RUBEN M. TIRADO, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No.
Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
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.
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.
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.
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.
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.
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. The state changed to a
different line of questions and did not later discuss the
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 ...