Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nebergall v. State

Florida Court of Appeals, Fourth District

January 8, 2020

JASON BRYON NEBERGALL, Appellant,
v.
STATE OF FLORIDA, Appellee.

         No further motions for rehearing shall be considered.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No. 502016CF011962A.

          Michael Salnick of Law Offices of Salnick & Fuchs, P.A., West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.

          ON APPELLEE'S MOTION FOR REHEARING, REHEARING EN BANC, AND CLARIFICATION/CORRECTION OF OPINION

          Gerber, J.

         We deny the state's motion for rehearing, rehearing en banc, and correction of opinion.

         However, we grant the state's motion for clarification, which seeks to include further trial transcript facts in the opinion, in the event the state petitions for review in the Florida Supreme Court. See Wells v. State, 132 So.3d 1110, 1111 (Fla. 2014) ("As in all petitions seeking this Court's discretionary jurisdiction pursuant to article V, section 3(b)(3), we are confined to consider only those facts contained within the four corners of the district court's majority opinion.").

         We therefore substitute this opinion for our original opinion which we issued on November 6, 2019, and include the further trial transcript facts which the state has requested in this substituted opinion.

         The defendant appeals from his convictions on one count of attempted sexual battery (victim eighteen years of age or older) while in possession of a weapon, and one count of simple battery.

         The defendant primarily argues the trial court erred in denying his motion for mistrial after the alleged victim intentionally violated the trial court's clarified order on a motion in limine. The order provided, in pertinent part, that any testimony regarding law enforcement's efforts to identify the DNA found on the alleged victim's buttocks could only indicate that such efforts were "inconclusive." However, during the alleged victim's cross-examination, in response to one of defense counsel's questions not related to DNA, the alleged victim ended her answer by exclaiming, "You see the DNA results on me. And now you guys say the DNA's not on my butt, but it was on my butt. It was enough -- ."

         We agree with the defendant that the trial court erred in denying his motion for mistrial. The alleged victim's comment deprived the defendant of a fair trial, reasonably may have materially contributed to his conviction, and was so harmful or fundamentally tainted as to require a new trial. We also conclude that a curative instruction would not have remedied this violation. We are compelled to reverse and remand for a new trial.

         We present this opinion in five parts:

1. The allegations;
2. The DNA evidence and the defendant's motion in limine;
3. The defendant's motion for mistrial;
4. The trial court's denial of the motion for mistrial; and
5. Our review.

         1. The Allegations

         a. The State's Case

         At the time of this incident, the defendant was a sheriff's deputy. Early one morning around 5:30 am, he and two other deputies were dispatched to the alleged victim's home to investigate an altercation between her and her landlord. The altercation had been investigated by other deputies earlier in the night.

         The defendant and the other two deputies arrived at the alleged victim's home in separate vehicles. By the time they arrived, the landlord had left the scene. The alleged victim was standing outside. The defendant introduced himself by his first name, and then spoke to her away from the other deputies. She told the defendant that her landlord kept coming to her home and threatening her.

         The defendant told the alleged victim that he was not trying to downplay her story, but he did not intend to write a report because his shift was ending. He offered to come back and check on her another time. She responded that would be okay. The defendant and the other deputies then drove away in separate vehicles.

         Just minutes later, the defendant returned to the alleged victim's home. The defendant did not notify the other two deputies or dispatch that he was doing so. When the defendant, still in uniform, got to the alleged victim's home, he knocked on the door, and identified himself as "PBSO." The alleged victim came outside.

         What allegedly happened next became the subject of the charges and trial.

         The alleged victim testified in pertinent part as follows. When she came outside, the defendant said, "I told you I was gonna come back and check on you." The defendant then grabbed her by the hair and kissed her on the mouth. He said, "Too much light here," and led her around to the back of her home. When they got around back, he said, "I had to come back and check on these big a** t******." He pulled up her top, and sucked on her left breast. Then he started kissing the left side of her neck. He said "[H]ave you ever had white c***? Do you like it in your a**?" She did not respond. He put his hand down her shorts, and touched her vagina. He grabbed her right hand, unzipped his pants, pulled out his penis, and said "touch it," but she did not. He told her to "give me h***," but she said no. He turned her around, pulled down her shorts, and rubbed his penis on her buttocks. He tried to penetrate his penis between her buttocks, but he said, "I can't do this. I don't have a condom." He then said, "I'll be back. I'll check on you," and left her home.

         The alleged victim went back inside her home and notified her roommates. She called the sheriff's office to get the defendant's last name and badge number. She did not immediately report the incident itself to the sheriff's office, but did so later that day at the urging of her roommates and family. When she reported the incident, she initially would not provide her name because she feared for her safety.

         The alleged victim was directed to a hospital's sexual assault treatment center, where DNA samples were taken from her right hand fingernails, the upper and lower areas between her buttocks, the left side of her neck, and her left breast at the nipple and areola. A DNA sample was not taken from the alleged victim's vagina because she informed the treating nurse that she had not been vaginally penetrated.

         The alleged victim ultimately identified herself and provided statements to the treating nurse, and to sheriff's office detectives from the sexual assault division who were sent to the hospital to investigate.

         The next day, the detectives pulled the GPS records of the defendant's location from the previous night. The GPS records showed that when the defendant returned to the alleged victim's home by himself, he had remained at the home for approximately eleven minutes. The detectives also obtained a search warrant for the defendant's DNA and uniform.

         The detectives went to the defendant's neighborhood to interview him about the incident. One of the detectives took the lead. That detective read the defendant his Miranda rights. The defendant responded that he understood his rights. He then stated he did not know what was going on, but he agreed to be interviewed.

         The detective asked the defendant what occurred when he responded to the alleged victim's home. The defendant said that he and two other deputies were dispatched to the alleged victim's home to investigate the earlier altercation between the alleged victim and her landlord. The alleged victim did not want her landlord to come back to her home. She described her landlord's vehicle. The defendant told the alleged victim to change the lock on her home, and if her landlord came back, to call the sheriff's office. The defendant and the other deputies then left. The defendant told the detective that as he was leaving the neighborhood, he saw a vehicle fitting the description of the landlord's vehicle turn into the neighborhood. The defendant turned around and drove back by the alleged victim's home, but the vehicle he saw was not in the area. The defendant first told the detective that the alleged victim was standing outside of her home. The defendant then told the detective that he knocked on the alleged victim's door. The defendant said he asked the alleged victim if her landlord had come back. The alleged victim said no. The defendant said he then talked to the alleged victim for a couple minutes, and then he left. The detective asked the defendant, "Did you touch her at all?" The defendant responded "No." The detective then asked, "Did she touch you?" The defendant again responded "No." The interview then ended.

         The detectives obtained DNA samples from the defendant. After obtaining test results comparing the DNA profiles from the alleged victim's body to the defendant's DNA profile (discussed further below), the detectives arrested the defendant.

         The state ultimately charged the defendant with three counts: (1) attempted sexual battery (victim eighteen years of age or older) while in possession of a weapon, for the defendant's penis having union with the alleged victim's anus or vagina; (2) simple battery for touching her vagina; and (3) simple battery for touching her breasts.

         At trial, the alleged victim and the detectives testified consistently with the summaries provided above.

         The state also presented the testimony of one of the other deputies who responded to the alleged victim's home. The other deputy testified that after he and the defendant drove away from the alleged victim's home, the defendant's vehicle separated from the other deputy's vehicle on a road farther away from the alleged victim's neighborhood, thus contradicting the defendant's statement that he turned his vehicle around immediately after he left the alleged victim's neighborhood.

         b. The Defendant's Testimony

         The defendant chose to testify at trial, and testified as follows. After he returned to the alleged victim's home, he knocked on her door, and identified himself as a sheriff's deputy. The alleged victim opened the door and came outside. The defendant told her he had come back because, as he was leaving the neighborhood, he had seen a vehicle fitting the description of the landlord's vehicle entering the neighborhood. The defendant asked the alleged victim if she had any further issues or if anybody came back in the time since he and the other deputies left her home. She said no. The defendant again told her to change the lock on her home, and that if she had any further issues, to contact the sheriff's office. At that point, the alleged victim asked, "Would you like to pat me down?", which he thought was strange. The defendant told her no, and to have a good night. The alleged victim then pulled up her top to her neck, exposing both breasts, and asked "Are you sure you don't want to pat me down for weapons?" The defendant was shocked. He told her no again and turned to walk back to his vehicle. Then he felt a nudge on his right forearm. He immediately turned around and saw her with her top still pulled up with both breasts exposed as she leaned into him. The defendant put his hands up immediately and pushed her back, touching one of her breasts in the process. He got in his vehicle and went home.

         The defendant testified he did not notify a supervisor about the incident, and did not write a report about the incident. When defense counsel asked why not, the defendant said, "I was just trying to minimize the situation. I wasn't trying to escalate it to any level or cause any kind of further embarrassment to [the alleged victim]. And it really was a non-issue for me at the time."

         When defense counsel asked the defendant why he responded "No" to the detective's question, "Did you touch her?", the defendant said, "I knew [the detective was in the sexual assault division]. And the way I interpreted his question with the type of investigation he was doing, I interpreted it as he was asking me if I touched her with any kind of sexual motivation. And my answer was clearly no then and no today."

         When defense counsel asked the defendant why he responded "No" to the detective's question, "Did [the alleged victim] touch you?", the defendant said, "I interpreted the question the same way, as did [she] try to touch me in a sexual way or sexual manner. And she did not."

         When defense counsel asked the defendant why he did not tell the detective that the alleged victim exposed herself to him, he said, "Still at the time, it was -- it was -- in my mind at the time, it was a minor issue. And I -- it was a minor issue at the time."

         The defendant denied all other actions to which the alleged victim testified.

         2. The DNA Evidence and the Defendant's Motion in Limine

         Two sheriff's office forensic scientists analyzed the samples taken from the alleged victim. One scientist analyzed for autosomal DNA, which is the combined DNA from both an individual's mother and father. The other scientist analyzed for Y-STR DNA, which looks only at the male DNA present.

         On the sample taken from the alleged victim's right hand fingernails, the autosomal DNA indicated the presence of three individuals. The major profile was determined to be consistent with the alleged victim's DNA profile. No comparisons were done for the minor contributors of this sample. No Y-STR analysis was done.

         On the sample taken from the upper area between the alleged victim's buttocks, the autosomal DNA indicated the presence of three individuals. The major profile was determined to be consistent with the alleged victim's DNA profile. No comparisons were done for the minor contributors of this sample. No Y-STR analysis was done.

         On the sample taken from the lower area between the alleged victim's buttocks, the autosomal DNA indicated the presence of at least two individuals. The major profile was determined to be consistent with the alleged victim's DNA profile. No comparisons were done for the minor contributors of this sample. The Y-STR DNA indicated the presence of three males. No conclusions were made from the Y-STR DNA because the mixture was too complex.

         On the sample taken from the left side of the alleged victim's neck, the autosomal DNA indicated the presence of at least four individuals. The major profile was determined to be consistent with the alleged victim's DNA profile. No comparisons were done for the minor contributors of this sample. The Y-STR DNA indicated the presence of at least five males. No conclusions were made from the Y-STR DNA because the mixture was too complex.

         On the sample taken from the alleged victim's left breast, the autosomal DNA indicated the presence of at least four individuals. The entire profile was deemed inconclusive for comparison to anyone because no major profile was detected. The Y-STR DNA indicated the presence of three males. The major profile was determined to be consistent with the defendant's DNA profile. No comparisons were done for the two minor contributors.

         Based on the DNA testing results, the defendant filed a pre-trial motion in limine seeking to exclude any testimony that the defendant could not be excluded as a contributor to any DNA profile "found on any item of evidence introduced in this cause, unless it is accompanied by a statistical weight." That motion referred only to the DNA found on the alleged victim's buttocks.

         The state agreed to the defendant's motion in limine, and the trial court entered an agreed order granting that motion.

         The defendant later filed a motion for clarification relating to the agreed order. According to the motion, the state had expressed the belief that it still could elicit testimony that this particular DNA analysis was "inconclusive," whereas defense counsel believed such testimony was excluded unless the defendant opened the door to such testimony.

          The trial court granted the motion for clarification, and entered an order providing, in pertinent part:

A review of the Motion in Limine indicates Defense was requesting that [the DNA analysts] not be allowed to testify that the "pattern obtained from [the defendant] cannot be excluded" to the pattern from evidence. The Court would have sustained this objection as the statement implies that the [defendant's] pattern may have been "included" in the pattern from the evidence without any statistical support.
However, the Court would allow that the analysis was inconclusive, as that seems to be an accurate statement.

         The trial proceeded one month later. The two sheriff's office forensic scientists testified consistently with their analyses above.

         The state also presented the testimony of a private sector forensic scientist from whom the sheriff's office's forensic scientists requested further analysis of the DNA samples. This third forensic scientist confirmed that, on the sample taken from the alleged victim's left breast, the Y-STR DNA had a clear major profile which matched the defendant's DNA profile. The third forensic scientist could not say what the manner of contact was between the defendant and the alleged victim's left breast. However, the third forensic scientist testified that "when you have major profiles . . . it suggests that there's been more than just casual contact," and "quick, casual contact typically does not leave very much DNA." The third forensic scientist added, "If you're sucking on a particular individual, that obviously is going to leave a lot more DNA."

         3. The Defendant's Motion for Mistrial

         During defense counsel's cross-examination of the alleged victim, the alleged victim violated the trial court's clarified order on the motion in limine when she was asked about an entirely separate topic, that is, why she initially would not provide her name to law enforcement:

[DEFENSE COUNSEL]: [The officer to whom the alleged victim reported the incident] said he asked you your name at least ten times and you wouldn't ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.