in this case to see explicit proof that the identity of the triggerman was both important and at issue in the jury’s assessment of the appropriate penalty for Van Poyck. In this case, the prosecutor expressly argued to the jury during the penalty phase: “So again, it is important who the triggerman is. There is no doubt about it. It’s important to your deliberations, okay.” Subsequent to those statements the prosecutor told the jury: “So ladies and gentlemen, even though he says he was not the trigger-man, I submit the evidence shows that he was, because the only eyewitness we have that actually saw the guns well enough to identify is Officer Turner. He is the one left alive here to tell you who had what gun.” [n-5] Thus, there can be no doubt that the prosecution, in seeking the death penalty, asserted to the jury first, that it was important in their deliberations on the penalty to determine who the triggerman was, and, second, in this case, the evidence supported a determination that the defendant was the triggerman. The jury, of course, after this argument, returned with a recommendation for death.1"-63
[N.5.] In addition, the trial court stated in its sentencing order:
The Court further finds that the State clearly presented competent and substantial evidence as to the crime of first degree felony murder and or first degree pre-meditated murder and in reality presented competent evidence that Mr. Van- Poyck may have in fact been the individual who pulled the trigger and shot Fred Griffis.
[N.6.] This, of course, is the same jury that we determined was in error in finding the defendant guilty of premeditated murder.
On the face of this record how can we possibly now conclude that the identification of the triggerman is irrelevant to the determination of whether the death penalty should be imposed? The prosecutor has already answered that question for us. The majority has chosen to deal with a hypothetical situation: could the death penalty be imposed on a non-triggerman, rather than dealing with the actual situation presented here where the State sought the death penalty, asserting as grounds that the defendant was the triggerman, and the jury returned with a vote for the death penalty.

Van Poyck v. State, 908 So.2d 326, 331-32 (Fla.2005) (Anstead, J. dissenting). Once again, the majority has erroneously predicated its summary rejection on the hypothetical situation of a case for the death penalty based solely upon the defendant’s participation in the underlying felony offense of escape, rather than confronting the actual circumstances of this case, which included a prosecution claim that Van Poyck was the actual killer. The majority has essentially substituted its views for those of a sentencing jury in concluding that the identity of the actual killer would make no difference to a jury considering life or death.

      . The codefendant's name is alternatively spelled "Valdez” in some court documents.

      . The aggravators were: (1) the murder was committed while Van Poyck was under a sentence of imprisonment, (2) Van Poyck was previously convicted of violent felonies, (3) Van Poyck knowingly placed many persons at great risk, and (4) the murder was committed to effect an escape.

      . Van Poyck raised the issue of consideration by the jury and the trial court of evidence that he was the triggerman again in a petition for a writ of habeas corpus. We denied the petition and concluded that the claim was procedurally barred because it was raised and rejected in the direct appeal and determined to be procedurally barred in the postconviction appeal. Van Poyck v. Singletary, 715 So.2d 930, 931 (Fla.1998).

      . In the opinion in Valdes' direct appeal from his conviction and sentence of death, this Court again recounted the testimony by Turner that he could not tell who shot Griffis. Valdes v. State, 626 So.2d 1316, 1318 (Fla.1993). The Court found substantial, competent evidence to support the trial court’s rejection of the mitigator of minor participation by an accomplice, and stated that its characterization of Van Poyck as the major participant "[did] not mean Valdes’ participation was minor.” Id. at 1324.