Mark Thomas Judkins v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2024-2610
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MARK THOMAS JUDKINS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.
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On appeal from the Circuit Court for Alachua County.
Peter K. Sieg, Judge.

June 3, 2026

WINOKUR, J.

Mark Judkins was convicted after jury trial of domestic
battery by strangulation and false imprisonment. At trial, the
court denied Judkins’ motion to exclude an audio recording of him
made without his consent. Finding that the recording should have
been excluded, we reverse.

In November 2022, Judkins was arrested and charged with
domestic battery by strangulation and false imprisonment. At the
time, he had been in a relationship with Brenda Coker for
approximately ten years. During their relationship, Coker and her
minor daughter, E.K., lived with Judkins in a small mobile home.
On November 25, 2022, while E.K. was in her bedroom,
Judkins and Coker began arguing in the living room. During the
argument, E.K. heard Judkins threaten to kill Coker. In response,
she began audio recording the altercation on her laptop. The
recording captured Judkins repeatedly threatening to kill Coker,
including statements such as, “I will choke the life out of your body
and bury your ass in a fu**ing chicken coop … I like that idea.”

As the argument escalated, E.K. left her bedroom and
observed Judkins with his hands around Coker’s neck. Although
Coker later testified that she remembered little of the incident, she
recalled Judkins pulling her hair and pinning her down on a
recliner. After the altercation, E.K. emailed the audio recording to
Judkins’ sister, Kimberly Walker. Walker forwarded the audio file
to the Alachua County Sheriff’s Office. A detective subsequently
arrested Judkins.

Before trial, Judkins filed a motion in limine seeking to
exclude the audio recording. He argued that because the recording
was made inside his home without his knowledge or consent, it
violated section 934.03 of the Florida Statutes, which criminalizes
the intentional interception, disclosure, or use of intercepted oral
communications and generally prohibits such communications
from being admitted into evidence.

The trial court denied the motion, reasoning that, to qualify
as a protected “oral communication” under the statute, the speaker
must have both a subjective expectation of privacy and “societal
recognition that the expectation is reasonable.” The court
ultimately concluded that the statute did not bar admission of the
recording because Judkins lacked a reasonable expectation of
privacy in his home, reasoning that “the walls within a single wide
are thin.”

At trial, Judkins renewed his objection to the audio recording,
but the objection was overruled. The recording was played for the
jury, and the jury found Judkins guilty of domestic battery by
strangulation and false imprisonment. This appeal follows.

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Generally, a trial court’s ruling on the admissibility of
evidence will not be reversed unless the trial court abused its
discretion. See McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA
2006). A trial court abuses its discretion when it bases its rulings
on an erroneous interpretation of evidentiary rules or relevant
cases. See Mantecon v. State, 373 So. 3d 929, 937 (Fla. 1st DCA
2023). However, “[j]udicial interpretations of statutes are pure
questions of law subject to de novo review.” McDade v. State, 154
So. 3d 292, 297 (Fla. 2014) (citation omitted).

The Florida Security of Communications Act, Chapter 934 of
the Florida Statutes, governs the interception of oral
communications and generally prohibits the recording and
disclosure of private communications without the consent of all
parties involved. See § 934.03 Fla. Stat. This prohibition includes
“any oral communication uttered by a person exhibiting an
expectation that such communication is not subject to interception
under circumstances justifying such expectation and does not
mean any public oral communication uttered at a public meeting
or any electronic communication.” § 934.02, Fla. Stat. Intercepted
wire or oral communications, and any evidence derived from them,
are inadmissible in any legal or governmental proceeding if their
disclosure violates Chapter 934. § 934.06, Fla. Stat.

In interpreting the meaning of sections 934.02 and 934.03, the
Florida Supreme Court in McDade v. State held the surreptitiously
recorded conversations between the defendant and his
stepdaughter in his bedroom—during which he admitted to child
sexual abuse and solicited sex—qualified as “oral communications”
made with an expectation of privacy; therefore, the recordings fell
within the statute prohibiting the interception of oral
communications without the consent of all parties and were
inadmissible in the prosecution for sexual battery on a child under
12. McDade, 154 So. 3d at 297-300.

Additionally, in Horn v. State, this Court held that the
contents of a telephone conversation, obtained by a third party
through eavesdropping, with an extension receiver, without the
knowledge of either party were inadmissible, and that testimony
concerning the intercepted conversation was prejudicial and

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required a new trial. See Horn v. State, 298 So. 2d 194 (Fla. 1st
DCA 1974).

E.K. recorded the altercation between Judkins and Coker.
E.K. took this recording while Coker and Judkins were in the
living room, and she was in her bedroom. Neither Coker nor
Judkins knew E.K. was recording their altercation from the next
room over. As sections 934.03 and 934.06 have been interpreted in
both McDade and Horn, the audio E.K. secretly recorded was
erroneously admitted. * We further find that the erroneous
admission was not harmless beyond a reasonable doubt. See e.g.,
Schluck v. State, 329 So.3d 231, 239 (2021).

Judkins further argues that, because the audio recording was
improperly admitted, the trial court erred in denying his motion
for judgment of acquittal because without the recording, there
would not have been competent evidence supporting the
convictions. This argument improperly analyzes a sufficiency of
evidence claim when some of the State’s evidence was erroneously
admitted. When evaluating the sufficiency of the evidence, the
reviewing court must consider all evidence presented at trial,
including evidence that may have been admitted in error. See Redd
v. State, 49 So. 3d 329, 335 n.3 (Fla. 1st DCA 2010) (“We are
required to consider even erroneously admitted evidence when
reviewing the denial of a motion for judgment of acquittal.”); see
also Lewis v. State, 754 So. 2d 897, 902 (Fla. 1st DCA 2000) (“[I]n
reviewing the denial of the motion [for judgment of acquittal], we
are to consider all evidence admitted at trial, whether or not it was
erroneously admitted.”); Barton v. State, 704 So. 2d 569, 573 (Fla.
1st DCA 1997) (holding that a defendant is not entitled to “a

* We reject the State’s argument the admission was proper

because Judkins had no reasonable expectation of privacy when he
made the threatening statements. State v. Foster, 323 So. 3d 209
(Fla. 4th DCA 2021), which reversed an order that had granted
suppression of a surreptitious recording on the ground that the
appellant had a reasonable expectation of privacy, does not require
a different result. The recorded conversation in Foster occurred in
a state correctional institution.

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judgment of acquittal merely because evidence that is critical to
the court’s finding of sufficiency was improperly admitted.”).

Accordingly, we reverse and remand for a new trial with the
instructions to exclude the audio recording.

M.K. THOMAS and TREADWELL, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jessica J. Yeary, Public Defender, and Justin F. Karpf, Assistant
Public Defender, Tallahassee, for Appellant.

James Uthmeier, Attorney General, and Robert Charles Lee,
Assistant Attorney General, Tallahassee, for Appellee.

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