Shaara v. State

581 So. 2d 1339, 1991 WL 75540
CourtDistrict Court of Appeal of Florida
DecidedJuly 18, 1991
Docket90-758
StatusPublished
Cited by17 cases

This text of 581 So. 2d 1339 (Shaara v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaara v. State, 581 So. 2d 1339, 1991 WL 75540 (Fla. Ct. App. 1991).

Opinion

581 So.2d 1339 (1991)

Brian Leslie SHAARA, Appellant,
v.
STATE of Florida, Appellee.

No. 90-758.

District Court of Appeal of Florida, First District.

May 13, 1991.
On Motion for Rehearing July 18, 1991.

*1340 Barbara Linthicum, Public Defender, and Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Brian Shaara appeals a final judgment adjudicating him guilty of one count of grand theft of an automobile, one count of kidnapping with a weapon, three counts of sexual battery while armed with a weapon, and one count of attempted robbery with a deadly weapon. Appellant raises three points. We find no error in the points concerning the prosecutor's argument and the sufficiency of the evidence to prove grand theft. The state properly concedes error regarding the adjudication of guilt of three counts of sexual battery with a deadly weapon, charges not made by the amended information; but we agree with the state that the trial court, pursuant to section 924.34, Florida Statutes (1989), is authorized to enter convictions for sexual battery with threat of serious force as a necessarily lesser-included offense.

The amended information charged Shaara with one count of grand theft of an automobile (§ 812.014, Fla. Stat.), one count of armed kidnapping (§§ 775.087(1) and 787.01, Fla. Stat.), three counts of sexual battery with threatened use of force or violence likely to cause serious injury (§ 794.011(4)(b), Fla. Stat.), and one count of attempted robbery with a weapon (§§ 812.13 and 777.04, Fla. Stat.).

The evidence proved that Shaara got into a car in which the victim was sitting, drove the car to a wooded area, held the cutting edge of a knife to her wrist and told her that "this is a rape," ordered her to remove her clothes, and then forced her to have sexual intercourse with him at least three times. At some point during the incident, Shaara put the knife away, but he threatened to get the knife out again each time the victim resisted. For reasons not explained nor made apparent in the record, the jury instructions on the sexual battery *1341 counts, prepared by the state and approved by defense counsel and the court, were phrased in terms of sexual battery by use of a deadly weapon, an offense proscribed by section 794.011(3), Florida Statutes, rather than the offense actually charged. The verdict form described the charges under counts III, IV, and V as sexual battery "while armed with a deadly weapon." The jury returned a verdict of guilty on all counts and the trial court entered judgment in accordance with the verdict.[1]

Shaara's first point complains that improper remarks made by the prosecutor during closing argument deprived him of his right to a fair trial by an impartial jury. While some of these remarks, discussed below, were undoubtedly improper, none of them amounted to reversible error.

Appellant argues the impropriety of the prosecutor's comments that the victim cried during cross-examination when she recalled the events that took place. However, the record indicates that the prosecutor's comments were invited by the defense's previous statements during argument that the victim did not cry when she recalled certain matters, and thus are not grounds for reversal. Clark v. State, 363 So.2d 331, 335 (Fla. 1978).

Shaara next complains that the prosecutor's comment to the jury to consider what the victim had gone through and was now going through amounted to an improper "golden rule" argument. We disagree; the prosecutor did not ask the jurors to place themselves in the victim's position, Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), nor to think how they would feel if the crime happened to them, Lucas v. State, 335 So.2d 566 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla. 1980). See also Bullard v. State, 436 So.2d 962 (Fla. 3d DCA 1983), rev. denied, 446 So.2d 100 (Fla. 1984).

Shaara complains of the following comments by the prosecutor:

It would appear that the only thing he forgot maybe in the whole story is at the end of the time he gave her a hundred dollars or something for a good time. He left that part out of the story —

We agree under the circumstances shown by the record that these comments were improper because they could have unfairly and adversely affected the jury's impartiality and disparaged his defense of consent. However, we do not consider the comment reversible error, because the trial court sustained the defense objection thereto and instructed the prosecutor to confine his argument to the evidence. Shaara did not move to strike that comment from the record and request a curative instruction when he made his objection and motion for mistrial. Palmer v. State, 486 So.2d 22, 23 (Fla. 1st DCA 1986). See also Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982). We also agree that the prosecutor's comment that the victim was asking the jury for justice was similarly improper. Harper v. State, supra; Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983). However, again Shaara did not move to strike and request any curative instruction when he made his objection and motion for mistrial based on that comment. Neither of these two comments, taken in context, was sufficiently grievous that the prejudice attributable to them could not have been cured by striking the remarks with curative instructions at the time.

Appellant also argues that, after the prosecutor had shown that Shaara had prior criminal convictions, the trial court erred in allowing the prosecutor to identify and comment to the jury on the nature of those prior convictions. This was not error under the particular circumstances in this case, however. Where a defendant takes the stand and thereby places his credibility in issue, it is proper for the prosecutor to suggest that the jury may consider the defendant's previous convictions in determining his credibility. Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987); Wilkins *1342 v. State, 383 So.2d 742 (Fla. 4th DCA 1980). Normally, the prosecutor is allowed to inquire only as to the number of prior convictions and is not permitted to ask the defendant to identify the particular crimes for which he was convicted. Johnson v. State, 380 So.2d 1024 (Fla. 1979). But where, as in this case, the defendant has volunteered information about the nature of those crimes on his redirect examination, his testimony is to be considered and weighed the same as any other witness, and argument directed at what the defendant says and does is entirely appropriate. See Johnson v. State, supra (no due process violation where the prosecutor followed the correct procedure in cross-examining the defendant about his prior convictions, and the defendant's own attorney asked him on redirect examination to identify the offenses for which he had been convicted); Mead v. State, 86 So.2d 773 (Fla. 1956) (once a defendant elects to testify, his testimony is to be weighed the same as any other witness, and argument directed at what he says and does is justified).

Shaara next contends that the circuit court erred in convicting him of sexual battery with a deadly weapon, an offense defined in section 794.011(3), because counts III, IV, and V, did not charge that offense.

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581 So. 2d 1339, 1991 WL 75540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaara-v-state-fladistctapp-1991.