           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT
                                   July Term 2014

                              MICHAEL MANSUETO,
                                   Appellant,

                                          v.

                               STATE OF FLORIDA,
                                    Appellee.

                                   No. 4D12-522

                                 [October 8, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No. 08-012803
CF10A.

  Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

    Michael Mansueto appeals his convictions for four counts of sexual
battery on a child while in a position of familial or custodial authority
committed against his biological daughter. He argues that the trial court
erred by permitting a witness to vouch for the credibility of a Williams1
rule witness and by allowing the testimony of the Williams rule witness to
become a feature of the trial. Because Mansueto failed to properly object
to the errors now alleged on appeal, we affirm.

   Before trial commenced, the state filed a notice of intent to call the
victim’s sister (Mansueto’s other daughter) as a Williams rule witness.
Following an evidentiary hearing on the state’s notice of intent, the trial
court properly found that the evidence was reliable and showed a
common scheme and plan. Mansueto then sought to exclude references
to the Williams rule evidence in both opening statements and closing

1   Williams v. State, 117 So. 2d 473 (Fla. 1960).
arguments. The trial court denied his request, but explained that it
would consider any properly made objection regarding the use of the
Williams evidence as a feature at trial.

    The victim testified at trial regarding the sexual battery she suffered
as a minor at the hands of Mansueto, describing a quid pro quo system
in which Mansueto would give her money, privileges, or permission for
certain activities in exchange for submitting to sexual acts. The victim
also described a birthmark on Mansueto’s penis, which was corroborated
with a photograph entered into evidence by the state. The victim’s sister
(“sister”) testified to also being a victim of Mansueto under a similar
pattern of abuse and confirmed that the state’s photograph correctly
depicted Mansueto. Mansueto made no objection to the Williams rule
testimony becoming a feature.2

   The defense vigorously cross-examined the sister about prior
representations the sister allegedly made to a detective in which she
indicated that she had not been molested by Mansueto. Additionally, the
defense introduced into evidence a sketch of Mansueto’s birthmark
drawn by the sister, apparently to show variations between the drawing
and the previously admitted photograph.

   After the state rested, the defense called both the mother of the victim
(“mother”) and the sister. The mother testified to a prior false allegation
of abuse made by the victim against “Norman,” the victim’s stepfather
(and mother’s second husband).

   On cross-examination by the state, the mother testified that the
victim and the sister together told their mother that Mansueto had
molested them, which the mother believed to be true. When the state
asked the mother about her belief in the accusations against Mansueto
versus her conclusion that the accusations against Norman were false,
the mother clarified that she believed the allegations against Mansueto
because the sister (apparently unlike the victim) never lied to her. The

2 Williams rule evidence becomes a proscribed “feature” of trial “when inquiry
into the collateral crimes ‘transcend[s] the bounds of relevancy to the charge
being tried’ and the prosecution ‘devolves from development of facts pertinent to
the main issue of guilt or innocence into an assault on the character of the
defendant.’” Conde v. State, 860 So. 2d 930, 945 (Fla. 2003) (quoting Williams,
117 So. 2d at 475). Simply put, Williams rule evidence is a feature if it
‘“overwhelms’ evidence of the charged crime and becomes ‘an impermissible
attack on the defendant's character or propensity to commit crimes.’” Grier v.
State, 27 So. 3d 97, 101 (Fla. 4th DCA 2009) (quoting Samuels v. State, 11 So.
3d 413, 418 (Fla. 4th DCA 2009)).

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defense objected to the question and asserted, “It’s the ultimate issue for
the jury.” The trial court overruled the objection. The jury found
Mansueto guilty.

    On appeal, Mansueto argues that the trial court erred in admitting
the mother’s testimony concerning the veracity of the sister and further
asserts that the trial court committed error by permitting Williams rule
evidence to become a feature at trial. The state argues that the errors
raised by Mansueto were not preserved for review because Mansueto
failed to lodge proper objections. We agree.

   Generally, proper preservation of an issue for appellate review
requires three components: (1) a timely, contemporaneous objection, (2)
a stated legal ground for the objection, and (3) to be cognizable on
appeal, the argument “must be the specific contention asserted as legal
ground for the objection, exception, or motion below.” State v. Calvert, 15
So. 3d 946, 948 (Fla. 4th DCA 2009) (citations omitted) (emphasis in
original). Issues not properly raised in the lower tribunal are typically
waived on appeal save for unpreserved issues that constitute
fundamental error. See Steinhorst v. State, 412 So. 2d 332, 338 (Fla.
1982).

    Stated another way, “to be preserved for further review by a higher
court, an issue must be presented to the lower court and the specific
legal argument or ground to be argued on appeal or review must be part
of that presentation if it is to be considered preserved.” Tillman v. State,
471 So. 2d 32, 35 (Fla. 1985) (citations omitted). Below, Mansueto
objected and asserted, “It’s the ultimate issue for the jury.” Because the
“ultimate issue” ground alleged as the legal basis of the objection during
trial is distinct from the error now alleged on appeal (improper vouching
for a witness’s credibility), Mansueto’s issue on appeal was not preserved
for our review.

   As to Mansueto’s issue on appeal alleging that the trial court erred in
permitting the Williams rule evidence to become a feature at trial,
Mansueto likewise failed to lodge an objection at the time the evidence
was being presented below.       The contemporaneous objection rule
requires a party to object during trial at the time of the alleged error.
Overton v. State, 976 So. 2d 536, 574 (Fla. 2007). The rationale for the
contemporaneous objection rule “is two-fold: 1) to require an objection at
the time the error is committed to give the trial court the opportunity to
correct it; and 2) to prevent a litigant from allowing an error to go
unchallenged so it may be used as a tactical advantage later.” Crumbley
v. State, 876 So. 2d 599, 601 (Fla. 5th DCA 2004) (citing F.B. v. State,

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852 So. 2d 226 (Fla. 2003)).3

   It cannot be said that the errors alleged by Mansueto on appeal were
fundamental in nature and thus we affirm.

    Affirmed.

STEVENSON and FORST, JJ., concur.

                              *         *          *

    Not final until disposition of timely filed motion for rehearing.




3 In some instances, assertion of a contemporaneous objection may raise
concerns of a speaking objection particularly when a trial judge has issued an
adamant pre-trial order in limine. The issue of speaking objections and the
need to seek a bench conference has previously been addressed by this court:

    Judges frown on speaking objections and often both lawyers and trial
    judges do not want the jury to hear the argument on the objection
    because of a legitimate concern that a discussion in front of the jury may
    only highlight the error. Yet, a properly articulated specific objection is
    necessary not only for appellate preservation but to assist the trial court
    in making a proper ruling as well. Therefore, to address the tension
    between the need for a specific objection and the desire to shield the jury
    from the argument, often either the trial judge or the lawyer will ask that
    the objection be heard at sidebar.

Datus v. State, 126 So. 3d 363, 366 (Fla. 4th DCA 2013) (quoting Salazar v.
State, 991 So. 2d 364, 380–81 (Fla. 2008) (Pariente, J., specially concurring)
(footnote omitted)).

   Needless to say however, there is no viable substitute for well-versed trial
advocacy and no shortcut for acquiring a firm grasp on the articulation of
proper and contemporaneous trial objections.

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