Third District Court of Appeal State of Florida
Opinion filed December 22, 2021. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-1581 Lower Tribunal No. F16-21185 ________________
Nimer Abdallah, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.
Law Offices of Kawass, P.A., and Kristen A. Kawass, for appellant.
Ashley Moody, Attorney General, and Gabrielle Raemy Charest- Turken and Ivy R. Ginsberg, Assistant Attorneys General, for appellee.
Before LOGUE, SCALES and LOBREE, JJ.
On Motion for Issuance of a Written Opinion
SCALES, J. We deny appellant Nimer Abdallah’s motion for rehearing, but grant
his motion seeking issuance of a written opinion, withdraw our unelaborated
per curiam affirmance of June 30, 2021, and substitute the following opinion
in its place.
Abdallah appeals his criminal conviction of two counts of sexual battery
enhanced by specified circumstances and one count of burglary with assault
and battery. Specifically, Abdallah argues that the trial court erred by denying
his motions for judgment of acquittal and his request for a special jury
instruction, and by making several evidentiary rulings. Because we find no
reversible error, we affirm.
I. Background
A. The Alleged Crimes
On Friday October 14, 2016, K.N. and her friend, Adriana, each
consumed one alcoholic drink in K.N.’s Miami apartment. They then took an
Uber to a restaurant in Coral Gables. They sat at the restaurant’s bar and
had more drinks. After having a disagreement with the bartender, and feeling
bothered by two men at the bar, the two women retreated to the bathroom.
There, K.N. started to feel woozy and sick. When they emerged from the
bathroom, they sat on some stools at the restaurant’s outside seating area.
2 Almost immediately, K.N. fell off the stool and hit her head. From that point
onward, she had no recollection of that night.
The restaurant manager told them to leave and, apparently,
summoned an Uber using K.N.’s phone. Abdallah was the Uber driver. After
he arrived at the restaurant, Abdallah was initially reluctant to drive K.N. and
Adriana, concerned that they were intoxicated and might vomit in his car.
Eventually, though, Abdallah agreed to drive the two women back to K.N.’s
apartment.
When they arrived at K.N.’s apartment, the women had trouble getting
out of Abdallah’s car and, upon finally emerging from the car, K.N. laid on
the sidewalk. Abdallah agreed to assist K.N. from the sidewalk to her
apartment. Accompanied by Adriana, Abdallah carried K.N. to an elevator
and then into her apartment. Abdallah had K.N.’s key fob for entry to both
K.N.’s apartment building and her unit, though neither K.N. nor Adriana could
recall how he came to possess it. Surveillance video showed the three of
them at the exterior of the apartment building and their entry into the building
and its elevator. The elevator video showed Abdallah propping up K.N. while
Adriana stood apart from them. The video surveillance showed that eight to
nine minutes elapsed between Abdallah’s entry into the elevator with the two
3 women and his eventual departure alone. What occurred during those eight
to nine minutes is disputed.
In his sworn statement to police, Abdallah admitted to having a sexual
encounter with K.N. in her bedroom. Specifically, he admitted that he had
both digitally penetrated and touched his penis against K.N.’s vagina. He
insisted that the encounter was consensual, initiated by K.N. kissing him. In
her testimony, Adriana described the events in K.N.’s apartment differently.
She testified that Abdallah carried an incoherent K.N. into the bedroom and
placed K.N.’s limp body on her bed. Instead of leaving, Abdallah stood over
K.N. Adriana did not see K.N. kiss Abdallah or give him any invitation.
Adriana testified that she told Abdallah to leave, and Abdallah responded by
pulling her arm and telling her to join him and K.N. Adriana fled the room and
locked herself in the bathroom, where she blacked out. Because K.N. was
unable to recall any of the evening’s events occurring in her apartment, she
could not rebut, at trial, Abdallah’s version of events.
The next morning, a Saturday, K.N. stirred awake and was confused
about why she was in bed and partially naked. She found Adriana in the living
room. Together, they tried to recall the previous evening, and found the Uber
call and a reference to Abdallah on K.N.’s phone. After Adriana left K.N.’s
apartment, K.N. found semen stains on her comforter; DNA testing later
4 matched them to Abdallah.1 The Monday morning following the incident, K.N.
went to a rape treatment center for examination.
B. K.N.’s Settlement of a Civil Suit against Uber
The day after the alleged sexual assault, and before K.N. went to the
rape treatment center, K.N. contacted Uber. About a year later, K.N.
participated as a plaintiff in a federal class action civil lawsuit against Uber
filed in California. The plaintiffs were Uber passengers who had suffered
alleged sexual assaults or sexual harassment by Uber drivers. The parties
entered into a confidential settlement agreement before the start of
Abdallah’s criminal trial. K.N. did not sue Abdallah civilly.
C. The Charges
A month after the incident, the State charged Abdallah with two felony
counts: (i) violating section 794.011(4)(b) of the Florida Statutes by his digital
penetration and/or digital union with K.N.’s vagina; and (ii) violating section
794.011(4)(b) by his penile penetration and/or penile union with K.N.’s
vagina. Both of these sexual battery counts were charged with special
circumstances enhancements based on K.N.’s alleged physical
helplessness (under section 794.011(1)(e)) and physical incapacitation
(under section 794.011(1)(j)). In an amended information, the State added a
1 The parties entered the DNA match into evidence by stipulation.
5 felony burglary charge of violating section 810.02 of the Florida Statutes by
entering and then remaining in K.N.’s apartment with the intent to commit
sexual battery.
D. Trial, Motions for Judgment of Acquittal, Verdict and Sentence
Abdallah’s criminal trial was conducted in May of 2019. While Abdullah
did not testify, his recorded statement to police was entered into evidence
and played to the jury. During the trial, Abdallah made a motion and a
renewed motion for judgment of acquittal as to all three counts. The trial court
denied both motions. Ultimately, the jury found Abdallah guilty of all three
charges and the trial court sentenced Abdallah to 170.25 months in prison,
followed by ten years of probation. Abdallah timely appealed.
II. Analysis
Abdallah raises five separate issues on appeal. 2 We address each in
turn.
A. Denial of motions for judgment of acquittal3
2 Abdallah also asserts that he was denied a fair trial based on the cumulative effect of the trial court’s alleged errors. Because we conclude the trial court did not reversibly err on any ground, we do not separately address Abdallah’s “cumulative effect” issue. 3 We review de novo a trial court’s denial of a motion for judgment of acquittal. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). We are compelled to affirm a trial court’s denial of a motion for judgment of acquittal if each element of the crime is supported by competent, substantial evidence
6 Abdallah first asserts that the trial court erred by denying his motions
for judgment of acquittal. Abdallah argues that the State failed to establish,
with competent, substantial evidence each element of the charged crimes.
We first address the two sexual battery counts, then the related burglary
charge.
1. The sexual battery charges – section 794.011(4)(b)
a. The relevant statute – elements of the crime
Section 794.011(4)(b) of the Florida Statutes provides, in relevant
part: “A person 18 years of age or older who commits sexual battery upon a
person 18 years of age or older without that person’s consent, under any of
the circumstances listed in paragraph (e), commits a felony of the first
degree[.]” § 794.011(4)(b), Fla. Stat. (2016).4 The referenced paragraph (e)
contains a schedule of seven specified circumstances that relate to and
enhance the charge, making it a first-degree felony. In this case, the State
presented in the State’s case. Id. (“If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”). 4 “‘Sexual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.” § 794.011(1)(h), Fla. Stat. (2016).
7 alleged that K.N. was both “physically helpless to resist” and “physically
incapacitated,” thus implicating, respectively, the special circumstances
described in subsections 794.011(4)(e)1. and 6.
Hence, the elements of a sexual battery pursuant to section
794.011(4)(b) are as follows: (i) a sexual battery as defined by section
794.011(1)(h); (ii) the act was not consented to; and (iii) as relevant here, the
victim was either “physically unable to resist” or “physically incapacitated,”
as defined in sections 794.011(1)(e) and (j). See Coley v. State, 616 So. 2d
1017, 1019 (Fla. 3d DCA 1993). The trial court incorporated these elements
in its jury instructions.5
Abdallah asserts that the State failed to adduce evidence that K.N. was
either physically helpless or physically incapacitated; Abdallah also argues
that K.N. consented. Conceding that K.N. was inebriated, Abdallah argues
that there was not competent, substantial evidence that K.N.’s state of
inebriation reached a point of physical helplessness or physical
incapacitation at which she could not resist him. And, according to Abdallah,
she would have no cause to resist him because she consented to the sexual
encounter.
b. The State’s evidence and our standard of review
5 See footnote 7, infra.
8 While Abdallah urges us to accept his version of events, we do not
reweigh the evidence presented to the jury. Fitzpatrick v. State, 900 So. 2d
495, 508 (Fla. 2005) (“The fact that the evidence is contradictory does not
warrant a judgment of acquittal because the weight of the evidence and the
witnesses’ credibility are questions solely for the jury. It is not this Court’s
function to retry a case or reweigh conflicting evidence submitted to the trier
of fact.”) (citation omitted). Our inquiry is limited to whether the jury’s verdict
is supported by competent, substantial evidence. Arroyo v. State, 252 So. 3d
374, 379 (Fla. 3d DCA 2018) (“[W]e will not reverse if there is competent
substantial evidence supporting the jury’s finding.”). “In moving for a
judgment of acquittal, a defendant ‘admits not only the facts stated in the
evidence adduced, but also admits every conclusion favorable to the
adverse party that a jury might fairly and reasonably infer from the evidence.’”
Beasley v. State, 774 So. 2d 649, 657 (Fla. 2000) (quoting Lynch v. State,
293 So. 2d 44, 45 (Fla. 1974)). Against this backdrop, we review the
evidence presented by the State regarding each element of the sexual
battery crimes with which Abdallah was charged.
(i) First element: a sexual battery occurred
9 Abdallah admitted in his statement to police both that he digitally
penetrated K.N. and that his penis touched K.N.’s vagina. Hence, there was
competent, substantial evidence supporting the first element.
(ii) Second element: the act was without consent
The issue of consent falls within the province of the jury and generally
does not lend itself as a basis for a judgment of acquittal. Shrader v. State,
278 So. 3d 270, 280 (Fla. 2d DCA 2019). The relevant statute defines
consent as follows: “‘Consent’ means intelligent, knowing, and voluntary
consent and does not include coerced submission. ‘Consent’ shall not be
deemed or construed to mean the failure by the alleged victim to offer
physical resistance to the offender.” § 794.011(1)(a), Fla. Stat. (2016).
While K.N. could not recall her encounter with Abdallah that night,
K.N.’s limited testimony together with Adriana’s testimony regarding the
night’s occurrences, coupled with the surveillance video, provide the basis
for a reasonable inference by the jury that K.N. did not give “intelligent,
knowing, and voluntary” consent to Abdallah. See § 794.011(1)(a), Fla. Stat.
(2016). The jury could have accepted Abdallah’s version of events in which
he claimed that K.N. consented, but it chose not to do so.
We therefore conclude on this record that the State established K.N.’s
lack of consent with competent, substantial evidence.
10 (iii) Third element: the victim was either “physically unable to
resist” or “physically incapacitated”
As with consent, whether the State presented sufficient evidence of
K.N.’s physical helplessness to resist and physical incapacitation was a jury
question. Arroyo, 252 So. 3d at 379. To establish K.N.’s physical
helplessness, the State was required to show that K.N. was “unconscious,
asleep, or for any other reason physically unable to communicate
unwillingness to an act.” § 794.011(1)(e), Fla. Stat. (2016). The State’s
evidence, viewed in the light most favorable to the State, showed an
inebriated K.N. falling to the ground twice (at the restaurant and in front of
her apartment building) and hitting her head with the first fall; her drifting in
and out of consciousness during the entire time she was in Abdallah’s
presence; Abdallah carrying K.N. from the sidewalk to the entry of her
apartment, propping her up during the elevator ride; and Abdallah carrying
K.N. to her bedroom and placing her on her bed where she lay limp. The
extensive evidence of K.N.’s helplessness was sufficient for the jury to infer
that K.N. was unable to communicate an unwillingness to have sexual
relations.
To establish K.N.’s physical incapacity, the State was required to
establish that K.N. was “bodily impaired or handicapped and substantially
11 limited in ability to resist or flee.” § 794.011(1)(j), Fla. Stat. (2016). The
evidence adduced by the State showed that K.N. was, by any objective
measure, “bodily impaired” by her extreme inebriation. K.N. exited Abdallah’s
car and collapsed to the sidewalk. She was unable to walk. She could not
open her apartment door. After entering the apartment, Abdallah made the
presumptuous decision to take K.N. directly to her bedroom where he placed
her on her bed. Lacking any physical or mental resolve, K.N. was in no
condition to resist Abdallah or to flee her own apartment.
We therefore conclude that the State met its burden to prove the
existence of the statutory enhancements of sexual battery with specified
circumstances. Arroyo, 252 So. 3d at 379.
c. Coley v. State distinguished
Abdallah not only argues that the State failed to present competent,
substantial evidence that the sexual battery was not consented to, he also
suggests that, based on this Court’s decision in Coley v. State, we are
required to reverse. Indeed, in Coley, we reversed the defendant’s criminal
conviction for sexual battery, because at trial the victim “conceded that she
may have given consent to the acts in question. That concession gives rise
to a reasonable doubt with respect to the offense of battery.” Coley, 616 So.
2d at 1022. Abdallah analogizes the victim’s express concession in Coley to
12 a concession he argues K.N. has made in the instant case. According to
Abdallah, because K.N. has no recollection of most of the events of that
Friday night, she “concedes” Abdallah’s version that she was a willing
participant in their sexual encounter. As a result, Abdallah maintains that, at
trial, he raised a reasonable doubt as to the element of consent. Id.
We do not, though, read Coley so broadly. In Coley, the victim
expressly conceded that she may have given consent to the acts in question
– a fact not present in the instant case. Further, the evidence in Coley also
showed “that [the victim] was physically able to communicate at all relevant
times” and able to “describe the sexual acts charged in the information.” Id.
at 1020. The Coley court determined that “there is no evidence which would
support a finding, beyond a reasonable doubt, of a physical inability to
communicate unwillingness.” Id. at 1021. We view these distinctions as
critically important for, in our case, there was no express concession of
consent, and, as discussed in section II. A. 1. b. (iii), supra, the evidence was
sufficient to establish that K.N. was physically unable to communicate
unwillingness.
Coley therefore is distinguishable and, contrary to Abdallah’s
argument, does not compel reversal of Abdallah’s conviction. Accordingly,
13 we will not disturb the jury’s verdict on the two counts of sexual battery with
specified circumstances.
2. The felony burglary charge – section 810.02
Abdallah argues that the trial court erred by denying his motion for
judgment of acquittal with regard to the burglary charge. Section 810.02
defines a “remaining in” burglary as “a licensed entry, remaining in a
dwelling, structure or conveyance . . . [t]o commit or attempt to commit a
forcible felony, as defined in s. 776.08.” § 810.02(1)(b) 2.c., Fla. Stat. (2016).
Burglary is a first-degree felony “if, in the course of committing the offense,
the offender . . . [m]akes an assault or battery upon any person.” §
810.02(2)(a), Fla. Stat. (2016).
Abdallah’s argument mirrors his argument with regard to the sexual
battery charge – because Abdallah asserts that he cannot be found guilty of
sexual battery, then the burglary charge must also fail. Considering our
holding in section II. A. 1., supra, that affirms Abdallah’s sexual battery
conviction, we conclude that the State provided competent, substantial
evidence that Abdallah remained in K.N.’s apartment (after Adriana
instructed him to leave) for the purpose of committing the charged offense.
Thus, concluding that the State presented sufficient evidence of the
14 elements of felony burglary, we affirm the trial court’s denial of Abdallah’s
motion for judgment of acquittal of the burglary charge.
B. Special Jury Instruction6
Abdallah next asserts that the trial court abused its discretion by
declining to give the following “good faith” special jury instruction proffered
by Abdallah:
Good-Faith is a complete defense to sexual battery on an [sic] physically helpless or physically incapacitated person. If the defendant acted in good faith, sincerely believed the victim was a willing participant and consented to the sexual acts, the Defendant cannot be found guilty of sexual battery upon a physically helpless or incapacitated person. The state of mind of the Defendant is relevant to determine whether or not he violated the law.
To receive a special jury instruction, a defendant must demonstrate:
“(1) the special instruction was supported by the evidence; (2) the standard
instruction did not adequately cover the theory of defense; and (3) the special
instruction was a correct statement of the law and not misleading or
confusing.” Stephens v. State, 787 So. 2d 747, 756 (Fla. 2001) (footnotes
omitted). Because Abdallah maintained that this special jury instruction
6 We review a trial court’s denial of a defendant’s request for a special jury instruction for abuse of discretion. Talley v. State, 260 So. 3d 562, 568 (Fla. 3d DCA 2019).
15 would have reflected his theory of defense, he argues that the trial court
committed reversible error in refusing to give the instruction to the jury.
A special jury instruction, though, is not warranted if the standard jury
instruction adequately addresses the relevant legal standard. Id. at 755. The
standard jury instructions on sexual battery under specified circumstances
include the element of consent and employ section 794.011(1)(a)’s consent
language of “intelligent, knowing, and voluntary consent.” 7 The law’s focus
7 The trial court instructed the jury on this charge as follows:
To prove the crime of Sexual Battery Under Specified Circumstances, as charged in Count II of the Information, the State must prove the following five elements beyond a reasonable doubt: 1. NIMER ABDALLAH committed an act upon [K.N.] in which the sexual organ of NIMER ABDALLAH penetrated or had union with the vagina of [K.N.] 2. [K.N.] was physically helpless to resist and/or physically incapacitated. 3. NIMER ABDALLAH’s act was committed without the consent of [K.N.]. 4. At the time of the offense, [K.N.] was 18 years of age or older; and 5. At the time of the offense, NIMER ABDALLAH was 18 years of age or older.
“Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. Consent does not mean the failure by the alleged victim to offer physical resistance to the offender.
“Union” means contact.
“Physically helpless” means that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to act; and
16 is on whether the victim consented and not on the perpetrator’s state of mind.
“State of mind is not a material fact in a sexual battery charge, nor is intent
an issue.” Coler v. State, 418 So. 2d 238, 239 (Fla. 1982).
Here, Abdallah again relies on language in Coley. Specifically,
Abdallah argues that the following passage from Coley makes his state of
mind a relevant consideration to the jury:
While the state elicited much testimony about the victim’s subjective state of mind, there is an absence of evidence to show defendant knew, or that it was apparent to defendant, that the victim was unable to give a knowing and voluntary consent.
Coley, 616 So. 2d at 1023.
Abdallah misreads Coley in this regard. The passage’s reference to
whether the defendant “knew . . . the victim was unable to give consent”
relates to the victim’s capacity to communicate, not to the general state of
mind of the defendant. The victim in Coley was able to communicate, and
she conceded that she “may have consented.” Id. at 1021. Here, the
evidence showed that K.N. was not communicative, and did not have the
capacity to consent. On this record, we are unable to conclude that the trial
court abused its discretion by denying the special jury instruction.
“Physically incapacitated” means that a person is bodily impaired or handicapped and substantially limited in his or her ability to resist or flee an act.
17 C. The Uber Settlement 8
Regarding K.N.’s settlement of her civil case against Uber, Abdallah
challenges both (i) the trial court’s denial of his motion to compel non-party
Uber to provide Abdallah with a copy of the settlement agreement, and,
relatedly, (ii) the trial court’s limitations placed on Abdallah’s ability to cross-
examine K.N. with regard to the settlement. We address each in turn.
1. Motion to compel settlement agreement
Before the criminal trial, K.N. entered into a confidential settlement
agreement with Uber, and Abdallah sought to compel Uber to produce the
settlement agreement. While the trial court denied Abdallah’s motion to
compel and did not conduct an in camera review of the document as
Abdallah had requested, the trial court did allow Abdallah to conduct a
second deposition of K.N. where Abdallah was allowed to inquire into the
Uber lawsuit and settlement agreement.
Abdallah wanted to review the settlement agreement in order to assess
whether K.N.’s narratives in the civil and criminal proceedings were
consistent. Abdallah argued that the settlement agreement was necessary
8 The trial court’s denial of Abdallah’s motion to compel the production of the Uber settlement agreement and its limitation on Abdallah’s cross- examination of K.N. on the settlement itself are reviewed for abuse of discretion. McDuffie v. State, 970 So. 2d 312, 324 (Fla. 2007).
18 to allow his defense to test K.N.’s bias and motives. The subject matter and
allegations of the class action civil complaint against Uber (of which K.N. was
one plaintiff), however, were open and of record. Uber appeared below and
represented to the trial court that the settlement agreement itself did not
contain factual statements or admissions or information related to Abdallah’s
criminal trial. The State argued that the settlement agreement was irrelevant,
and that Abdallah sought it in order to plant a suggestion with the jury that
K.N. was made whole by her financial settlement with Uber, which the jury
should consider when deciding whether to convict Abdallah.
The record reflects that the trial court balanced these competing
interests and ultimately decided not to compel Uber to produce the
settlement agreement. While it might have been better practice for the trial
court to have conducted an in camera review of the settlement agreement,
see Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla.
2003), on this record we are unable to conclude that the trial court abused
its discretion in finding both that K.N.’s motives for entering into the
settlement agreement, and the financial terms of K.N.’s settlement with Uber,
19 were irrelevant to the criminal proceedings. See §§ 90.401, 90.402 (Fla. Stat.
(2016). 9
2. Limitation on cross-examination
Prior to trial, the State filed a motion in limine to preclude all mention
of K.N.’s lawsuit against Uber. In its ruling on the State’s motion, the trial
court allowed some questioning of K.N. about aspects of her dealings with
Uber, but limited Abdallah from inquiring into what the trial court deemed
issues collateral to the criminal case. The trial court restricted Abdallah to
questions about (i) the timing of K.N.’s initial contact with Uber, (ii) K.N.’s
filing a lawsuit against Uber, (iii) whether the lawsuit was settled, and (iv)
whether K.N. received settlement compensation.
Arguing that the trial court’s order was too limiting, prior to trial
Abdallah made a proffer seeking leave to address additional areas of inquiry:
(i) whether K.N.’s allegation in the civil lawsuit contradicted her testimony in
the criminal trial that she had no memory of the sexual battery; (ii) K.N.’s
9 While the trial court excluded the settlement agreement on relevance grounds, it appears that the trial court also excluded it because of its potential for prejudice. See State v. Aylesworth, 666 So. 2d 181, 182 (Fla. 2d DCA 1996) (holding that exclusion of civil settlement agreements in a criminal prosecution was appropriate when their potential prejudice outweighed their probative value).
20 desire, stated in a letter to Uber, that the case not be submitted to arbitration
so she (and her co-plaintiffs) could litigate publicly; (iii) the terms of the
settlement agreement; (iv) the amount of the settlement; and (v) whether
K.N. gave a deposition in the civil lawsuit. Abdallah wanted to cross-examine
K.N. on the settlement agreement to show: (i) K.N.’s financial interest in
Abdallah’s conviction; (ii) whether the settlement agreement imposed on
K.N. any obligation to maintain the same narrative of events in the criminal
case that K.N. had asserted in her civil claim; and (iii) whether her testimony
was consistent with her explication of events in the civil case.
The trial court denied Abdallah’s proffers in this regard, and at trial
sustained multiple State objections to Abdallah’s attempts to exceed the
limitations it had placed on such inquiry. Abdallah argues that the trial court’s
limitations on his ability to question K.N. about her settlement with Uber
thwarted his right to conduct a full and fair cross-examination, see Docekal
v. State, 929 So. 2d 1139, 1142 (Fla. 5th DCA 2006), thus undermining his
right to examine K.N. for bias or improper motive. See Harden v. State, 87
So. 3d 1243, 1249 (Fla. 4th DCA 2012).
Ordinarily a defendant may cross-examine a witness regarding her civil
lawsuit related to the crime. Graves v. State, 937 So. 2d 1286, 1290 (Fla. 4th
DCA 2006). As mentioned above, though, the trial court found that the terms
21 of the settlement agreement were not relevant to the criminal proceedings.
Additionally, because Abdallah sought to use the lawsuit and settlement
agreement to show bias on K.N.’s part, the trial court weighed prejudice
versus the probative value of this potential evidence. The trial court
determined that allowing extensive cross-examination into the terms of the
settlement agreement would mis-direct the jury down a path toward collateral
matters. Nelson v. State, 704 So. 2d 752, 754 (Fla. 5th DCA 1998) (holding
that cross-examination may be limited when the probative value of the
evidence is outweighed by its prejudicial impact on the jury).
While we generally approve of the trial court’s approach in limiting jury
exposure to the civil lawsuit, we conclude that the trial court’s ruling was too
limiting in one respect. Given K.N.’s inability to recollect the night’s events, it
appears that what K.N. told Uber regarding the events would be within the
permissible scope of cross examination. See Pearce v. State, 880 So. 2d
561, 569 (Fla. 2004) (“[I]ntroduction of a prior statement that is inconsistent
with a witness’s present testimony is . . . one of the ways to attack the
credibility of a witness. . . . To be inconsistent, a prior statement must either
directly contradict or be materially different from the expected testimony at
trial.”).
22 Nonetheless, given Abdallah’s statement to the police, the public
availability of the allegations in the civil lawsuit, Adriana’s account of the
night’s events, the DNA evidence, the surveillance video, and K.N.’s
testimony about the existence of the Uber lawsuit, we further conclude that
any error by the trial court in limiting Abdallah’s cross-examination in this
regard was harmless. There is not a reasonable possibility that this error,
examined in light of the totality of the evidence, contributed to the verdict.10
See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
D. Expert Testimony 11
Next, we address Abdallah’s argument that the trial court reversibly
erred by allowing Dr. Lisa Reidy – whose lab had performed the testing on
K.N.’s blood and urine after K.N. had been examined by the rape treatment
center – to give opinion testimony as to whether K.N. had been drugged on
the night in question. Over defense objection, the State qualified Dr. Reidy
as an expert to offer her opinions on the potential impact on K.N. of
combining three alcoholic drinks with a central nervous system depressant
10 The record reflects that the facts described in the civil lawsuit’s complaint are substantially similar to those developed in the criminal trial. 11 We review a trial court’s admission of expert testimony for abuse of discretion. Medina v. State, 260 So. 3d 419, 422 (Fla. 3d DCA 2018).
23 drug. See § 90.702, Fla. Stat. (2021). Specifically, the State sought Dr.
Reidy’s view on how the date rape drug GHB (Gamma-Hydroxybotric) might
have affected K.N. given K.N.’s testimony that she, a casual drinker who had
not before been so intoxicated, had consumed three alcoholic drinks over
the course of the evening.
Over defense objection, the State showed Dr. Reidy the surveillance
video of K.N. departing the Uber and entering her apartment building, and it
sought Dr. Reidy’s opinion testimony as to how both K.N. (and Adriana)
might have become so intoxicated.
Dr. Reidy opined that K.N. did not behave like a woman who had
consumed merely three alcoholic drinks. Dr. Reidy opined that K.N.’s
behavior was more consistent with a mixing of alcohol and a central nervous
system depressant. Of critical importance, there was no testimony during the
questioning of Dr. Reidy, or at any other time during the trial, to suggest that
Abdallah had drugged K.N. Indeed, the trial court offered to give a limiting
instruction to this effect, which the defense declined. The State argues that
Dr. Reidy’s testimony was offered for the purpose of establishing the
connection between K.N.’s profound intoxication and her ability to consent.
Abdallah argues that Dr. Reidy’s testimony was highly prejudicial
because (i) implicitly, it led the jury to believe that Abdallah had drugged K.N.,
24 and (ii) it created an inference that K.N. could not effectively communicate
consent because she was drugged. We disagree.
The trial court determined that Dr. Reidy’s expert testimony was more
probative on the issue of consent and K.N.’s physical incapacitation than it
was unfairly prejudicial to Abdallah or misleading to the jury. See § 90.403,
Fla. Stat. (2016); McDuffie, 970 So. 2d at 327 (“In performing the balancing
test to determine if the unfair prejudice outweighs the probative value of the
evidence, the trial court should consider the need for the evidence, the
tendency of the evidence to suggest an emotional basis for the verdict, the
chain of inference from the evidence necessary to establish the material fact,
and the effectiveness of a limiting instruction.”). The trial court offered to give
– but Abdallah declined – a special, limiting instruction to ameliorate any
potential prejudice. Under these circumstances, we cannot conclude that the
trial court abused its discretion in allowing Dr. Reidy’s testimony.
E. Admission of video surveillance footage 12
Finally, Abdallah argues that the trial court abused its discretion by
admitting into evidence video surveillance footage and accompanying
photographs from K.N.’s apartment building without proper authentication.
12 The trial court’s ruling on the authentication of the surveillance video from K.N.’s apartment building is reviewed for an abuse of discretion. Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016).
25 “Authentication or identification of evidence is required as a condition
precedent to its admissibility. The requirements of this section are satisfied
by evidence sufficient to support a finding that the matter in question is what
its proponent claims.” § 90.901, Fla. Stat. (2016).
There are two methods to authenticate evidence such as an apartment
building’s surveillance video: the pictorial method and the silent witness
method. Wagner v. State, 707 So. 2d 827, 830 (Fla. 1st DCA 1998). The
pictorial method depends upon testimony of a witness, based on personal
knowledge, that the video or photo is a fair and accurate portrayal. The silent
witness method depends upon proof that the process that produced the
video or photo was reliable. Id.; see also City of Miami v. Kho, 290 So. 3d
942, 944 (Fla. 3d DCA 2019).
The trial court determined – and we agree – that the surveillance video
was authenticated through both methods. First, the video was authenticated
through the pictorial method as a fair and accurate representation of the time
period after K.N. and Adriana’s exit from Abdallah’s car. K.N. and Adriana
testified that they reviewed the surveillance video and recognized
themselves and the environment depicted in the video. K.N. recognized the
clothing she wore that night. Adriana recognized the third person with them,
26 Abdallah. Their imperfect memories of certain events from that night do not
preclude their ability to recognize themselves and each other.
Additionally, the State linked up the women’s testimony with that of the
investigating detective, Hector Aleman, who was able to authenticate the
video through the “silent witness” authentication method. With a subpoena,
Detective Aleman obtained the surveillance video from the security office of
K.N.’s apartment building. With a video forensics detective, he downloaded
the video and then impounded it in the property room. Because Detective
Aleman discovered that a part of the video he had obtained was missing, he
returned to the apartment building and retrieved the missing video clip on a
USB drive. The full surveillance video showed K.N., Adriana and Abdallah
outside K.N.’s apartment building and inside the elevator. The video
introduced into evidence at trial was the same video that Detective Aleman
recovered from K.N.’s apartment building. Because the video was
appropriately authenticated, the trial court did not abuse its discretion by
allowing the jury to view it.
III. Conclusion
We affirm the trial court’s denial of Abdallah’s motions for judgment of
acquittal. The State presented competent, substantial evidence supporting
the elements of the crimes for which Abdallah was convicted. The trial court
27 did not abuse its discretion by denying Abdallah’s request for a special jury
instruction. While in some instances we might have ruled differently, we also
affirm the challenged evidentiary rulings by the trial court; any error limiting
inquiry into K.N.’s lawsuit against Uber was harmless.
Affirmed.