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Gomez v. State

Florida Court of Appeals, Fourth District

April 25, 2018

CARLOS GOMEZ, Appellant,

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 13006115CF10A.

          Felipe Jaramillo of The Law Office of Felipe Jaramillo, P.A., Fort Lauderdale, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.

          Warner, J.

         Appellant 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.

         The 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.

         On the 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.

         Prior 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 law.

         At 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.

         The 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.

         On 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 case.

         Section 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 ...

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