          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D16-3126
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DYLAN ROBINSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.

                           April 5, 2018


WINSOR, J.

    Dylan Robinson challenges his convictions for sexual assault.
After careful consideration of the arguments and the record, and
with the benefit of oral argument, we affirm.

     In the fall of 2014, a University of West Florida sophomore
invited Robinson up to her dorm room. The young woman had met
Robinson the day before, and Robinson asked if he could visit her
while he was on campus. Inside her dorm room, the two talked for
a while before eventually kissing. The young woman was okay with
kissing, but Robinson did not stop there. He soon became more
aggressive, closed the door, and turned off the lights. He picked up
the young woman, put her on her bed, and held her down. He
grabbed her neck, pulled down her pants, and forced himself on
her.

     When it was over, Robinson changed his shirt and left the
dorm. The young woman called her friends, who called the police.
She then went to the hospital, where a nurse examined her and
found internal tearing, blood, and a neck bruise in the shape of a
hand. Her underwear, soaked with blood, was collected for DNA
testing.

     The State charged Robinson with three counts of sexual
battery with force likely to cause serious personal injury, based on
three separate acts. Robinson testified at trial, admitting to sex
but claiming it was consensual. The young woman testified too,
and she said it was not consensual; she said Robinson had raped
her. The jury believed the young woman and convicted Robinson
on two of the three counts. Robinson was sentenced to concurrent
terms of twenty-five years’ imprisonment. He now appeals, raising
three issues.

     Robinson’s first argument on appeal is that the trial court
erred by excluding evidence of third-party DNA found in the young
woman’s underwear. Although Florida’s Rape Shield law generally
precludes this type of evidence to show consent, § 794.022(2), Fla.
Stat. (2014), Robinson maintains the evidence was relevant to
show someone else caused her injuries, see McGriff v. State, 601
So. 2d 1320, 1321 (Fla. 2d DCA 1992) (“Evidence of a victim’s prior
sexual encounters with others is admissible . . . to show that the
defendant was not the source of the victim’s injury.”). But this
argument was never made below, even after the State sought to
exclude evidence of the young woman’s sexual history through a
motion in limine—a motion the court granted without objection.
Therefore, this argument was not preserved for our review. See
Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982).

     Robinson next argues that the trial court erred by allowing a
nurse to offer certain expert testimony. The nurse had performed
the young woman’s sexual-assault examination after the incident,
and counsel asked her whether the young woman’s injuries were
“what you might see after forced sexual intercourse or sexual
battery.” The nurse answered affirmatively, Robinson objected
that the nurse had not been qualified as an expert, and after voir
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dire, the court allowed the testimony. Robinson maintains the
nurse was not qualified to answer. We review only for an abuse of
discretion, see Penalver v. State, 926 So. 2d 1118, 1134 (Fla. 2006),
and we find none. On voir dire, the nurse testified about her
training and education, that she was board certified as a sexual
assault nurse examiner, and that she performed more than thirty
similar exams throughout her training and practice. Given these
facts, the court acted within its discretion in allowing the
testimony. And at any rate, the nurse acknowledged on cross that
the injuries were also consistent with injuries she might expect to
see from consensual sex. Therefore, even if there were error in
admitting the testimony, we would find it harmless beyond
reasonable doubt.

     Finally, Robinson contends the trial court should have
granted his motion for judgment of acquittal, an issue we review
de novo. Huggins v. State, 135 So. 3d 306, 308 (Fla. 1st DCA 2012).
The State asked the jury to convict Robinson of sexual battery with
force likely to cause serious personal injury, but the verdict form
also included the lesser included offense of sexual battery. The jury
chose the greater offense, but Robinson argues the State presented
insufficient evidence that he used force likely to cause “serious
personal injury,” a term defined to include “great bodily harm or
pain.” § 794.011(1)(g), Fla. Stat. (2014). In other words, Robinson
contends the greatest offense for which he could be convicted was
sexual battery. Viewing the evidence in a light most favorable to
the State—as we must, Ibeagwa v. State, 141 So. 3d 246, 246–47
(Fla. 1st DCA 2014)—we conclude there was sufficient evidence to
support the jury’s verdict. The young woman testified that
Robinson held her down by her neck, bit her, made her bleed, and
caused her great pain. The young woman’s medical records,
entered into evidence, detailed a half-centimeter vaginal tear,
significant bruising and discoloration on her neck, and bleeding
following the attack. Other witnesses testified to seeing significant
amounts of blood on the young woman’s bed sheets, and Robinson
himself testified that he changed shirts afterward because the
shirt he wore during the encounter was covered in blood. This
evidence—and all the inferences drawn from it—were sufficient to
allow a reasonable jury to conclude that Robinson used force
sufficient to cause “great bodily harm or pain.”


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    AFFIRMED.

BILBREY and M.K. THOMAS, 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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Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon Traxler,
Assistant Attorney General, Tallahassee, for Appellee.




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