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Romero v. State

Florida Court of Appeals, Fifth District

August 2, 2019

FRANK ROMERO, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          3.850 Appeal from the Circuit Court for Brevard County, Nancy Maloney, Judge.

          James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

          EDWARDS, J.

         Frank Romero appeals the postconviction court's denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 in which he asserted ineffective assistance of counsel. We agree that Appellant is entitled to a new trial because his trial counsel's performance was deficient and prejudicial regarding: (1) his failure to object to a comment by the State in its closing argument that the jury should consider the negative reaction during Appellant's testimony of a witness sitting in the courtroom audience, and (2) his agreement to instruct the jury that it could consider such reactions. On a second point asserted by Appellant, we find that trial counsel's failure to insist upon a read back of testimony where trial transcripts were not available, under the circumstances here, will not support granting a new trial. Thus, for the reasons discussed below, we affirm in part and reverse in part.

         BACKGROUND FACTS

         Appellant was charged with three felony counts involving a child less than sixteen years old: (1) lewd or lascivious molestation, alleging that he touched the child's buttocks; (2) lewd or lascivious molestation, alleging that he touched the child's breast or clothing covering the child's breast; and (3) lewd or lascivious conduct, alleging that he kissed the child's mouth, lips, or neck. The victim, a friend of Appellant's stepdaughter, testified that when she spent the weekend at Appellant's home in 2010, Appellant gave her a bear hug, repeatedly kissed her, massaged her buttocks, and touched her breasts. According to the victim, Appellant made her and his stepdaughter "pinky promise" not to tell anybody what happened. The victim told her sister and mother what happened. After the mother called the police, a controlled, recorded call between Appellant and the victim took place, during which Appellant asked the victim to forgive him, and said that he did not know what came over him, that it was unintentional, and that what he did had sickened him. Appellant told the victim that he would be in big trouble if she told anybody what he did. During a subsequent recorded police interview, Appellant admitted touching the victim's breast accidently while they wrestled, admitted to kissing her but insisted he was just kissing a "boo boo" she got during horseplay, and admitted that he gave the victim a massage but denied massaging her buttocks. He told police that the pinky promise was because he did not want his wife to know he had been wrestling with the girls, and he admitted he told them that "what ever happens between us stays between us."

         In addition to the victim testifying to the events described above, another minor testified that while she was vacationing with Appellant and his family he repeatedly grabbed her buttocks, and when she told him to stop, he apologized and said he had not meant to. She testified that he later came up from behind her and grabbed her breasts.[1]

         Appellant's wife testified on behalf of her husband, saying that their family members often give each other massages, that she knew the victim and her daughter were wrestling with her husband on the weekend in question, but that she did not notice anything amiss in any way during that weekend. She specifically said she saw nothing in the victim's demeanor that indicated anything to be concerned about. As for the other girl, Appellant's wife said that Appellant had yelled at that girl as she was trying to get in a van with some boys, which made that girl angry at her husband.

         Appellant testified, claiming that the kisses he gave the victim were for her boo boos, while denying that he kissed her on the lips as she claimed. Appellant admitted that he gave her a massage, but said it was only up to her knees. He testified that he accidently touched her breast, and denied touching her buttocks. He denied the other girl's testimony, saying that there was no inappropriate touching. Appellant explained that the pinky promise not to tell was simply part of a frequent family joke or saying, "What happens in the van stays in the van," that was a parody of the commercial "What happens in Vegas stays in Vegas."

         In closing argument, the prosecutor made the following comment:

[Appellant] had already pinky promised with her to not tell anyone, because what happens here stays here, which is not what he says on the stand: it was based on a commercial, you know, the Las Vegas commercial. All my family loves that. Anybody look out in the audience when that was going on and see his wife shaking her head no?

         Defense trial counsel did not object. During deliberations the jury submitted a question that asked whether witness behavior in the courtroom could be considered evidence, even if the witness was not on the stand. Defense counsel and the prosecutor agreed that such off-the-stand behavior ...


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