       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 10, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-627
                          Lower Tribunal No. 11-6004
                             ________________


                                 King Knight,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Maria Elena
Verde, Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.

Before SUAREZ, C.J., and LAGOA and LUCK, JJ.

     LUCK, J.
      Defendant King Knight raises one issue in this appeal from his conviction

and sentence for sexual battery: the trial court erred by allowing the victim of

Knight’s rape and beating to testify that she saw a therapist, and couldn’t go out at

night, in the days and weeks after the attack. Knight contends that the probative

value of this evidence was substantially outweighed by its unfair prejudice, and

therefore was inadmissible under section 90.403 of the Florida Statutes.1 Because

Knight did not object at trial to this part of the victim’s testimony on “prejudice”

grounds,2 the issue was not preserved for appeal. See Datus v. State, 126 So. 3d

1 “Relevant evidence is inadmissible if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .” § 90.403, Fla. Stat.
2    This is the relevant part of the victim’s testimony:
     [Prosecutor] How did you feel when you got home?
     [Ms. Brown] I was still in shock. I was still upset, scared to go out. I
     don’t go out at night. I cannot go out at night.
     [Prosecutor] Did they ever recommend any kind of services to you
     when you are at Jackson Memorial hospital?
     [Ms. Brown] I did – they –
     [Defense counsel] Objection, relevance.
     [The court] Overruled.
     [Prosecutor] You can answer.
     [Ms. Brown] They did.
     [Prosecutor] What did they offer you?
     [Defense counsel] Objection, hearsay.
     [The court] Sustained.
     [Prosecutor] Did you go to any therapy after this?
     [Ms. Brown] Yes, I did.
     [Prosecutor] Was that here [in] Miami?
     [Ms. Brown] Yes, it was.
     [Prosecutor] Do you still have effects from this incident in your life?
     [Defense counsel] Objection, relevance.
     [The court] Sidebar.
     ….

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363, 365 (Fla. 4th DCA 2013) (“[A]n objection on relevance grounds only will not

preserve an argument of unfair prejudice on appeal.”); Andrews v. State, 82 So. 3d

979, 982 n.2 (Fla. 1st DCA 2011) (“Appellant failed to object at trial on undue

prejudice grounds pursuant to section 90.403, Florida Statutes (2008). As a result,

he waived any possible undue prejudice argument on appeal.”); Reynolds v. State,

660 So. 2d 778, 780 (Fla. 4th DCA 1995) (“By defense counsel’s simply objecting

to testimony on the grounds that it is ‘cumulative,’ without more, the trial court is

not alerted to the fact that the objection is based upon a contention that the

probative value of the otherwise admissible evidence is outweighed by the danger

of unfair prejudice.”) Because admitting the victim’s testimony that after the rape

she went to a therapist and couldn’t go out at night was not fundamental error, we

affirm. See Johnson v. State, 40 So. 3d 883, 887 (Fla. 4th DCA 2010) (reviewing


      [The court] What’s the relevance?
      [Prosecutor] The relevance is they’re saying this is a consensual act, if
      it is a consensual act, why is she bothering to go to therapy? Why is
      she still changing her life as a result of what happened to her?
      [The court] Either you – I’m not sure how – after is relevant what
      happened during.
      [Prosecutor] It’s relevant to the truth of what she’s saying
      ….

      [The court] The objection is overruled; you may proceed.
      [Prosecutor] Ms. Brown, can you tell the members of the jury what’s
      changed in your life as a result of this?
      [Ms. Brown] I can’t go out at night. Wherever I go, I go with a crowd
      of people. And I’m basically home with the children, my
      grandchildren, my husband. I don’t go anywhere.

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under harmless error analysis the erroneous admission of post-assault victim

behavior).

      Affirmed.




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