final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-8780, Rodolfo A. Ruiz, Judge.
J. Martinez, Public Defender, and Robert Kalter, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Nikole Hiciano, Assistant
Attorney General, for appellee.
ROTHENBERG, EMAS, and FERNANDEZ, JJ.
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.
Standard of Review
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.
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.
The first alleged error: evidence of C.S.'s suicide
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.
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."