       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 03, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2882
                          Lower Tribunal No. 14-8780
                             ________________


                                   Jeff Scott,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Rodolfo A.
Ruiz, Judge.

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

     Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for appellee.


Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

      ROTHENBERG, J.
      Jeff Scott, the defendant, appeals from a final judgment of conviction and

sentence for three counts of sexual activity with a child by a person in familial or

custodial authority, a first-degree felony. § 794.011(8)(b), Fla. Stat. (2014). The

defendant argues on appeal that three alleged errors warrant reversal. Specifically,

the defendant contends that: (1) the prejudice caused by the victim’s testimony

that she tried to commit suicide after the abuse outweighed its probative value; (2)

an expert witness’s recommendation that the victim should receive sexual abuse

therapy improperly bolstered the victim’s credibility; and (3) the prosecution

improperly appealed to the jury’s sympathy for the victim during closing

arguments. For the following reasons, we affirm.

I. Standard of Review

      If the defendant had properly objected to these claimed errors at trial, we

would be reviewing the admission of the victim’s testimony, the expert’s

testimony, and the State’s closing arguments for an abuse of discretion. See

Cardona v. State, 185 So. 3d 514, 520 (Fla. 2016); O’Connell v. State, 480 So. 2d

1284, 1286 (Fla. 1985). The defendant, however, concedes that these alleged errors

were not properly preserved for appellate review. The defendant must, therefore,

establish fundamental error to obtain a reversal.

      “Fundamental error is defined as the type of error which reaches down into

the validity of the trial itself to the extent that a verdict of guilty could not have



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been obtained without the assistance of the alleged error.” McDonald v. State, 743

So. 2d 501, 505 (Fla. 1999) (internal quotation omitted); see also J.B. v. State, 705

So. 2d 1376, 1378 (Fla. 1998) (“An error is fundamental when it goes to the

foundation of the case or the merits of the cause of action and is equivalent to a

denial of due process.”); Hopkins v. State, 632 So. 2d 1372, 1374 (Fla. 1994)

(stating that “the fundamental error doctrine should be used very guardedly”)

(internal quotation marks omitted); Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)

(“The doctrine of fundamental error should be applied only in rare cases where a

jurisdictional error appears or where the interests of justice present a compelling

demand for its application.”). No fundamental error has been demonstrated here.

II. The first alleged error: evidence of C.S.’s suicide attempt

      During the State’s case-in-chief, C.S. briefly testified that, as a result of the

defendant’s abuse, she tried to commit suicide. The defendant argues on appeal

that the introduction of this testimony was improper because its probative value

was outweighed by the risk of unfair prejudice. Section 90.402, Florida Statutes

(2014), provides that “[a]ll relevant evidence is admissible, except as provided by

law.” Section 90.403, Florida Statutes (2014), however, states that “[r]elevant

evidence is inadmissible if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of issues, misleading the jury, or needless

presentation of cumulative evidence.”



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      Whether C.S. was sexually abused was the sole, and thus, a material issue in

this case. The case law has consistently held that the behavioral changes of a

victim following the alleged sexual abuse is probative of whether the sexual abuse

occurred. See Petruschke v. State, 125 So. 3d 274, 281 (Fla. 4th DCA 2013)

(finding that testimony from the victim’s parents that the victim “wet his bed more

often, woke up crying with terror, and began counseling” after the alleged abuse

was relevant and admissible to prove that the abuse actually occurred”); Elysee v.

State, 920 So. 2d 1205, 1208 (Fla. 4th DCA 2006) (holding that the mother’s

testimony regarding the victim’s “morose behavior” in the days following the

alleged sexual abuse was relevant and admissible). As the Fourth District Court of

Appeal noted in Elysee, “[i]f the victim had engaged in conduct inconsistent with

the charges, for example, attending a party and enjoying herself, immediately after

she left the scene, we have no doubt that the appellant would consider that

evidence to be relevant.” Elysee, 920 So. 2d at 1208.

      Based on the facts in the instant case, we find that the admission of this

relevant evidence, which did not become a feature of the trial, did not constitute an

abuse of discretion under the balancing test of section 90.403, and certainly did not

rise to the level of fundamental error. Under a fundamental error analysis, the

defendant has the very high burden of showing that the alleged error reaches down

into the foundation of the case, J.B., 705 So. 2d at 1378, such “that a verdict of



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guilty could not have been obtained without the assistance of the alleged error.”

McDonald, 743 So. 2d at 505 (quoting Urbin v. State, 714 So. 2d 411, 418 n.8

(Fla. 1998)).1 The defendant has failed to satisfy that burden in this case.

III. The second alleged error: Treto’s therapy recommendation

      Annette Treto (“Treto”), a counselor employed by the Child Protection

Team, whose job description includes interviewing individuals who might have

suffered sexual abuse, testified that after she interviewed C.S., she recommended

that C.S. “go to the Kristi House for therapeutic services for help – help with her

victimization and for DCF to look into the safety of the other children in the home,

their concern for the mother’s ability to protect the other children.” Although the

defendant concedes that Treto did not directly testify as to C.S.’s credibility or that

she believed C.S. was telling the truth, the defendant nevertheless contends that

Treto’s testimony left the jury with the unmistakable impression that she believed

that C.S. was telling the truth. Ramayo v. State, 132 So. 3d 1224, 1226 (Fla. 3d

DCA 2014) (stating that it is improper for an expert to vouch for the truthfulness or

1 We acknowledge that under different circumstances not present in this case, the
trial court’s admission of testimony regarding a victim’s suicide attempt has been
held to be an abuse of discretion. Johnson v. State, 40 So. 3d 883, 886 (Fla. 4th
DCA 2010) (finding that the objected-to testimony about the victim’s suicide
attempt “cuts both ways,” and therefore, the statement’s probative value was
“minimal at best”); Aho v. State, 393 So. 2d 30, 31 (Fla. 2d DCA 1981) (finding
that the objected-to testimony of an investigating officer concerning hearsay
statements made by the victim about her suicide attempt were improper and were
not very probative because they were relayed to the officer ten days after the
incident).

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credibility of the victim); Geissler v. State, 90 So. 3d 941, 947 (Fla. 2d DCA 2012)

(“Even if the expert does not comment directly on the child victim’s credibility,

expert testimony is improper if the juxtaposition of the questions propounded to

the expert gives the jury the clear impression that the expert believed that the

child victim was telling the truth.”) (emphasis added).

      The State contends, and we agree, that this statement did not leave the jury

with the clear impression that Treto believed that C.S. was telling the truth. The

facts in this case substantially differ from the facts in Ramayo and Geissler, where

the expert witnesses expressly stated that they believed that the victim had been

abused based on nothing more than the victim’s own statements. Ramayo, 132 So.

3d at 1226 (finding error where the expert witness expressly stated that he believed

that the victim had been abused and where he based his expert opinion on the

victim’s statements); Geissler, 90 So. 3d at 947 (finding that the expert witness

improperly testified that she believed that the victim was abused based on the

history of sexual abuse reported by the child). In contrast, Treto did not testify that

she believed C.S. had been sexually abused, and defense counsel clarified in the

cross-examination of Treto that Treto had not spoken to anyone other than C.S.,

she did not attempt to verify any of the information provided by C.S., and the

verification of C.S.’s allegations was not her job, but the job of DCF and law

enforcement. Accordingly, the defendant has not demonstrated error, let alone



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fundamental error, in the admission of Treto’s recommendation that C.S. receive

therapy.

IV. The third alleged error: appealing to the jury’s sympathy for C.S.

      At the start of its rebuttal closing argument, the prosecutor made the

following comment: “Members of the jury, today is the day that you all get to do

justice. Each and every one of you gets to do justice today for C.S.” Additionally,

at the end of the State’s rebuttal argument, the prosecutor made the following

argument:

      And today you get to do justice for her. You get to be her voice. You
      get to be the voice that she couldn’t have, that she couldn’t tell her
      mom, that she couldn’t tell a teacher. You get to be her voice. You get
      to say you don’t do whatever you want. You don’t take whatever you
      don’t -- whatever you want. You don’t take the innocence of this child
      because you want to. You are her voice today, and you get to say you
      are guilty of all three counts because you violated this child repeatedly
      and she is still suffering. You get to be her voice.

      These arguments have been uniformly condemned. See Cardona, 185 So. 3d

at 522 (“The argument that the case is about ‘justice’ for the victim or the victim’s

family has been uniformly condemned.”). There is thus no excuse for the

continued use of such arguments by lawyers in this state. Although we do not find

that these unobjected-to arguments constitute fundamental error, we caution

prosecutors that these arguments must cease and remind opposing counsel and trial

courts to be more vigilant in objecting to and precluding such arguments in the

future. See Capron v. State, 948 So. 2d 954, 956-57 (Fla. 5th DCA 2007) (finding


                                         7
that fundamental error in closing argument only “occurs when the prejudicial

conduct, in its collective import, is so extensive that its influence pervades the trial,

gravely impairing a calm and dispassionate consideration of the evidence and the

merits by the jury”); see also Chandler v. State, 702 So. 2d 186, 191 n.5 (Fla.

1997) (“The prosecutor’s comment[s] . . . about Chandler and his counsel were

thoughtless and petty, e.g., counsel engaged in ‘cowardly’ and ‘despicable’

conduct and Chandler was ‘malevolent . . . a brutal rapist and conscienceless

murderer,’ but not so prejudicial as to vitiate the entire trial.”) (second omission in

original).

V. Ineffective assistance of trial counsel

      The defendant argues, in the alternative, that his trial counsel’s failure to

properly object to the above alleged errors constitutes ineffective assistance of

counsel. The general rule is that a claim for ineffective assistance of counsel is not

cognizable on direct appeal unless “the ineffectiveness is apparent on the face of

the record and it would be a waste of judicial resources to require the trial court to

address the issue.” Cephus v. State, 52 So. 3d 46, 48 (Fla. 3d DCA 2010) (quoting

Smith v. State, 998 So. 2d 516, 522 (Fla. 2008)); Corzo v. State, 806 So. 2d 642,

645 (Fla. 2d DCA 2002) (“On rare occasions, the appellate courts make an

exception to this [general] rule when the ineffectiveness is obvious on the face of




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the appellate record, the prejudice caused by the conduct is indisputable, and a

tactical explanation for the conduct is inconceivable.”).

      As we have already discussed, the testimony regarding C.S.’s suicide

attempt and Treto’s therapy recommendation were not erroneously admitted at

trial. Therefore, there can be no ineffective assistance of counsel by failing to

object to the first two issues raised on appeal. As to the third issue, although it was

improper for the prosecutor to appeal to the jury’s sympathy for the victim, the

claim of ineffective assistance of counsel is not cognizable on direct appeal

because we cannot say, based on the face of the record, that defense counsel did

not have a tactical reason for failing to object to these statements and that, but for

the improper argument, there is a reasonable probability that the outcome would

have been different. See Eure v. State, 764 So. 2d 798, 801 (Fla. 2d DCA 2000);

see also Moore v. State, 820 So. 2d 199, 208 (Fla. 2002) (concluding that the

prosecutor’s two comments characterizing the defendant as “the devil” were

improper, but too isolated to show ineffective assistance of counsel).

VI. Conclusion

      In summary, we find that the defendant has failed to demonstrate that the

introduction of C.S.’s testimony regarding her suicide attempt, Treto’s testimony

regarding her therapy recommendation for C.S., and the State’s improper

comments during closing arguments constitute fundamental error, either



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cumulatively or individually. We also find that the defendant’s claim of ineffective

assistance of counsel is not cognizable on direct appeal. Additionally, after full and

fair consideration, we find that the defendant’s remaining arguments are meritless,

and we therefore decline to specifically address them here.

      Affirmed.




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