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Berouty v. State

Florida Court of Appeals, Second District

November 13, 2019

STEPHEN BEROUTY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court Polk County; Neil A. Roddenbery, Judge.

          Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Public Defender, Tampa, for Appellee.

          LUCAS, JUDGE.

         The 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 fundamental error.

          Mr. 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.

         C.G. 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.

         Then, 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.

         Mr. 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.

         Thus, 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.

         In the 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 ...

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