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Scott v. State

Florida Court of Appeals, Third District

May 3, 2017

Jeff Scott, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 14-8780, Rodolfo A. Ruiz, Judge.

          Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

          Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

          ROTHENBERG, J.

          Jeff Scott, the defendant, appeals from a final judgment of conviction and sentence for three counts of sexual activity with a child by a person in familial or custodial authority, a first-degree felony. § 794.011(8)(b), Fla. Stat. (2014). The defendant argues on appeal that three alleged errors warrant reversal. Specifically, the defendant contends that: (1) the prejudice caused by the victim's testimony that she tried to commit suicide after the abuse outweighed its probative value; (2) an expert witness's recommendation that the victim should receive sexual abuse therapy improperly bolstered the victim's credibility; and (3) the prosecution improperly appealed to the jury's sympathy for the victim during closing arguments. For the following reasons, we affirm.

         I. Standard of Review

         If the defendant had properly objected to these claimed errors at trial, we would be reviewing the admission of the victim's testimony, the expert's testimony, and the State's closing arguments for an abuse of discretion. See Cardona v. State, 185 So.3d 514, 520 (Fla. 2016); O'Connell v. State, 480 So.2d 1284, 1286 (Fla. 1985). The defendant, however, concedes that these alleged errors were not properly preserved for appellate review. The defendant must, therefore, establish fundamental error to obtain a reversal.

         "Fundamental error is defined as the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." McDonald v. State, 743 So.2d 501, 505 (Fla. 1999) (internal quotation omitted); see also J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998) ("An error is fundamental when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process."); Hopkins v. State, 632 So.2d 1372, 1374 (Fla. 1994) (stating that "the fundamental error doctrine should be used very guardedly") (internal quotation marks omitted); Smith v. State, 521 So.2d 106, 108 (Fla. 1988) ("The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application."). No fundamental error has been demonstrated here.

         II. The first alleged error: evidence of C.S.'s suicide attempt

         During the State's case-in-chief, C.S. briefly testified that, as a result of the defendant's abuse, she tried to commit suicide. The defendant argues on appeal that the introduction of this testimony was improper because its probative value was outweighed by the risk of unfair prejudice. Section 90.402, Florida Statutes (2014), provides that "[a]ll relevant evidence is admissible, except as provided by law." Section 90.403, Florida Statutes (2014), however, states that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence."

          Whether C.S. was sexually abused was the sole, and thus, a material issue in this case. The case law has consistently held that the behavioral changes of a victim following the alleged sexual abuse is probative of whether the sexual abuse occurred. See Petruschke v. State, 125 So.3d 274, 281 (Fla. 4th DCA 2013) (finding that testimony from the victim's parents that the victim "wet his bed more often, woke up crying with terror, and began counseling" after the alleged abuse was relevant and admissible to prove that the abuse actually occurred"); Elysee v. State, 920 So.2d 1205, 1208 (Fla. 4th DCA 2006) (holding that the mother's testimony regarding the victim's "morose behavior" in the days following the alleged sexual abuse was relevant and admissible). As the Fourth District Court of Appeal noted in Elysee, "[i]f the victim had engaged in conduct inconsistent with the charges, for example, attending a party and enjoying herself, immediately after she left the scene, we have no doubt that the appellant would consider that evidence to be relevant." Elysee, 920 So.2d at 1208.

         Based on the facts in the instant case, we find that the admission of this relevant evidence, which did not become a feature of the trial, did not constitute an abuse of discretion under the balancing test of section 90.403, and certainly did not rise to the level of fundamental error. Under a fundamental error analysis, the defendant has the very high burden of showing that the alleged error reaches down into the foundation of the case, J.B., 705 So.2d at 1378, such "that a verdict of guilty could not have been obtained without the assistance of the alleged error." McDonald, ...


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