Jory v. State

• Decision Date: 03 June 1994
• Docket Number: No. 92-1737,92-1737
• Parties: 19 Fla. L. Weekly D1217 Victor Raymond JORY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 152

647 So.2d 152

19 Fla. L. Weekly D1217

Victor Raymond JORY, Appellant, v. STATE of Florida, Appellee.

No. 92-1737.

District Court of Appeal of Florida,

Fifth District.

June 3, 1994.

Rehearing Denied Jan. 6, 1995.

Jeffrey G. Thompson of Lovering, Vance & Thompson, Cocoa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Mark S. Dunn, Asst. Atty. Gen., Daytona Beach, for appellee.

GOSHORN, Judge.

Jory appeals from the sentences imposed after he was convicted of ten counts of lewd and lascivious assault on a child under the age of 16 years, ¹ one count of promoting a sexual performance by a child under the age of 18 years, ² and one count of using a child under the age of 18 years in a sexual performance. ³ For the ten counts of lewd and lascivious assault, he received the maximum possible statutory sentence ⁴ of 15 years each, to run consecutively, followed by two consecutive 15 year terms on probation for the two promoting and using counts. The total is thus 150 years in prison followed by 30 years of probation. Jory argues on appeal that the trial court's written reasons for departing upwards from the sentencing guidelines recommended sentence of 17 to 22 years, and the permitted bracket of 12 to 27 years, are either improper or not supported by the record. ⁵ We disagree and affirm.

The crimes for which Jory was charged and convicted arose out of a single episode during which Jory had sex with a 15 year old boy. ⁶ The sexual encounter was videotaped by an unknown third person. The police later seized the tape after a citizen complained that Jory was selling child-pornographic tapes and materials. The tape formed the sole basis for this prosecution.

The trial court gave a number of reasons for departing upwards from the sentencing guidelines, one of which we find is supported by a preponderance of the evidence and provides a valid basis for the departure sentence. The trial court wrote:

4) THE DEFENDANT IS NOT AMENABLE TO REHABILITATION AND POSES A DANGER TO SOCIETY.

This ground is found to exist beyond every reasonable doubt, without regard to the defendant's prior record. See Louissa[i]nt v. State, 576 So.2d 316 (5th DCA 1990). The defendant's comments before this Court clearly show that the defendant sees nothing wrong with his conduct in this case. He is unable to perceive any reason to change. The defendant views his conduct to be lawful and blames a system that is "prejudicial against homosexuals" for his plight.

The facts show that the defendant preys upon young boys from broken homes, who lack a father figure in their lives. Somehow, the defendant is able to induce these children to participate in his world of perversion and crime.

This defendant is not amenable to reasonable rehabilitation. See Busby v. State, 556 So.2d 1208 (1st DCA 1990); Mendenhall v. State, 511 So.2d 342 (5th DCA 1987).

Jory is unequivocal in his stance that he has done nothing illegal and that the State's pursuit of the case stems from a "life-style persecution, a classic example of homophobia...." Jory's recorded statements make clear his belief that because the minor male does not feel victimized, there was no victim and thus no crime. Unfortunately for Jory, the victim's feelings or consent to the acts are not affirmative defenses to the criminal offenses of which Jory was convicted, at least under the current law in this state. Jory's persecution argument also misses the point. It is his illegal sexual involvement with a minor that is targeted, nothing more. While it is true that Jory would have been acquitted of violating section 800.04 had the jury believed the victim's testimony that he was 16 when he had sex with Jory, the fact remains that the jury determined otherwise and the evidence supports its finding.

In Whitehead v. State, 498 So.2d 863 (Fla.1986), the supreme court held that evidence indicating that a defendant poses a future danger to society "can clearly be considered justification for a departure from the recommended sentence," where that evidence is not already scored on the guidelines scoresheet. Id. at 865. Here, Jory's statements clearly indicate that he does pose a real future danger to society. No other conclusion can be reached after considering Jory's own philosophy that oral and anal intercourse with a minor is not "wrong" and should not be prosecuted as a criminal offense as long as the minor does not come away from the encounter feeling victimized.

Jory's own comments allow a distinction to be made between this case and those cases holding that departure is invalid if based on the mere speculation or conjecture that the defendant will again engage in criminal conduct. See, e.g., Odom v. State, 561 So.2d 443, 445 (Fla. 5th DCA 1990) (holding that potential for reoccurrence is not an adequate basis for departure); Dixon v. State, 492 So.2d 410, 411 (Fla. 5th DCA 1986) (holding that judge's belief that defendant would strike again was an invalid departure reason because it was based solely on speculation). Jory is clearly a threat to our young people as he has an avowed intention not to be rehabilitated because he perceives his actions to be proper and legal.

AFFIRM.

PETERSON, J., concurs.

W. SHARP, J., dissents, with opinion.

W. SHARP, Judge, dissenting.

I respectfully dissent. The fundamental problem in this case is that a person convicted of statutory rape ¹ of a sexually mature and willing child victim is being punished far more harshly than many murderers and violent rapists, and certainly other statutory rapists. When the record evidence in this case is boiled down past the rhetoric and hyperbole, I can only conclude that the sole reason for this gross departure sentence--a total of 150 years in prison, followed by 30 years on probation--is because the statutory rape was homosexual rather than heterosexual.

Florida's sexual battery statutes are gender-neutral. Private homosexual acts between consenting adults apparently are not criminal by themselves. ² Thus, I can not agree Jory's departure sentence should be sustained. It is simply a matter of achieving equal justice under the law.

Jory argues on appeal that the trial court's written reasons for "departing" upwards from the sentencing guidelines recommended sentence of seventeen to twenty-two years and the permitted bracket of twelve to twenty-seven years, are either improper or not supported by the record. He also urges that the punishment imposed for his crimes is so extremely harsh and grossly disproportionate as to violate Florida's constitutional prohibition against cruel or unusual punishment. ³ Because I agree with Jury's first argument, I do not reach the second. ⁴ In this case the crimes for which Jory was charged and convicted arose out of a single episode during which Jory had sex with a sexually mature fifteen-year-old boy. The approximately twenty-minute sexual encounter was videotaped by an unknown third person. The tape was later seized by the police after a citizen complained that Jory was selling child-pornographic tapes and materials. The tape formed the sole basis for this prosecution.

The boy-victim testified at trial that he was actually sixteen when the tape was made, and that he consented to the sex acts which were filmed. Another friend, not Jory, persuaded him to participate. Had he proved to be sixteen years old, consent would have been a complete defense to the ten sexual assault counts. A viewing of the tape, which is part of the record on appeal, shows no force or violence was used by Jory. The boy-victim suffered no apparent physical injury.

The trial court gave five reasons for departing upwards from the sentencing guidelines: 1) premeditation and calculation; 2) the particular facts of the case; 3) inducing others to participate in the commission of a crime; 4) defendant is not amenable to rehabilitation and poses a danger to society; and 5) the defendant's escalating pattern of criminal conduct. I shall consider each below.

1. Premeditation & Calculation

The trial court stated:

This reason for departure is not an inherent component of the crimes charged in Counts I through X of the Information. The defendant was convicted of ten counts of lewd and lascivious acts upon a child under section 800.04(2), Florida Statutes (1987) which read "any person who commits an act as defined as sexual battery under section 794.011(1)(h) upon a child under age of sixteen ..." In Lerman v. State, 487 So.2d 736 (Fla.1986), [Lerma v. State, 497 So.2d 736 (Fla.1986) ] the Florida Supreme Court held that calculation or premeditation is not an inherent component of the crime of sexual battery.

* * * * * *

In the instant case, the evidence showed that the defendant carefully planned, promoted and starred in the video taping of child pornography. He clearly intended to use the final product in connection with a perverse plan to sell or distribute same in the corrupt world of child pornography.

A view of the subject video tape shows that the defendant was in total control of the production and that each sexual act was carefully planned and choreographed by the defendant. Such acts show heightened premeditation planning and calculation that sets this crime apart from ordinary criminal conduct. See Hallman v. State, 560 So.2d 223 (Fla.1990).

Hallman was an appeal from a death sentence, in which the trial judge overturned the jury's recommendation of a life sentence. The supreme court held there were not sufficient aggravating circumstances in that case to overcome the reasonableness of the jury's recommendation of life. See Tedder v. State, 322 So.2d 908 (Fla.1975). Hallman also received a departure sentence for the non-capital offense of robbery and kidnapping in that case, and one of the reasons given was premeditation. The court held the circumstances in Hallman were insufficient to justify a departure on that basis. It explained:

While many crimes can be said to be premeditated,...