          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1877
                  _____________________________

KEVIN LEE ELLIOTT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.

                         February 27, 2019


PER CURIAM.

     Kevin Lee Elliott was convicted in 2014 for the sexual battery
of his sixteen-year-old stepdaughter. Following his conviction,
Elliott filed a motion for postconviction relief, raising seven claims
of ineffective assistance of counsel and one claim of cumulative
error. The postconviction court summarily denied Elliott’s claims
as facially insufficient or conclusively refuted by the record. We
affirm.

                                Facts

    Elliott began dating the victim’s mother when the victim was
two years old. Elliott and the victim’s mother eventually married
but divorced when the victim was fourteen or fifteen years old.
After the divorce, the victim lived with Elliott due to the mother’s
inability to keep a job or maintain a home. One night, the victim
attended a friend’s party and returned home intoxicated. Elliott
offered the sixteen-year-old victim an alcoholic beverage and the
two drank together until the victim was “pretty wasted.” The
victim told Elliott that she wanted to date an older boy. Elliott
advised the victim that before she would be permitted to date the
boy, she had to have sex with Elliott. Elliott took the victim to his
bedroom and had sex with her. The victim moved out of Elliott’s
home a few months later.

      The victim did not divulge the incident to anyone until she
was eighteen years old, when she confided in her boyfriend, Joshua
Gossett. Gossett and the victim then confronted Elliott over the
phone. Elliott initially denied any knowledge of the incident.
Gossett and the victim made several more phone calls to Elliott.
During one such phone call, the victim went into the bathroom and
slit her wrists. She was subsequently hospitalized pursuant to the
Baker Act.

     Elliott eventually confessed to his best friend, Christopher
Smith, that he had sexual intercourse with the victim after they
had both been drinking, but he claimed that the sex was
consensual. Around the same time, the victim disclosed the sexual
battery to counselors and psychiatrists and decided to contact the
police about the incident. Following an investigation, Elliott was
charged with the sexual battery of a person in familial or custodial
authority. In 2014, Elliott was tried by a jury and found guilty as
charged. He was sentenced to thirty years’ imprisonment.

     In 2018, Elliott filed an amended motion for postconviction
relief, which was summarily denied. This appeal follows.

                              Analysis

     We review the summary denial of a postconviction motion de
novo. Flagg v. State, 179 So. 3d 394, 396 (Fla. 1st DCA 2015).
Elliott alleges multiple claims of ineffective assistance of counsel.
In order to prevail on his claims, he was required to show that
counsel’s performance was outside of the wide range of reasonable
professional assistance, and that such conduct in fact prejudiced

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the outcome of the proceedings because without the conduct there
was a reasonable probability that the outcome would have been
different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92
(1984); Spencer v. State, 842 So. 2d 52 (Fla. 2003). “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Spencer, 842 So. 2d at 61.

                             Claim One

     Elliott argued that counsel was ineffective for failing to obtain
the victim’s and Gossett’s cell phone records. Elliott contended
that the records would show that the victim was working with
Elliott on the day she disclosed the incident to Gossett, and that
she and Gossett had been arguing via telephone and text message.
Elliott alleged that the phone records would have supported the
defense’s theory that the victim lied about the sexual battery to
gain sympathy from Gossett and that the victim slit her wrists
because her scheme backfired when Gossett became angry with
her.

     The trial court properly denied this claim. The record shows
that the victim’s trial testimony about her encounter with Elliott
was consistent with her report to police and with her disclosure to
Gossett. Moreover, Elliott confessed to Christopher Smith that he
had sex with the victim when she was sixteen years old. On this
record, Elliott cannot establish that he was prejudiced by counsel’s
failure to obtain the phone records or that there is a reasonable
probability that the outcome of his trial would have been different
if the phone records had been admitted into evidence. Miller v.
State, 161 So. 3d 354, 364 (Fla. 2015) (holding that “an appellate
court evaluating a claim of ineffectiveness is not required to issue
a specific ruling on one component of the test when it is evident
that the other component is not satisfied”).

                             Claim Two

     Next, Elliott argued that counsel was ineffective for failing to
call three witnesses. He argued that counsel should have called
the victim’s mother to show that the victim was in contact with
Elliott before the victim told Gossett about the alleged abuse.
Elliott next argued that counsel should have called Kristen

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Nicholson to corroborate Elliott’s testimony that the victim and
Gossett were arguing when the victim told Gossett about the
alleged sexual battery. Elliott also argued that counsel should
have called Gossett’s aunt because she could have testified that the
victim worked with Elliott and that the victim was arguing with
Gossett before she disclosed the encounter with Elliott.

     The trial court properly denied this claim for relief. The record
demonstrates that counsel investigated whether the victim’s
mother and Nicholson would present helpful testimony for the
defense. The record is silent about whether he considered calling
Gossett’s aunt as a witness. Regardless, any testimony regarding
an argument between Gossett and the victim the day she disclosed
the sexual battery is a collateral matter that does not reflect on the
veracity of the victim’s allegations.         And Elliott failed to
demonstrate how presenting testimony of the three witnesses
would have changed the outcome of his trial considering the
victim’s consistent testimony regarding the sexual battery and his
own confession to a friend. Thus, this claim was properly denied.
Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004) (holding that to
prevail on a claim that counsel was ineffective for failing to call a
witness, the appellant must show prejudice from the omission of
the witness’s testimony).

                            Claim Three

     Elliott alleged that counsel was ineffective for failing to call
Sandra Smith, Christopher Smith’s wife, as a witness. He argued
that Sandra would have testified that Smith had a motive to
falsely testify because Smith believed that Elliott was having an
affair with her. During the cross-examination of Smith, defense
counsel attempted to elicit testimony from Smith that after Smith
spoke to the police about Elliott’s confession, Smith learned there
was a possibility that Elliott had an affair with Sandra. The
prosecutor argued that this was improper character evidence, and
defense counsel argued that it went to Smith’s bias as a witness.
But because Smith did not confront Elliott about the alleged affair
until after Smith spoke with the police about Elliott’s confession,
the trial court ruled that this line of questioning was not relevant.
Defense counsel cannot be deemed ineffective for failing to attempt
to present evidence that had already been excluded by the trial

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court – even if it was through a different witness. Lukehart v.
State, 70 So. 3d 503, 513 (Fla. 2011) (“Counsel cannot be deemed
ineffective for failing to pursue a meritless claim.”). Thus, this
claim was properly denied.

                             Claim Four

     Next, Elliott alleged that counsel was ineffective for failing to
impeach the victim’s testimony with inconsistent statements she
made in a police report. However, Elliott failed to identify the
allegedly inconsistent portions of the victim’s statements. The
conclusory nature of the claim renders it facially insufficient.
Mohr v. State, 17 So. 3d 1249, 1249 (Fla. 2d DCA 2009). The trial
court gave Elliott an opportunity to correct this pleading
deficiency, but Elliott failed to do so. Thus, this claim was properly
denied. See Nelson v. State, 977 So. 2d 710, 711 (Fla. 1st DCA
2008) (“Although a trial court in its discretion may grant more
than one opportunity to amend an insufficient claim, Spera [v.
State, 971 So. 2d 754 (Fla. 2007),] does not mandate repeated
opportunities.”).

                             Claim Five

     Elliott alleged that counsel was ineffective for failing to object
to several instances of prosecutorial misconduct. He alleged that
counsel should have objected when the prosecutor informed the
jury that Elliott’s girlfriend, Kristen Nicholson, was incarcerated
during the summer of 2010. During opening statements, the
prosecutor stated that Nicholson had been incarcerated and that a
jail custodian would verify the dates of her incarceration. This
information was necessary to establish the age of the victim at the
time of the sexual battery. The victim testified that she knew that
she was sixteen years old when the incident occurred because
Nicholson was not living in the house with Elliott but was in prison
at the time. Thus, Nicholson’s incarceration was relevant evidence
and defense counsel had no grounds to object to the presentation
of the evidence. Lukehart, 70 So. 3d at 513.

    Elliott further argued that counsel should have objected
during opening statements when the prosecutor stated that


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Joshua Gossett would testify “honestly” as this was improper
bolstering. During opening, the prosecutor stated:

    She then goes to tell her boyfriend. He of course will tell
    you he did not take it well at all. Matter of fact, he’s going
    to tell you himself he was angered. He was upset. He
    was confused because he’s going to tell you honestly he
    had met the defendant a couple of times.

Contrary to Elliott’s argument, this was not an improper
statement because the prosecutor never implied that she had a
reason to believe Gossett that was not presented to the jury. See
Jackson v. State, 89 So. 3d 1011, 1018 (Fla. 4th DCA 2012) (holding
that explaining why the jury should believe a witness is not an
improper personal opinion about the credibility of the witness as
long as the prosecutor does not suggest that she has reasons to
believe the witness that were not presented to the jury). Thus,
defense counsel had no grounds to object to this statement.

     Next, Elliott argued that defense counsel should have objected
during closing arguments when the prosecutor stated that the
victim’s suicide attempt was a consequence of her disclosure of the
sexual battery. During direct examination, the victim testified
that she slit her wrists after disclosing the incident to Gossett
because she “was ashamed of what happened.” During the initial
closing, the prosecutor argued: “Well, ladies and gentlemen, this is
something that [the victim] had festering in her for two years. It
led her to a point where when she finally told her boyfriend, her
release was to go and slit her wrist and be [B]aker acted.” During
rebuttal closing, the prosecutor argued: “[The victim’s] upset
because now her boyfriend knows. Now the defendant knows that
she’s told, spiraling to the point where she cuts herself. Again,
that reality, that leap she took is all settling in.”

     Neither of the prosecutor’s comments identified by Elliott
were improper. “[T]he purpose of closing argument is to present a
review of the evidence and suggestions for drawing reasonable
inferences from the evidence.” Toler v. State, 95 So. 3d 913, 917
(Fla. 1st DCA 2012) (quoting Fleurimond v. State, 10 So. 3d 1140,
1148 (Fla. 3d DCA 2009)). Both statements were a fair comment
on the evidence that was presented through the testimony of the

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victim. Because none of these objections would have been
meritorious, defense counsel cannot be deemed ineffective for
failing to make them. Lugo v. State, 2 So. 3d 1, 21 (Fla. 2008).
Thus, the trial court properly denied this claim.

                             Claim Six

     Next, Elliott argued that defense counsel should have asked
for jury instructions on lesser-included offenses. He argued that
this failure deprived the jury of its right to exercise its pardon
power. “However, ‘as a matter of law, the possibility of a jury
pardon cannot form the basis for a finding of prejudice under
Strickland.’” Johnson v. State, 247 So. 3d 689, 697 (Fla. 1st DCA
2018) (quoting Sanders v. State, 946 So. 2d 953, 960 (Fla. 2006)).
Thus, the trial court properly denied this claim.

                           Claim Seven

     Elliott alleged that counsel misadvised him regarding his
right to testify in his own defense. He stated that counsel admitted
it was Elliott’s right to testify but strongly advised against it.
Elliott alleges that based on this alleged misadvice, he did not
exercise his right to testify. The record conclusively refutes this
claim.

     At the close of the State’s case, the trial court conducted a
colloquy with Elliott. Elliott testified that he intended to exercise
his right to remain silent. The court went on to explain:

    THE COURT: And I assume you’ve had discussions with
    Mr. Beard. I don’t need to know what they were, but that
    you have talked back and forth about whether to or not
    to testify, maybe you’ve had advice from family and
    friends, you never know.

    Sometimes I see people who want to testify and the
    lawyer thinks they shouldn’t. I’ve seen people where the
    lawyer wants them to testify, and the defendant says, “I
    don’t think I can do it.” Override reasons why somebody
    might or not might testify.        You understand and
    acknowledge that?

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    THE DEFENDANT: Yes, Your Honor.

    THE COURT: And what I need to know is though that
    after all the conversations and considerations, advice,
    whatever it might be, you are making your own personal
    decision because it ultimately is your decision whether to
    decide to become a witness or not, so this decision is yours
    and yours alone. You understand that?

    THE DEFENDANT: Yes, Your Honor.

    THE COURT: Okay. And so you are making this
    decision freely and voluntarily to say, “I am going to stand
    by my Constitutional Right to remain silent,” correct?

    THE DEFENDANT: Yes, Your Honor.

    THE COURT: Okay. All right. That sounds good.

Elliott is not entitled to go behind his statements in the colloquy.
Kelley v. State, 109 So. 3d 811, 812-13 (Fla. 1st DCA 2013) (holding
that a postconviction motion cannot be used to go behind the
defendant’s sworn representations to the court). Thus, the trial
court properly denied this claim.

                            Claim Eight

     Finally, Elliott argued that the cumulative effect of the alleged
errors deprived him of a fair trial. Because Elliott failed to
establish that any of his claims for postconviction relief had merit,
he also failed to demonstrate that any cumulative error occurred.
Schoenwetter v. State, 46 So. 3d 535, 562 (Fla. 2010) (holding that
it is proper to deny a claim of cumulative error when each
individual claim of error is meritless). Thus, the trial court
properly denied this claim.

    Because all of Elliott’s claims were facially insufficient or
conclusively refuted by the record, we affirm the trial court’s
summary denial of his motion for postconviction relief.

    AFFIRMED.


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ROWE, BILBREY, and KELSEY, JJ., concur.
                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Kevin Lee Elliott, pro se, Appellant.

Ashley B. Moody, Attorney General, and Virginia C. Harris,
Assistant Attorney General, Tallahassee, for Appellee.




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