James Robert Gallagher v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: May 21, 2019
• Docket: 16-4521
• Status: Published

Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D16-4521 _____________________________

JAMES ROBERT GALLAGHER,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Jack Schemer, Judge.

May 21, 2019

PER CURIAM.

Appellant challenges his conviction for two counts of sexual battery of a child—his own biological daughter—when she was between age six or seven, and ten or eleven. We have examined in full and on the merits the four issues he raises on appeal, and find no merit in them. In addition, we find that Appellant failed to preserve his argument that the trial court erred by failing to make an express finding that the State proved by clear and convincing evidence Appellant’s similar abuse of two other girls. Appellant does not challenge the sufficiency of the evidence, and the record does not indicate that the trial court was unaware of the standard. See McLean v. State, 934 So. 2d 1248, 1261-62 (Fla. 2006) (requiring clear and convincing evidence of prior acts of child molestation). Accordingly, we AFFIRM. ROWE, BILBREY, and KELSEY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender; and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.