         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-4539
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KIRBY KINES,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Clay County.
John H. Skinner, Judge.

                         March 8, 2018


PER CURIAM.

     In this appeal from his conviction for sexual battery on a
person physically helpless to resist, Kirby Kines asserts that
fundamental error occurred when the trial court admitted a
redacted version of Kines’ recorded interview with Detective
Monroe because the jury heard Monroe express the opinion that
Kines was guilty and accuse Kines of lying when Kines denied the
victim’s accusations. We disagree and affirm.

     At trial, defense counsel announced that he had no objection
to the state introducing a redacted version of the recorded
interview, during which the following exchange occurred between
Detective Monroe and Kines:
     THE DETECTIVE: . . . . Let me explain to you how
this works. Okay. When someone alleges that they’ve
been sexually assaulted, okay, we do a Sexual Assault Kit
on them. And basically what that entails is DNA swabs
will be rubbed basically all over different areas of her
body. And anyone that had sex with her, it’s gonna show
up. Okay. So when I’m talking to you here, I want you
to tell me the truth. I’m pretty confident this is what
happened. All right.

     I think that Spencer was in there too and I think
Spencer had sex with her too. And I don’t know—I wasn’t
there. Okay. I wasn’t there. She said: Let’s do it. Let’s
have sex. She’s into it and she doesn’t, you know—I just
don’t want to (unintelligible) because I wasn’t there. You
see what I’m saying? If it happened and you seem to
think at the time: Hey, look. She’s into it. She’s okay
with it and she’s not pushing it—not pushing me away or
telling me no or maybe she even wants to do it or maybe
she’s flirting a little bit, maybe (unintelligible)—a lot of
times guys would get mixed signals when you go to the
party (unintelligible) whatever. And then if you’ve been
drinking, taking a couple shots too, I think you agree too
(unintelligible) the whole time you’re thinking with the
wrong head.

     Like I said, I want you to start over and tell me the
truth. All right. Man-to-man. In the terms. Tell me the
truth of what happened. And if you and Spencer talked
about it afterwards: Hey, this happened. Or hey, crap,
she’s alleging this stuff, I’m going to find all that stuff out
too, so I just really want you to be truthful because I need
to know what your involvement is, okay.

     She said that you were really—you were nice to her
and you tried to help her out, but I still think that you had
sex with her.

     THE DEFENDANT: I did not.

    THE DETECTIVE: Okay so you didn’t have sex with
her at all.
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         THE DEFENDANT: No, sir.

         THE DETECTIVE: Okay. So that’s what you’re
    gonna stick with. Because I’m going find out probably if
    you did. I mean, I’m going to find—if you did, I’m going
    to find out. I don’t want to—I don’t want you to bullshit
    me. One chance to tell me the truth. And that’s where
    we’re at. Final words.

         THE DEFENDANT: I did not.

(Emphasis added). After Kines consented to a buccal swab,
Monroe stated: “So if you’re telling the truth, perfect. Great.
(Unintelligible). All right. But if you did have it, it’s gonna have
your DNA, it’s gonna be a match, and then you’re gonna have to
come back and meet me and say, well: I wasn’t a hundred percent
truthful the first time.” Kines again denied having sex with the
victim, but admitted that his sperm was probably on his bedsheets
and that there might be DNA on the victim’s body because she
slept on those sheets.

     On appeal, Kines claims that the admission of the redacted
interview constituted fundamental error because the jury heard
Detective Monroe express the opinion that Kines was guilty and
accuse Kines of lying when Kines denied the victim’s accusations.
We disagree. First, there was no objection to the admission of the
interview, and nothing said by Detective Monroe compared with
the firm statements of opinion, assertions of guilt, and prejudicial
statements condemned in Jackson v. State, 107 So. 3d 328 (Fla.
2012). Detective Monroe never stated his personal opinion that
Kines was guilty of raping the victim. Although Detective Monroe
provided his belief that Kines and his friend, Spencer Andres, had
sex with the victim, he did so after reviewing the victim’s
statement and then followed that with the comment that it might
have been consensual.         Furthermore, Detective Monroe’s
questioning suggested that he did not believe Kines when he
denied having sex with the victim, but Monroe never expressly
accused Kines of lying. Instead, he confronted Kines with the fact
that a sexual assault examination would be performed on the
victim and cautioned Kines that his denial might come back to
haunt him if his DNA was found on the victim.

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     In response, Kines conceded that his DNA might be on the
victim because she had been in his bed. Although some of Monroe’s
statements might have been objectionable, they were an isolated
part of the trial and were small in comparison to evidence that
Kines’ DNA was found on swabs taken from the victim, which
corroborated the testimony of the victim and Spencer Andres.
Accordingly, any error did not reach down into the validity of the
trial to the extent that a guilty verdict could not have been
obtained without assistance of the alleged error. See Sheppard v.
State, 151 So. 3d 1154, 1165-68 (Fla. 2014) (holding that admission
of the murder defendant’s videotaped statement did not amount to
fundamental error, even though some of the detective’s comments
were improper statements of belief that the defendant was lying
and that he was either the shooter or driver, where the admission
of the videotape did not reach down into the validity of the trial
itself to the extent that a guilty verdict could not have been
obtained without assistance of the videotape).

     Moreover, we agree with the state that any claim of
fundamental error was waived because defense counsel invited
error when he announced that he had no objection to the admission
of the redacted interview and when he referred to the interview
during his closing argument. See Louidor v. State, 162 So. 3d 305,
311 (Fla. 3d DCA 2015) (holding that any claim of fundamental
error arising from the admission of a redacted interview—during
which police officers gave opinions as to the murder defendant’s
guilt—was waived where defense counsel invited error by
stipulating to admission and playback of the video and
affirmatively relying on the video throughout trial). It appears
that defense counsel may have made a strategic decision to include
the interview in order to demonstrate that Kines’ refusal to confess
demonstrated that only a truly innocent person could withstand
such an interrogation. Id. at 312.

    AFFIRMED.

WETHERELL, ROWE, and JAY, 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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Benjamin R. Kelley, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Michael Schaub, Assistant
Attorney General, Tallahassee, for Appellee.




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