final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Dava J.
Tunis, Judge.Lower Tribunal No. 10-27158B
J. Martinez, Public Defender, and Robert Kalter, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Eric J. Eves, Assistant
Attorney General, for appellee.
ROTHENBERG, C.J., and SUAREZ and LINDSEY, JJ.
Arroyo ("the defendant") appeals from his
conviction and sentencing for sexual battery with specified
circumstances by multiple perpetrators. He contends on appeal
that the trial court erred by precluding him from inquiring
into the victim's prior sexual history with her
ex-boyfriend and by prohibiting defense counsel from
introducing certain text messages exchanged between one of
his co-defendants and the victim. The defendant also contends
that the trial court erred by denying his motion for judgment
of acquittal because there was insufficient evidence to prove
that there were specified circumstances, namely, that the
victim was either physically helpless to resist or was
physically incapacitated. We find no error below, and
therefore, we affirm.
defendant was charged by information with the sexual battery
with specified circumstances by multiple perpetrators for his
part in the sexual battery of K.P.M. ("the
victim"), which occurred on the night of September 11,
2010. The other alleged perpetrators, Dante Lee Pigatt
("Pigatt") and Gerson Juarez ("Juarez"),
were also charged with sexually assaulting the victim.
trial, the State filed a motion in limine pursuant to the
Rape Shield Statute, section 794.022, Florida Statutes
(2010), to exclude any reference to the alleged fact that the
victim had sex with her ex-boyfriend, Brandon Tyler
("Tyler"), prior to arriving at a party at
Juarez's home, where the sexual battery occurred. The
trial court granted this motion. Additionally, during the
same pretrial hearing and again when the defense was
cross-examining the victim at trial, the trial court ruled
that the defense could not inquire about text messages
exchanged between the victim and Juarez, including some sent
by Juarez that were sexually explicit, because they were
hearsay and because they were more prejudicial than
trial, the victim testified as follows. On the night of
September 11, 2010, she and Tyler drove to a party at
Juarez's home. The victim had not met Juarez before that
night. The victim, who was inexperienced with alcohol,
quickly drank approximately twelve shots of vodka, became
heavily intoxicated, fell down, and hit her head. Tyler
helped her to the bedroom, where she vomited, but he then
left the party to obtain more alcohol. The defendant, Pigatt,
and Juarez were in the bedroom as well. While Tyler was away,
the defendant, along with the two other perpetrators,
sexually battered the victim.
victim testified that she mumbled "no" while Juarez
sexually assaulted her, but that she "felt heavy,"
like a "ragdoll," and she could not move her arms
or legs or fight back. After Juarez's initial sexual
assault upon the victim, he and the defendant took turns
having intercourse with her, while Pigatt attempted to put
his penis in her mouth. When Tyler returned, he found the
victim in the bedroom and very inebriated. Tyler carried the
victim to his car, where she vomited a second time, drove her
home, and with the help of the victim's mother, they were
able to get her to bed. The next morning, the victim told
Tyler that she had been raped at the party, and she reported
the sexual assault to the police.
defense's theory of the case was that the victim had
consensual sex with the defendant at Juarez's party.
Defense counsel argued that the victim had lied about the
sexual battery because she wanted to conceal from her
ex-boyfriend, Tyler, for whom she still had romantic
feelings, that she had consensual intercourse with the
defendant. After the trial, the jury returned a guilty
verdict and the trial court sentenced the defendant to