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Tirado v. State

Florida Court of Appeals, Fourth District

May 3, 2017

RUBEN M. TIRADO, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No. 12-10262 CF10A.

          Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

          LEVINE, J.

         We are presented in this case with the following issues: whether the trial court erred in denying appellant's motion for a mistrial when a state's witness allegedly made an isolated comment on the credibility of other witnesses and non-witnesses; and whether the trial court fundamentally erred in giving the standard jury instruction that the term "union, " as used in the sexual battery statute, means "contact." We conclude that the trial court did not abuse its discretion in denying appellant's motion for a mistrial, and additionally, we find that the trial court's instruction was consistent with Florida law. We also find the remaining issue on appeal to be without merit and affirm without further comment.

         The eight-year-old victim and her twin sister went to visit their uncle at his home that the uncle shared with his girlfriend and his girlfriend's father, Ruben Tirado, the appellant. After arriving at the home, the twins went outside to play, and when they returned, their mother was present, sleeping on a couch. The two girls went into a bedroom where appellant was watching television. One of the girls got into bed with appellant and the other got onto a small side bed.

         As the victim was falling asleep, appellant rolled over, pulled her pants down, and pulled his own pants down. The victim told appellant to get off of her and tried to push him off, but was unable. When the victim's sister noticed the victim struggling, the twin attempted to get appellant off of the victim as well, but could not. Although at trial the victim stated that appellant's penis "touched" her "butt, " the victim told others shortly after the incident occurred that appellant had put his penis "in her butt." When the victim's uncle entered the room, appellant told the victim leave and to pull her pants up.

         A subsequent medical examination of the victim did not show signs of injury. However, semen was found both in and around the victim's anus and vagina, and DNA testing showed the semen belonged to appellant.

         After appellant's arrest and before being interviewed, he was kept in an interview room, alone, for several hours while a detective interviewed the victim and other witnesses. At trial, appellant argued that the state must introduce the entire tape of his time inside of the interview room to show that appellant was uncomfortable, which, he argued, was relevant to the voluntariness of his statement to police.

         The state asked the detective why appellant was kept waiting in the interview room. The detective responded that she wanted to speak to the witnesses and the victim before speaking to appellant. The state asked the detective why she did this and she responded, "Because I want to get the most accurate information as to what occurred." Appellant objected, argued the witness was commenting on the accuracy of others' statements, and moved for a mistrial. The state asserted that it was not the witness's intention to comment on anyone else's testimony. The court sustained appellant's objection and told the state to rephrase the question, but denied appellant's motion for a mistrial.[1] The state changed to a different line of questions and did not later discuss the detective's comment.

         Following the close of evidence, the court gave the standard jury instruction on sexual battery:

To prove the crime of Sexual Battery upon a person less than twelve years of age the State must prove the following three elements beyond a reasonable doubt:
Two, [appellant] committed an act upon [the victim] in which the penis of [appellant] penetrated or had union with ...

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