       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            VAL VILADOINE,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-218

                              [April 3, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 11-
003486CF10A.

  Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   Val Viladoine was charged with two counts of sexual battery upon a
child less than twelve years of age whom his wife was babysitting after
school. The basis of Count I was “causing his penis to penetrate or unite
with” the victim’s vagina, and the basis of Count II was “causing his finger
to penetrate the vagina” of the five-year-old victim. Forensic medical
testimony provided physical evidence that an assault had occurred.

   Viladoine’s primary defense at trial was alibi. He said he was in Miami
the day of the incident and that he arrived home at around 5:00 p.m. He
denied seeing the victim. Including Viladoine, five witnesses testified in
support of the alibi.

   The jury convicted Viladoine of Count I and acquitted him of Count II.

   We reverse the conviction because the trial court erred in allowing the
state to amend Count I of the information during trial to add the charge
that the crime was committed with an object.
   By the time of trial, the victim was ten years old. As to Count I, the
victim testified that appellant “put his gun in my vagina.” When asked
how she knew it was a gun inside her vagina, she replied, “Because I could
hear the noise.” The prosecutor asked, “Why do you call it a gun?” and
she testified, “Because it’s a toy gun and it’s shaped like one, that’s why.”
She described the gun: “The color is pinkish something and it’s a toy and
the color is pink or something. It’s a toy and the color is pink.”

   On cross-examination, the victim testified that she knew the difference
between a gun and a penis.

   After the state rested, Viladoine moved for judgment of acquittal,
focusing on Count I, arguing that there was no testimony that the
defendant’s penis penetrated or united with the victim’s vagina. The state
argued that it was for the jury to determine whether what the child
described as a gun was actually a penis because the child did not know
the word for penis at age five.

   The trial judge correctly observed that “there’s no evidence that [the
victim] ever referred to the male organ as a gun.” After a break, the trial
court granted the state’s motion to amend Count I of the information to
add penetration by an object. The court found no prejudice to the
defendant because his defense was alibi.

   This case is controlled by Diaz v. State, 38 So. 3d 791 (Fla. 4th DCA
2010), and Simbert v. State, 226 So. 3d 883 (Fla. 4th DCA 2017), sexual
assault cases where convictions were reversed because the mode of
unlawful contact with the victim, as alleged in the information, was
changed mid-trial.

    In Diaz, a defendant was charged with sexual battery “by inserting his
fingers into the victim’s vagina.” 38 So. 3d at 792. After the state rested
at trial, the defendant moved for a judgment of acquittal because the state
had not proven digital penetration. Id. The trial court permitted the state
to amend the information to “include oral union with the victim’s vagina.”
Id. We reversed the conviction, writing that “‘[p]roof of another separate
and distinctly different crime rather than the one charged constitutes a
fatal variance in proof which in a criminal case cannot be ‘cured’ by
amending the charging document to conform to the proof of the crime not
charged.’” Id. at 793 (quoting Rose v. State, 507 So. 2d 630, 632 (Fla. 5th
DCA 1987)).

  Like Diaz, Simbert involved the charge of lewd or lascivious battery
where a mid-trial amendment changed the mode of unlawful contact from

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“oral to digital penetration.” 226 So. 3d at 884. We held that the
amendment changed an “‘essential element’ of the charged crime.” Id. We
wrote that an “‘amendment that substantively alters the elements of the
crime charged is per se prejudicial.’” Id. at 885 (quoting Wright v. State,
41 So. 3d 924, 926 (Fla. 1st DCA 2010)).

   Per se prejudice aside, the amendment here altered the way the defense
might have prepared the case. Although the child suffered severe injury
from the penetration, she did not immediately report the incident when
her mother picked her up. The mother took the victim home and began to
prepare dinner. About an hour and a half after her mother picked her up
from the sitter’s, the victim reported bleeding to her mother. Even though
the defense was alibi, if the charge was object penetration with a pink toy
gun, careful preparation would have focused on whether a pink toy gun
was ever present at the sitter’s home.

   As to the other issues on appeal, we also reverse based on the
admission of the five-year-old victim’s statement to a detective on the day
of the incident. After an evidentiary hearing, the trial court found the
statement to be admissible under sections 90.803(23)(a)1. and 2.a.,
Florida Statutes (2015). Appellate counsel discovered that the notes of
that hearing had been lost by the court reporter. This court relinquished
jurisdiction for the parties and the trial court to reconstruct the record.
The trial court entered several orders attempting to reconstruct what had
occurred at the hearing. We have listened to the audio recording of the
child’s statement and closely examined the transcript of the statement.
This is one of those situations where we are in as good a position as was
the trial court to evaluate the victim’s recorded statement. See Dooley v.
State, 743 So. 2d 65, 68 (Fla. 4th DCA 1999) (“Insofar as a ruling is based
on an audio or videotape, the trial court is in no better position to evaluate
such evidence than the appellate court, which may review the tape for facts
legally sufficient to support the trial court’s ruling.”). The statement raises
serious concerns about the victim’s competence at the time the statement
was given. Nothing in the “reconstructed evidence” of the hearing
overcomes these concerns.

   Finally, we find no abuse of discretion in the court’s limitation of the
defense attorney’s closing argument. While the attorney might well have
argued that a reasonable doubt arose from the inability to pinpoint the
victim’s whereabouts after she returned home with her mother, the trial
court properly sustained an objection to the argument that she wandered
down the hall, unsupervised, in the apartment complex, in the absence of
any evidence to support that speculation.


                                     -3-
   Consistent with Simbert, 226 So. 3d at 888, we reverse the conviction
on Count I and remand to the trial court for the entry of a judgment of
acquittal on that count. 1

WARNER, J., and WEISS, DALIAH, Associate Judge, concur.

                             *         *          *

   Not final until disposition of timely filed motion for rehearing.




1 Even though at oral argument appellant’s counsel touched upon the issue of

whether the state would be able on remand to file a new information charging
sexual battery by an object, we do not decide the issue because it was not raised
or briefed by the parties.


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