         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-1990
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JASON DON THOMPSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

                        February 9, 2018


PER CURIAM.

     Jason Thompson was convicted of lewd and lascivious
molestation of a child under twelve. At trial, the State presented
evidence that Thompson’s daughter had an eleven-year-old friend
who spent a night at Thompson’s home. Thompson sneaked into
the room where the victim slept, and he rubbed the victim’s genital
region.

    On appeal, Thompson raises four issues. First, he contends
the trial court erred by admitting child hearsay statements
without conducting a balancing test under section 90.403, Florida
Statutes (2015). He argues that although the trial court made
findings of reliability under section 90.803(23), * the court was still
obligated “to conduct an analysis of whether the probative value of
the statements was outweighed by the danger of presentation of
repetitive and cumulative evidence under the protection afforded
by section 90.403.” But by admitting the evidence, the trial court
necessarily rejected any argument that prejudice from cumulative
evidence outweighed any probative value. The trial court did not
articulate any balancing consideration, but “there is no
requirement under section 90.403 that the court must make
findings on the record or otherwise, to cause the record to reflect
the specific reasoning applied by the court in overruling an
objection that evidence is cumulative.” Reynolds v. State, 660 So.
2d 778, 781 (Fla. 4th DCA 1995). Therefore, Thompson has not
shown an abuse of discretion.

     Second, Thompson argues that prosecutor’s improper
comment in opening, along with a misstatement of law, led to
fundamental error. The prosecutor referred to Thompson as a
“boogeyman,” and the trial court promptly sustained an objection.
Thompson did not seek a curative instruction or move for a
mistrial, and the inappropriate comment was not sufficient to
warrant a new trial under the fundamental-error standard. See
Carroll v. State, 815 So. 2d 601, 622 (Fla. 2002) (prosecutor’s
reference to defendant as the “boogie man” and a “creature that
stalked the night” was not fundamental error); see also Williams
v. State, 213 So. 3d 1123, 1125 (Fla. 1st DCA 2017). We similarly
reject Thompson’s argument that the prosecutor’s alleged
misstatement of law led to fundamental error. See Dicks v. State,
75 So. 3d 857, 858-60 (Fla. 1st DCA 2011) (rejecting argument that




    *   Section 90.803(23)(a)1., Florida Statutes (2015), makes
admissible statements of children describing acts of sexual abuse
if “[t]he court finds in a hearing conducted outside the presence of
the jury that the time, content, and circumstances of the statement
provide sufficient safeguards of reliability.” The court must make
specific findings of fact regarding its ruling under that provision,
id. § 90.803(23)(c), which the trial court did. Thompson has not
challenged the trial court’s findings of reliability.

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prosecutor’s misstatement of law during closing argument led to
fundamental error).

    Third, Thompson contends the trial court erred in allowing
improper opinion testimony about Thompson’s daughter’s
credibility. The testimony had to do with another victim’s
experience with Thompson, an incident that was introduced as
similar-act evidence under section 90.404(2)(b), Florida Statutes
(2015). We conclude the testimony was in fact not improper
opinion, and we find no abuse of discretion.

     Finally, Thompson argues the court committed fundamental
error by failing to instruct the jury on the lesser-included offense
of an unnatural and lascivious act. But as Thompson
acknowledges, the offense of unnatural and lascivious act is not a
necessary lesser-included offense of lewd and lascivious
molestation, but a permissive one. Fla. Std. Jury Instr. (Crim)
11.10(c). A court’s failure to give an instruction on a permissive
lesser-included does not constitute fundamental error. See
Khianthalat v. State, 974 So. 2d 359, 361 (Fla. 2008) (noting that
“[u]pon request, a trial judge must give a jury instruction on a
permissive lesser included offense if . . . two conditions are met”
(emphasis provided)). Thompson did not request such an
instruction, and the trial court was not obligated to give one.

    AFFIRMED.

LEWIS, WETHERELL, and WINSOR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Courtenay H. Miller,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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