Tirado v. State

219 So. 3d 146, 2017 WL 1709785, 2017 Fla. App. LEXIS 6181
CourtDistrict Court of Appeal of Florida
DecidedMay 3, 2017
DocketNo. 4D15-802
StatusPublished
Cited by5 cases

This text of 219 So. 3d 146 (Tirado 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
Tirado v. State, 219 So. 3d 146, 2017 WL 1709785, 2017 Fla. App. LEXIS 6181 (Fla. Ct. App. 2017).

Opinion

Levine, J.

We are presented- in this case with the following issues: whether the trial court [147]*147erred in denying appellant’s motion for a mistrial when a state’s witness allegedly made an isolated comment on the credibility of other witnesses and non-witnesses; and whether the trial court fundamentally erred in giving the standard jury instruction that the term “union,” as used in the sexual battery statute, means “contact.” We conclude that the trial court did not abuse its discretion in denying appellant’s motion for a mistrial, and additionally, we find that the trial court’s instruction was consistent with Florida law. We also find the remaining issue on appeal to be without merit and affirm without further comment.

The eight-year-old victim and her twin sister went to visit their uncle at his home that the uncle shared with his girlfriend and his girlfriend’s father, Ruben Tirado, the appellant. After arriving at the home, the twins went outside to play, and when they returned, their mother was present, sleeping on a couch. The two girls went into a bedroom where appellant was watching television. One of the girls got into bed with appellant and the other got onto a small side bed.

As the victim was falling asleep, appellant rolled over, pulled her pants down, and pulled his own pants down. The victim told appellant to get off of her and tried to push him .off, but was unable. When the victim’s sister noticed the victim struggling, the twin attempted to get appellant off of the victim as well, but could not. Although at trial the victim stated that appellant’s penis “touched” her “butt,” the victim told others shortly after the incident occurred that appellant had put his penis “in her butt.” When the victim’s uncle entered the room, appellant told the victim leave and to pull her pants up.

A subsequent medical examination of the victim did not show signs of injury. However, semen was found both in and around the victim’s anus and vagina, and DNA testing showed the semen belonged to appellant.

After appellant’s arrest and before being interviewed, he was kept in an interview room, alone, for several hours while a detective' interviewed the victim and other witnesses. At trial, appellant argued that the state must introduce the entire tape of his time inside of the interview room to show that appellant was uncomfortable, which, he argued, was relevant to the vol-untariness of his statement to police.

The state asked the detective why appellant was kept waiting in the interview room. The detective responded that she wanted to speak to the witnésses and the victim before speaking to appellant. The state asked the detective why she did this and she responded, “Because I want to get the most accurate information as to what occurred.” Appellant objected, argued the witness was commenting on the accuracy of others’ statements, and moved for a mistrial. The state asserted that it was not the witness’s intention to comment on anyone else’s testimony. The court sustained appellant’s objection and told the state to rephrase the question, but denied appellant’s motion for a mistrial.1 The state changed to a • different line of questions and did not later discuss the • detective’s comment.

Following the close of evidence, the court gave the standard jury instruction on sexual battery:

To prove the crime of Sexual Battery upon a person less than twelve years of age the State must prove the following [148]*148three elements beyond a reasonable doubt:
[[Image here]]
Two, [appellant] committed an act upon [the victim] in which the penis of [appellant] penetrated or had union with the anus of [the victim].
[[Image here]]
And the term union méans contact.

Appellant did not object to the court’s definition of “union.”

The jury convicted appellant of both sexual battery and false imprisonment. Appellant appealed.

Appellant argues that the trial court erred in denying his motion for a mistrial after the detective commented on the credibility of the other witnesses and non-witnesses. We review the trial court’s decision to deny a mistrial for abuse of discretion. See Power v. State, 605 So.2d 856, 861 (Fla. 1992).

“A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial.” Hamilton v. State, 703 So.2d 1038, 1041 (Fla. 1997). For example, in Tumblin v. State, 29 So.3d 1093 (Fla. 2010), a police officer testified he told another officer that the defendant’s co-defendant was reliable. The co-defendant’s testimony in that case was crucial as it was the only eyewitness testimony that the defendant had committed a crime. The Florida Supreme Court held the trial court abused its discretion in denying the defendant’s motion for a mistrial. Id. at 1104. In contrast, in Hamilton, a state’s witness unexpectedly testified that the defendant committed a collateral murder. The Florida Supreme Court found that the trial court did not abuse its discretion in denying a mistrial because “the improper comment was unanticipated by the State and was brief.” 703 So.2d at 1041.

In the present case, we first note that the witness’s testimony was not as crucial to showing guilt as the testimony was in Tumblin because appellant’s semen was found both in and around the victim’s anus and vagina. Furthermore, although the detective’s statement could be interpreted as vouching for the credibility of others, this testimony appears to have been “unanticipated” and was “brief.” See Hamilton, 703 So.2d at 1041. We therefore conclude that the trial court did not abuse its discretion in denying appellant’s motion for a mistrial because the detective’s statement did not “vitiate the entire trial.” See id.

Appellant next argues that the trial court fundamentally erred in giving the standard jury instruction that defines “union,” under the sexual battery statute, as meaning “contact.” For an error to be fundamental, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991) (citation omitted).

“Sexual battery” is defined as “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.” § 794.011(1)(h), Fla. Stat. (2012). The standard jury instruction the trial court gave defines “union” as meaning “contact.” Fla. Std. Jury Instr. (Crim.) 11.1. Appellant contends that “[s]exual union is the reciprocal of penetration.” Thus, he argues that mere “contact” between the sexual organs of one and the oral, anal, or vaginal orifice of another is insufficient to prove sexual battery.

We note that the standard jury instruction in this case is consistent with the Florida Supreme Court’s decision in Seagrave v. State, 802 So.2d 281 (Fla. 2001), which dealt with the assessment of victim [149]*149injury points for “sexual contact.” In Seag-rave, the court held that the assessment of “sexual contact points” was not limited to only criminal acts involving “the union of the sexual organ of one person with the oral, anal or vaginal opening of another.” Id. at 283. The supreme court stated,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

JEROMEE SAFFOLD v. STATE OF FLORIDA
District Court of Appeal of Florida, 2021
NEEMIAS RAMIREZ RAMOS v. STATE OF FLORIDA
274 So. 3d 395 (District Court of Appeal of Florida, 2019)
BRITTON BLACKWOOD v. STATE OF FLORIDA
243 So. 3d 417 (District Court of Appeal of Florida, 2018)
JEFRO T. PHILLIPS v. STATE OF FLORIDA
District Court of Appeal of Florida, 2018
Phillips v. State
238 So. 3d 308 (District Court of Appeal of Florida, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
219 So. 3d 146, 2017 WL 1709785, 2017 Fla. App. LEXIS 6181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tirado-v-state-fladistctapp-2017.