FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court Polk County; Neil A. Roddenbery,
L. Dimmig, II, Public Defender, and Richard J. Sanders,
Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Katherine Coombs
Cline, Assistant Public Defender, Tampa, for Appellee.
State charged Stephen Berouty with sexual battery with a
deadly weapon. A jury found Mr. Berouty guilty of the
lesser-included offense of sexual battery. Although the
prosecuting attorney made improper remarks during closing
statements, we do not believe those comments constituted
Berouty and a young woman we identify in this opinion as C.G.
met outside of a lounge in the early morning hours of June
12, 2003. Both apparently had been drinking. C.G. testified
that she had noticed a man walking on the street and asked if
he needed a ride home. He accepted, they went to a Taco Bell,
and then to a boat ramp on Lake Howard. There, she and the
man kissed in her car, as well as on a nearby picnic bench.
At some point, the man tried to put his hands up her shirt.
She pushed his hands away and said "no," but he
continued to press himself upon her. According to C.G., the
man then held a knife to her throat and had forcible
intercourse with her against her will. When he had finished,
the man fled, and she drove herself to a friend's house
who called the police.
was interviewed by law enforcement officers and then taken to
a rape crisis center, where she underwent a medical
examination. During the examination, the examining nurse (who
would later testify at trial) identified a one-and-three
quarter inch red mark on C.G.'s neck and recalled that
C.G. told her the assailant had put his knife to her neck.
The nurse confirmed that based on her medical training the
wound appeared to be consistent with C.G.'s statement to
her. After the medical examination, though, the investigation
into C.G.'s allegations seemed to have stalled.
in 2016, the Winter Haven Police Department contacted C.G.
and informed her that a DNA sample that had been obtained
during her medical examination had produced a match-Mr.
Berouty's semen had been identified from the DNA swab.
The State charged Mr. Berouty and the case proceeded to trial
on April 30, 2018. At trial, C.G. relayed the facts described
above, but conceded that she did not remember much from the
night of the incident. She was also cross-examined
extensively about purported inconsistent statements between
her statements, her deposition, and her trial testimony.
Berouty testified in his trial and recalled the events of
June 12, 2003, somewhat differently. According to Mr.
Berouty's trial testimony, he first met C.G. inside the
lounge, where they had been drinking and playing games until
C.G. offered him a ride home. He said that they stopped at a
convenience store to purchase more alcohol and then went to a
subdivision that was under construction in order to drink.
While there, he testified that C.G. performed oral sex upon
him, and then they had consensual sexual intercourse. Mr.
Berouty denied ever carrying a knife, having a knife on his
person that night, or ever holding C.G. at knifepoint.
Mr. Berouty's theory of defense was that he and the
victim had engaged in consensual sex. During closing
argument, the defense focused on the victim's
credibility, her memory, and the conflict in testimony. The
defense also discussed the lack of any investigation
conducted by law enforcement at the time C.G.'s alleged
rape was reported.
State's closing argument, the prosecuting attorney
informed the jury that their job was "to decide whose
story is more credible, who are we going to believe,"
and that a conviction is "going to depend on who you
believe." Then in rebuttal, the assistant state attorney
made the following comments:
Now, a mentor of mine once told me that if you can't win
an argument with facts, argue the law. If you can't win
the argument with law, argue the facts. If you can't win
with either, just argue everything you want. Attack
everybody, the victim, the police, the investigation,
whatever you can get your hands on, argue that, and I feel
that that's what is happening here. I feel like we're
in a room and spaghetti is getting thrown over our heads in
every which direction hoping something will stick.
There have been so many deflection tactics that have been
thrown out here and so many things that were addressed that