       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            CARLOS GOMEZ,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-2350

                             [April 25, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No. 13006115CF10A.

  Felipe Jaramillo of The Law Office of Felipe Jaramillo, P.A., Fort
Lauderdale, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

WARNER, J.

    Appellant was convicted of armed sexual battery. On appeal, he claims
that the court erred in preventing him from cross-examining the victim,
with whom he had had a nearly twenty-year marriage, on her prior
allegation of rape against him. In granting a motion in limine, the court
also prohibited appellant from cross-examining the victim about
allegations of rape she levelled against an employer. The court believed
that each inquiry violated the rape shield law. We hold that the allegations
are not covered by the rape shield law; nevertheless, because the court
found they were also irrelevant, we agree that they were inadmissible and
affirm.

   The State charged appellant with armed sexual battery of the victim in
April 2013. Appellant and the victim’s relationship began in 1996 in
Mexico. The victim testified that she married appellant in Mexico, and she
referred to appellant as her husband. They later moved to the United
States, where they had two children. In 2008, they separated, and their
relationship became very hostile.
   On the day of the incident, the victim had just taken her children to
school when appellant showed up at her apartment. He told her, “Now,
you’re going to [expletive] get it.” He said he had a knife in his backpack
and told her not to make a fuss. The victim said she didn’t scream or
make a noise, and she went inside where appellant proceeded to anally
penetrate her. When appellant took out his cell phone, she ran out, taking
her own cell phone. A neighbor saw her, and the victim went to her yard
where she called 911. The neighbor saw appellant leave the house. The
victim was taken to a sexual assault center and examined. Later,
appellant was arrested and charged.

   Prior to trial, during a deposition, the victim testified that in 2001
appellant had tried to rape her. She also testified at length about sexual
abuse by her employer years earlier. When appellant found out about this
sexual relationship with the employer, the victim claimed it was non-
consensual and that the employer repeatedly raped her. Before the start
of the trial, defense counsel sought permission to question the victim
about her past allegations of sexual assault. The court precluded
questioning of the victim both as to her allegation against the employer as
well as against appellant. The court found such evidence would violate
the rape shield law.

   At trial, in addition to recounting the sexual assault the victim testified
about her hostile relationship with appellant and the fact that she was
separated from him. They interacted mostly over the children. She
admitted that she had contact with appellant through a family friend while
he was in jail for the instant case, and she said that she did not want to
press charges further against appellant. But she never testified that she
had ever reconciled with appellant or engaged in sexual relations with him
after their separation in 2008.

   The State presented DNA evidence gathered from the victim’s
examination which included appellant’s DNA. The nurse who examined
the victim testified that the victim’s injuries were consistent with the
victim’s account of the events. A detective testified that appellant’s shoe
and backpack were found in the victim’s residence. The appellant
presented no evidence. The jury convicted appellant of armed sexual
battery, and the court sentenced him to life in prison, with a twenty-five
year mandatory minimum, for that conviction. Appellant now appeals his
conviction.

    On appeal, Gomez contends that the court abused its discretion in
refusing to allow him to cross-examine the victim regarding her prior
allegations of rape against her employer, as well as against the appellant.

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The trial court ruled that the examination of her relationship with her
employer would violate the rape shield law, section 794.022, Florida
Statutes (2013). The court also determined that the allegations were not
relevant. As to the victim’s allegation in a deposition, taken in this case,
that appellant raped her in 2002 during their relationship, the court ruled
that the appellant could cross-examine the victim about any sexual
relationship that they had subsequent to their separation, but the court
would not allow appellant to question her regarding the prior allegation of
rape. Although the rape shield law was inapplicable to either allegation of
rape by the victim, the court did not abuse its discretion in its rulings
because the evidence was not relevant in this case.

   Section 794.022(2), Florida Statutes (2013), prohibits questioning a
victim regarding a sexual relationship with others:

      Specific instances of prior consensual sexual activity between
      the victim and any person other than the offender shall not
      be admitted into evidence in a prosecution [for sexual battery].
      However, such evidence may be admitted . . . if it is first
      established to the court in a proceeding in camera that such
      evidence tends to establish a pattern of conduct or behavior
      on the part of the victim which is so similar to the conduct or
      behavior in the case that it is relevant to the issue of consent.

(emphasis added). Two points are apparent in the plain meaning of the
statute. First, it only relates to consensual sexual activity with a person
other than the accused. Second, consensual sexual activity with someone
other than the defendant may be admitted where it is so similar to the
conduct in the present case that it is relevant to consent.

    The appellant sought to introduce the victim’s prior allegation against
her employer of sexual assault. As the victim did not attribute this to prior
consensual conduct, it does not fit within the rape shield law. While prior
allegations of sexual assault may be admissible where relevant, this is an
evidentiary rule of relevancy, not a statutory prohibition. See Fehringer v.
State, 976 So. 2d 1218, 1221 (Fla. 4th DCA 2008) (finding prior allegation
of sexual assault may be admissible, even where there has been no
recantation, where the prior incident is similar).

   In this case, the court determined that the prior allegation was not
relevant, and we agree. The proffer of the incident revealed that the
incident came to light when the paternity of the victim’s youngest child
was questioned by the appellant many years earlier. The victim then
admitted to having repeated sexual relations with her employer, but

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asserted that it was not consensual. The state proffered that the victim
testified in her deposition that the employer was taking advantage of her
because of her undocumented status and threatened to have her deported
if she did not comply with his assault.

    There is no similarity between the allegations of the sexual assault by
the appellant and the sexual assault years earlier by the employer.
Moreover, even if the conduct were considered consensual, and thus
within the ambit of section 794.022(2), it would not satisfy the similarity
exception in the statute. And we cannot conclude on this record that it
would impact the victim’s credibility by showing bias or motive, because
the incidents are so dissimilar. In the employer incident, if the victim was
falsely accusing the employer of assault, she was making that claim to her
husband to counter accusations of infidelity, which is not at all like the
claims in this case. The trial court did not abuse its discretion in
concluding that those allegations did not pass the test of relevancy.

    As to the allegations of sexual assault leveled against the appellant in
the victim’s deposition, the statute does not apply. First, the allegation
was not of consensual conduct, and second, it involved the appellant. The
statute does not prohibit admission of sexual incidents between the victim
and offender. See Minus v. State, 901 So. 2d 344 (Fla. 4th DCA 2005). In
Minus, we held that evidence of a victim’s sexual relationship and prior
allegations of sexual assault against the defendant were not inadmissible
under the statute and could be evidence of bias or motive. Id. at 349.
There, the defendant claimed that the prior allegations of assault were
relevant, because the victim continued her relationship with the defendant
after her claim of assault, thus impugning the victim’s credibility as to the
charged allegations because of the similarity in the incidents. Id. at 346-
48. In this case, the appellant claimed the same relevancy, i.e., that after
making the allegation, the victim continued in a relationship with
appellant. While that may have been true with the first allegation of sexual
assault, it is not similar to the current allegation. There was no evidence
that the victim had continued in a sexual relationship with appellant (or
any relationship, other than hostile) after they separated in 2008.
Moreover, other than the fact of the allegation, there is nothing in our
record which might make the conduct similar to the incident in this case.
The court ruled that appellant could question the victim regarding any
continuing relationship, but the appellant never interrogated the victim on
this issue. 1    Without some evidence that there was a continuing


1 The lack of questioning appears to have been strategy, as defense counsel had
not decided yet whether he was going to get into her accusations that appellant

                                      4
relationship which would make relevant the prior, decade-old allegation of
sexual assault or some evidence of substantially similar conduct, we
cannot conclude that the court abused its discretion in denying admission
of the prior allegations.

   We are not unmindful of appellant’s claim that his Sixth Amendment
right to confront the victim should allow his cross-examination of the
victim on the allegations. Indeed, the supreme court has held that the
rape shield law should not be interpreted to preclude examination of a
victim on prior sexual activity where it would impede a defendant’s right
to confront a witness when the exclusion of such evidence prevents the
defendant from presenting a full and fair defense. See Lewis v. State, 591
So. 2d 922 (Fla. 1991). In Lewis, however, the excluded evidence was
proffered to show that the victim made allegations of sexual assault
against her stepfather to cover up her sexual relationship with her
boyfriend, as she was facing an impending gynecological examination
which would have revealed her sexual activity. Id. at 923.

    Clearly, a refusal to present the evidence of the victim’s prior sexual
relationship in Lewis would have decimated a very viable defense. There
is no similarly compelling evidence which impaired the defense in this
case, particularly where there was no evidence that the victim and
appellant had maintained any cordial relationship in the five years after
their separation. This, too, is a discretionary call by the trial court, and
while the court should be lenient in favor of preserving a defendant’s Sixth
Amendment right of confrontation, we cannot say that the court abused
its discretion in this case.

    The remaining issues raised by the appellant also lack merit. He
complains of a Brady violation for the State’s failure to produce
impeaching evidence of the victim’s U-Visa application, by which she could
remain in the United States as a victim of a crime. But the State neither
had possession of the visa application nor did it have control over it, and
it was equally available to the defense, who knew about it and could have
subpoenaed the application. Thus, the State had no obligation to produce
it. See Geralds v. State, 111 So. 3d 778, 787 (Fla. 2010). Next, he
challenges the admission of statements by the nurse expert that the
victim’s injuries were consistent with forced sexual assault. Such evidence
has routinely been held to be admissible. See McClean v. State, 754 So.
2d 176, 181 (Fla. 2d DCA 2000) (“District courts have held that it is
permissible for a medical expert to give an opinion as to whether injuries

had raped her in the past, even as he argued entitlement to interrogate on this
issue.

                                      5
a victim has suffered are consistent with the victim having forced sexual
intercourse.”). Appellant also challenges statements made by detectives
which he claimed were hearsay. Although the statements would qualify
as hearsay, they were harmless beyond a reasonable doubt. State v.
DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). Finally, he argues that the
prosecutor made several burden-shifting arguments in closing. Some of
the statements were not objected to, and one was in response to the
defense closing argument and was not improper. See Scott v. State, 66 So.
3d 923, 930 (Fla. 2011). The remainder we conclude were not burden-
shifting.

   For the foregoing reasons, we affirm the conviction and sentence.

CONNER and KUNTZ, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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