final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No.
Jaramillo of The Law Office of Felipe Jaramillo, P.A., Fort
Lauderdale, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm
Beach, for appellee.
was convicted of armed sexual battery. On appeal, he claims
that the court erred in preventing him from cross-examining
the victim, with whom he had had a nearly twenty-year
marriage, on her prior allegation of rape against him. In
granting a motion in limine, the court also prohibited
appellant from cross-examining the victim about allegations
of rape she levelled against an employer. The court believed
that each inquiry violated the rape shield law. We hold that
the allegations are not covered by the rape shield law;
nevertheless, because the court found they were also
irrelevant, we agree that they were inadmissible and affirm.
State charged appellant with armed sexual battery of the
victim in April 2013. Appellant and the victim's
relationship began in 1996 in Mexico. The victim testified
that she married appellant in Mexico, and she referred to
appellant as her husband. They later moved to the United
States, where they had two children. In 2008, they separated,
and their relationship became very hostile.
day of the incident, the victim had just taken her children
to school when appellant showed up at her apartment. He told
her, "Now, you're going to [expletive] get it."
He said he had a knife in his backpack and told her not to
make a fuss. The victim said she didn't scream or make a
noise, and she went inside where appellant proceeded to
anally penetrate her. When appellant took out his cell phone,
she ran out, taking her own cell phone. A neighbor saw her,
and the victim went to her yard where she called 911. The
neighbor saw appellant leave the house. The victim was taken
to a sexual assault center and examined. Later, appellant was
arrested and charged.
to trial, during a deposition, the victim testified that in
2001 appellant had tried to rape her. She also testified at
length about sexual abuse by her employer years earlier. When
appellant found out about this sexual relationship with the
employer, the victim claimed it was non-consensual and that
the employer repeatedly raped her. Before the start of the
trial, defense counsel sought permission to question the
victim about her past allegations of sexual assault. The
court precluded questioning of the victim both as to her
allegation against the employer as well as against appellant.
The court found such evidence would violate the rape shield
trial, in addition to recounting the sexual assault the
victim testified about her hostile relationship with
appellant and the fact that she was separated from him. They
interacted mostly over the children. She admitted that she
had contact with appellant through a family friend while he
was in jail for the instant case, and she said that she did
not want to press charges further against appellant. But she
never testified that she had ever reconciled with appellant
or engaged in sexual relations with him after their
separation in 2008.
State presented DNA evidence gathered from the victim's
examination which included appellant's DNA. The nurse who
examined the victim testified that the victim's injuries
were consistent with the victim's account of the events.
A detective testified that appellant's shoe and backpack
were found in the victim's residence. The appellant
presented no evidence. The jury convicted appellant of armed
sexual battery, and the court sentenced him to life in
prison, with a twenty-five year mandatory minimum, for that
conviction. Appellant now appeals his conviction.
appeal, Gomez contends that the court abused its discretion
in refusing to allow him to cross-examine the victim
regarding her prior allegations of rape against her employer,
as well as against the appellant. The trial court ruled that
the examination of her relationship with her employer would
violate the rape shield law, section 794.022, Florida
Statutes (2013). The court also determined that the
allegations were not relevant. As to the victim's
allegation in a deposition, taken in this case, that
appellant raped her in 2002 during their relationship, the
court ruled that the appellant could cross-examine the victim
about any sexual relationship that they had subsequent to
their separation, but the court would not allow appellant to
question her regarding the prior allegation of rape. Although
the rape shield law was inapplicable to either allegation of
rape by the victim, the court did not abuse its discretion in
its rulings because the evidence was not relevant in this
794.022(2), Florida Statutes (2013), prohibits questioning a
victim regarding a sexual relationship with others:
Specific instances of prior consensual
sexual activity between the victim and any person
other than the offender shall not be
admitted into evidence in a prosecution [for sexual battery].
However, such evidence may be admitted . . . if it is first
established to the court in a proceeding in camera that such
evidence tends to establish a pattern of conduct or behavior
on the part of the victim which ...