final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Nassau County. Robert M.
Thomas, Public Defender, and Courtenay H. Miller, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Virginia Harris, Assistant
Attorney General, Tallahassee, for Appellee.
Thompson was convicted of lewd and lascivious molestation of
a child under twelve. At trial, the State presented evidence
that Thompson's daughter had an eleven-year-old friend
who spent a night at Thompson's home. Thompson sneaked
into the room where the victim slept, and he rubbed the
victim's genital region.
appeal, Thompson raises four issues. First, he contends the
trial court erred by admitting child hearsay statements
without conducting a balancing test under section 90.403,
Florida Statutes (2015). He argues that although the trial
court made findings of reliability under section 90.803(23),
the court was still obligated "to conduct an analysis of
whether the probative value of the statements was outweighed
by the danger of presentation of repetitive and cumulative
evidence under the protection afforded by section
90.403." But by admitting the evidence, the trial court
necessarily rejected any argument that prejudice from
cumulative evidence outweighed any probative value. The trial
court did not articulate any balancing consideration, but
"there is no requirement under section 90.403 that the
court must make findings on the record or otherwise, to cause
the record to reflect the specific reasoning applied by the
court in overruling an objection that evidence is
cumulative." Reynolds v. State, 660 So.2d 778,
781 (Fla. 4th DCA 1995). Therefore, Thompson has not shown an
abuse of discretion.
Thompson argues that prosecutor's improper comment in
opening, along with a misstatement of law, led to fundamental
error. The prosecutor referred to Thompson as a
"boogeyman, " and the trial court promptly
sustained an objection. Thompson did not seek a curative
instruction or move for a mistrial, and the inappropriate
comment was not sufficient to warrant a new trial under the
fundamental-error standard. See Carroll v. State,
815 So.2d 601, 622 (Fla. 2002) (prosecutor's reference to
defendant as the "boogie man" and a "creature
that stalked the night" was not fundamental error);
see also Williams v. State, 213 So.3d 1123, 1125
(Fla. 1st DCA 2017). We similarly reject Thompson's
argument that the prosecutor's alleged misstatement of
law led to fundamental error. See Dicks v. State, 75
So.3d 857, 858-60 (Fla. 1st DCA 2011) (rejecting argument
that prosecutor's misstatement of law during closing
argument led to fundamental error).
Thompson contends the trial court erred in allowing improper
opinion testimony about Thompson's daughter's
credibility. The testimony had to do with another
victim's experience with Thompson, an incident that was
introduced as similar-act evidence under section
90.404(2)(b), Florida Statutes (2015). We conclude the
testimony was in fact not improper opinion, and we find no
abuse of discretion.
Thompson argues the court committed fundamental error by
failing to instruct the jury on the lesser-included offense
of an unnatural and lascivious act. But as Thompson
acknowledges, the offense of unnatural and lascivious act is
not a necessary lesser-included offense of lewd and
lascivious molestation, but a permissive one. Fla. Std. Jury
Instr. (Crim) 11.10(c). A court's failure to give an
instruction on a permissive lesser-included does not
constitute fundamental error. See Khianthalat v.
State, 974 So.2d 359, 361 (Fla. 2008) (noting that
"[u]pon request, a trial judge must
give a jury instruction on a permissive lesser included
offense if . . . two conditions are met" (emphasis
provided)). Thompson did not request such an instruction, and
the trial court was not obligated to give one.
WETHERELL, and WINSOR, JJ., concur.