A sharply divided appeals court Wednesday ordered a new trial for a man convicted in a 2017 sexual battery of a Florida State University student after she had been out drinking with friends.
A panel of the 1st District Court of Appeal said a recording of a call that the student made to police was improperly admitted into a trial that resulted in the conviction of Andrew Schluck on charges of sexual battery and burglary.
Schluck, who was 40 at the time, went into a dorm building with the student and one of her friends shortly before 3:30 a.m. The student, who was a 19-year-old freshman, called university police a little more than four hours later and said she thought she had been raped in her dorm room, according to Wednesday’s ruling.
A majority of the appeals court agreed with Schluck’s argument that a circuit judge should not have admitted the recording into the trial because it was improper hearsay.
“Here, the recording was the only direct evidence of the victim’s lack of consent and the only evidence where the jury heard directly from the victim, who was distressed in the recording and reported that she had been raped,” said the majority opinion, written by Judge Thomas Winokur and joined by Judge Timothy Osterhaus. “In spite of other evidence that supported the state’s contention that the victim did not consent, it cannot show that there is no reasonable possibility that the recording contributed to the verdict. For these reasons, we reverse and remand for a new trial.”
But Judge Scott Makar wrote a 19-page dissent that gave a detailed account of the case and said the circuit judge had discretion to allow the jury to hear the recording. He also noted that Schluck, who was not a student, had received a trespass notice from FSU police in 2015 that barred him from campus.
“All of the evidence supports the jury’s finding that the encounter was non-consensual, meaning that ‘intelligent, knowing, and voluntary consent’ was lacking,” Makar wrote. “Even without the victim’s statement, the totality of the evidence easily demonstrates that a 40-year-old stranger (subject to a university restraining order) was lurking at 3 a.m. outside a dormitory which he illegally entered to commit a non-consensual sexual assault on an incapacitated university freshman; the jury’s verdict was just.”
Schluck was sentenced to 15 years in prison and is an inmate at Jefferson Correctional Institution, according to the state Department of Corrections website.
