            Supreme Court of Florida
                                    ____________

                                     No. SC14-62
                                    ____________

                                  JOHN SEXTON,
                                    Appellant,

                                          vs.

                               STATE OF FLORIDA,
                                    Appellee.

                                    [June 29, 2017]

PER CURIAM.

         John Sexton appeals his conviction for the first-degree murder of Ann

Parlato and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla.

Const. For the reasons explained below, we affirm Sexton’s conviction but reverse

his sentence of death and remand this case to the trial court for a new penalty

phase.

                                 I. BACKGROUND

         Ann Parlato was a ninety-four-year-old woman who lived alone in her Pasco

County home. John Sexton began cutting her lawn in the summer of 2010. On

September 23, 2010, a friend of Parlato’s found her deceased on her living room
floor. Her face had been bludgeoned to the point of being unrecognizable, and her

naked body was partially covered with a white sheet. There was blood spatter all

around her head. Her right breast had been cut off and a prosthetic breast pad

(which Parlato owned due to a prior mastectomy of her left breast) was placed over

the area where her right breast had been. The excised right breast was on the floor

near Parlato’s head. A vase protruded from her rectum. A purse had been placed

between her legs and set on fire, burning her genital and thigh areas. A knife was

on the floor near her body.

      Despite having been cleaned two days earlier, Parlato’s home was in

complete disarray. The front door was left partially open and the foyer was

covered in dirt and leaves. Various objects had been pulled out of drawers and

were on the floor in the living room. There was blood in the foyer, in the living

room, on the curtain above the kitchen sink, on a stool in the shower in the master

bathroom, on the floor and shower curtain in the hall bathroom, and on the door

and sheets in Parlato’s bedroom. The kitchen was a mess, with food strewn about

on the floor. Several kitchen knives were in the basin of the kitchen sink. A large

wooden clock in the living room had a knife protruding from the top of it. Bottles

of cleaner that appeared to have been opened were on the floor near the washer and

dryer, and a bottle of bleach had blood on it. There were bloodstains on the

exteriors of the washer and dryer. There was what appeared to be a bloody


                                        -2-
handprint on the dryer. There were also bloodstains inside the washer, as well as

some grass, cigarette butts, and several items of clothing. The contents of the

washer were wet, as if they had been through the wash cycle. There were Band-

Aid wrappers and a Band-Aid box on the kitchen counter. Although Parlato had

asthma and did not allow smoking in her home, there were cigarette ashes in the

dining room and on a footstool in the living room and cigarette butts in the kitchen

trashcan and the toilet, in addition to the washing machine.

      Dr. Jonathan Thogmartin, the medical examiner, observed Parlato’s body as

it was found at the crime scene and subsequently conducted the autopsy. He

determined the cause of Parlato’s death to be blunt trauma to the face, head, and

neck and the manner of death to be homicide. The autopsy revealed that Parlato’s

cheek bones, eye sockets, and chin were crushed. Her jaw was broken and

dislocated. She suffered multiple lacerations, blunt force impacts, rib fractures, a

dislocated spine, and bruising to the brain. There were five vaginal lacerations or

tears, which were consistent with a forcible sexual battery having occurred. Dr.

Thogmartin determined that the removal of the right breast, insertion of the vase,

burning, and a stab wound to the abdomen occurred postmortem.

      An expert in blood pattern analysis and crime scene reconstruction

determined that Parlato was struck by at least three impact blows in the foyer area.

And an impact bloodstain on a chair in the living room indicated another forceful


                                         -3-
blow. At least seven other forceful blows were indicated by stains in the area

where her body was found. Parlato’s upper body was in a raised position during

one blow and her head was on the floor for the remainder of the blows. Blood in

other areas of the home indicated that the perpetrator moved around the home after

the attack. Three circles on the living room floor were consistent with the size of

the bottom of a two-gallon bucket found in the house and indicated an attempt to

clean up. The cleanup attempt was corroborated by the odor of bleach in the

house.

      Devlynn Saunders, David Carlin, and Patrick Grattan lived together in the

house next door to Parlato’s. Around 11:30 p.m. on September 22, Carlin went

outside to smoke a cigarette. At that time, he did not notice a truck in Parlato’s

driveway or anything unusual about her house. Around midnight, all three of the

roommates heard a loud boom or thud coming from the direction of Parlato’s

house. When they went outside to investigate the noise, they saw a truck parked in

Parlato’s driveway and, through an open kitchen window and open curtains,

observed a man standing at her kitchen sink. The man appeared to be doing

dishes; the water was running and items were clanking around in the sink.

Saunders and Carlin recognized the man as Sexton because they had seen him

cutting Parlato’s grass and he had approached them on several occasions inquiring

whether they were interested in his lawn care services. They also recognized the


                                         -4-
truck in Parlato’s driveway as Sexton’s. They thought it was odd that Sexton was

at Parlato’s at such a late hour, but they were not too concerned because Parlato

was a “night owl.” They assumed that maybe Sexton was helping Parlato with

something and decided just to take down the license plate number from the truck

and go back to bed. After learning of Parlato’s murder the next day, Carlin

provided the plate number from the truck to the police, who confirmed that the

truck was registered to Sexton and his wife, Catherine. Although Saunders and

Carlin were unable to pick Sexton out from sets of six photographs shown to them

by police, they both identified him at trial as the man they saw in Parlato’s kitchen

after midnight on September 23, 2010.

      Several hours after Parlato’s body was discovered, Pasco County Sheriff’s

Detectives Robert Grady and Jason Hatcher went to speak with Sexton at his

home, which was located less than a mile from Parlato’s house. Sexton was

standing outside when the detectives arrived. He was wearing a gray T-shirt and

khaki shorts, which appeared to have bloodstains on them. When the detectives

approached, Sexton appeared nervous, his hands were shaking, and he kept trying

to turn his knuckles inwards. Sexton had a small, half-moon-shaped cut on his

right knuckle, which he said was caused by a razor blade he used to trim a tree

earlier that week. The conversation was recorded by a device in Detective

Hatcher’s pocket.


                                        -5-
      The detectives told Sexton that they were there because Parlato had been

murdered. Sexton acted surprised by the news. He said he had last seen Parlato

the night before when he stopped by her house around 8 p.m. or 8:30 p.m. to ask if

she wanted any more work done in her yard. He said that he was only there for

about ten minutes and had talked to Parlato in her foyer. Sexton said that after he

left Parlato’s, he went to a bar for one beer and then he drove around and had

another beer in the car before going home around 10:30 p.m.

      During the conversation, Sexton’s wife, Catherine, came outside, and Sexton

told her that Parlato had been murdered. Sexton asked Catherine what time he got

home the night before. He asked her, “10:30, maybe? Something like that?” and

then stated, “She doesn’t remember.” Detective Grady said that Catherine then

said to him in a quiet voice, which was not picked up by the recording device,

“He’s not telling the truth. He got home at 2:00 a.m.”

      When Sexton was told that a neighbor had seen him in Parlato’s kitchen and

his truck in Parlato’s driveway much later than 8:30 p.m., Sexton said that was not

possible. Before going with the detectives to the Sheriff’s Office, Sexton provided

a DNA sample, the shirt and shorts he was wearing—which he said were the same

clothes he wore to Parlato’s the night before—and the boots he had been wearing

the night before.




                                        -6-
      At trial, Catherine testified that she and Sexton were arguing on the evening

of September 22, 2010, because Sexton was drinking beer. She saw him around 7

p.m. at one of his lawn jobs, and he appeared a little bit impaired. She went

looking for him later and encountered him again around 9:30 p.m. in the driveway

of a vacant house. He appeared to have drunk more beer since she had seen him

around 7 p.m., and they continued to argue. She then saw him come out of a

convenience store around 9:45 p.m. with more beer. The store’s surveillance tape,

which was introduced at trial, showed Sexton leaving the store at 9:47 p.m. There

were no blood stains on his clothes at that time. At that point, Catherine was

concerned about Sexton’s well-being and she called 911 to report that Sexton was

drinking and driving. Catherine went home and tried many times to call Sexton,

but he did not answer. She went to bed around 1:45 a.m., and Sexton knocked on

the door around 1:55 a.m. Catherine let Sexton in but made him sleep on the

couch.

      A DNA analyst from the Florida Department of Law Enforcement (FDLE),

Lisa Thomas, analyzed the clothes Sexton was wearing when Parlato was

murdered, swabbings and clippings taken from Sexton’s hands on September 23,

2010, and some of the knives found in Parlato’s home. The stains on Sexton’s

clothing and a swab from his boots tested presumptively positive for the presence

of blood. And despite the fact that it appeared that the clothes had been washed


                                        -7-
after they were stained, Thomas was able to obtain a DNA profile from the stains

and the boot swab, both of which matched the known DNA profile of Parlato, with

the frequency of that profile occurring in the population at random being

approximately 1 in 69 trillion. A swabbing of the cuticles from Sexton’s right

hand tested presumptively positive for the presence of blood, and a DNA mixture

profile obtained from the swab matched Parlato’s DNA with the likelihood of a

random match being 1 in 420,000. A DNA mixture obtained from fingernail

clippings from Sexton’s right hand matched Parlato’s DNA with the likelihood of a

random match being 1 in 4,200. The foreign DNA on the cuticles of Sexton’s left

hand matched Parlato’s DNA with the likelihood of a random match being 1 in 76

million.

      Thomas concluded that DNA on the blade of a knife found in Parlato’s

kitchen sink matched Parlato’s DNA with the likelihood of a random match being

1 in 69 trillion. Parlato’s DNA was also on the handle of that knife along with

DNA from another individual. The DNA on the knife handle that did not match

Parlato’s DNA could have originated from Sexton, but Thomas did not have

enough information to include him as a possible contributor. DNA on the blade—

which tested presumptively positive for the presence of blood—and handle of the

knife found in the clock in Parlato’s home matched Parlato with the likelihood of a

random match being 1 in 69 trillion. A partial DNA profile (DNA was present at


                                       -8-
12 of the 13 loci tested) on the blade of the knife found on the living room floor

also matched Parlato’s DNA with the likelihood of a random match being slightly

less than 1 in 69 trillion.

       Another FDLE DNA analyst, Sean Michaels, obtained a DNA profile from

the cigarette butt found in Parlato’s kitchen trashcan and determined that it

matched Sexton’s, with the likelihood of a random match being 1 in 150

quadrillion.

       A footwear impression analyst from FDLE analyzed the footwear

impressions left at Parlato’s house and Sexton’s boots. She concluded that five

right footwear impressions left at the scene could have been made by Sexton’s

right boot.

       Sexton did not testify at trial. The jury was instructed on theories of both

first-degree premeditated murder and first-degree felony murder and returned a

general verdict finding Sexton guilty of first-degree murder. After the penalty

phase, the jury recommended that a sentence of death be imposed by a vote of 10-

2. The trial court ultimately followed the jury’s recommendation.

                                   II. ANALYSIS

       Sexton raises four guilt phase issues and eight penalty phase issues on

appeal. We address Sexton’s guilt phase issues as well as sufficiency of the

evidence but as to the penalty phase, we address only the dispositive issue.


                                         -9-
                    A. Cross-examination of DNA Analysts

      Sexton contends that the trial court erred by denying him the opportunity to

cross-examine FDLE DNA analysts Lisa Thomas and Sean Michaels regarding

prior instances of contamination in analyses they conducted in other cases. We

disagree.

      Thomas testified during a pretrial deposition that while employed by FDLE

from 2006-2011, she had approximately six to ten instances of various errors in

other cases, including contamination, carryover, unexplained profiles, and

mislabeling of samples, all of which occurred prior to her work on Sexton’s case.

Each time an error arose, she completed a form to document the error or

contamination event and to explain which cases were affected, what she believed

went wrong, and how she would prevent the error from recurring.

      Michaels testified during a pretrial deposition that he had approximately

three or four instances of contamination in the six years he had worked for FDLE,

the most recent of which was in 2010 or 2011, before he worked on Sexton’s case

in 2012. He documented the prior instances of contamination in a log, in which he

explained what could have caused the contamination in those analyses.

      The State filed a motion in limine to preclude the defense from questioning

Thomas at trial regarding her prior instances of contamination in other cases,

arguing that acts of misconduct are not admissible for impeachment. Sexton


                                       - 10 -
responded that evidence of prior contamination tended to show that Thomas

“might not be credible in observing what she’s testifying about,” but he admitted

that all FDLE protocols were followed in this case and that there was no evidence

of any error in the DNA analysis. The trial court granted the motion in limine,

ruling that the prior instances of contamination were not relevant to Thomas’s

actions in this case and that the defense could not question her about those prior

instances unless she were to testify that she never had any issues with

contamination.

      At trial, Thomas did not testify that she never had any issues with

contamination, but Sexton requested reconsideration of the trial court’s in limine

ruling and sought to cross-examine Thomas regarding the prior instances of

contamination. The trial court declined to overrule its pretrial ruling. During

Michaels’ trial testimony, Sexton proffered Michaels’ deposition testimony

regarding his prior instances of contamination “in line [sic] of the State’s motion in

limine concerning the prior incidents [sic] of the contamination that was testified to

by Ms. Johnson [sic].”

      A trial court’s ruling regarding the scope and limitation of cross-examination

rests in the sound discretion of the court and is subject to review for abuse of that

discretion. See McCoy v. State, 853 So. 2d 396, 406 (Fla. 2003). It is well-

established that evidence of particular acts of misconduct cannot be introduced to


                                        - 11 -
impeach the credibility of a witness. Farinas v. State, 569 So. 2d 425, 429 (Fla.

1990); see §§ 90.608-610, Fla. Stat. (2012).

      In Cruse v. State, 588 So. 2d 983, 988 (Fla. 1991), the defendant argued on

appeal that the trial court erred by failing to allow cross-examination of a State

expert, Dr. Kirkland, as to his examination of a defendant in another capital case,

State v. Sireci, 536 So. 2d 231 (Fla. 1988), in which we upheld a trial court’s

finding that “Dr. Kirkland had rendered an incompetent medical evaluation.” The

trial court in Cruse “determined that the competency of Dr. Kirkland’s evaluation

of Sireci was a purely collateral matter, the probative value of which was

outweighed by the danger of confusing the issues and misleading the jury.” Cruse,

588 So. 2d at 988. We agreed, noting that the “proposed evidence [did] not fall

under any of the express ways allowed to attack a witness’s credibility” under

section 90.608, Florida Statutes (1987). Id. Moreover, “[i]f such inquiry were

permissible, every trial involving expert testimony could quickly turn into a battle

over the merits of prior opinions by those experts in previous cases . . . .” Id.

      The reasoning of Cruse applies here. The evidence at trial showed that when

Sexton was arrested, he was wearing the same clothes he had on the night before.

Thomas testified that despite the clothes having been washed before they were

obtained by law enforcement, she was able to develop complete DNA profiles

from blood on Sexton’s shirt, shorts, and shoes, each of which matched Parlato’s


                                         - 12 -
complete DNA profile. There was no evidence that the DNA samples in this case

were contaminated and the prior instances of contamination were irrelevant to this

case. Accordingly, the trial court did not abuse its discretion in disallowing cross-

examination of Thomas regarding prior instances of contamination.

      Sexton’s claim that the trial court erred in limiting his cross-examination of

Michaels is not preserved for review. The State’s motion in limine sought only to

preclude cross-examination of Thomas regarding prior instances of contamination

in other cases in which she was involved; it made no mention of Michaels.

Michaels’ work was not challenged by Sexton at the hearing on the State’s motion

in limine, and Sexton did not attempt to cross-examine Michaels regarding his

prior instances of contamination at trial nor did he receive a ruling from the trial

court as to whether or not the court would permit him to do so. Moreover, even if

this claim were preserved and the trial court had limited cross-examination of

Michaels regarding his prior instances of contamination, we would conclude that

the trial court did not abuse it discretion for the same reasons explained above with

regard to Thomas’s prior instances of contamination.




                                         - 13 -
               B. Testimony Regarding the Attempted Auto Burglary
      Sexton contends that the trial court abused its discretion by treating the

proffered testimony of Stephen Tarnowski as reverse Williams1 rule evidence and

excluding it. Sexton asserts that Tarnowski’s testimony should have been admitted

because it placed other suspects in the vicinity of Parlato’s house near the time of

the murder. We disagree.

      Tarnowski, who lived a few streets away from Parlato, testified in a proffer

that on September 23, 2010, he went out on his porch to smoke a cigarette

sometime between 1 a.m. and 3 a.m. and observed two shirtless men trying to

break into a neighbor’s car. When he yelled at the men, they ran away. When

Tarnowski learned of Parlato’s murder the next day, he went to Parlato’s house and

reported what he had observed in the early morning hours to a uniformed officer

on scene.

      The trial court ruled that Tarnowski’s testimony was inadmissible as reverse

Williams rule evidence, noting there was no evidence that Parlato’s home was

burglarized.

             “Reverse Williams rule” evidence is evidence of a crime
      committed by another person that a defendant offers to show his or
      her innocence of the instant crime. The defendant must demonstrate a
      “close similarity of facts, a unique or ‘fingerprint’ type of
      information” for the reverse Williams rule evidence to be admissible.


      1. Williams v. State, 110 So. 2d 654 (Fla. 1959).


                                        - 14 -
McDuffie v. State, 970 So. 2d 312, 323 n.2 (Fla. 2007) (citation omitted). Because

there was no factual similarity between Parlato’s murder and the attempted auto

burglary several blocks away, we find no error in the trial court’s conclusion that

the evidence did not meet the standard for admission as reverse Williams rule

evidence. Even assuming that the trial court should not have analyzed the

admissibility of Tarnowski’s testimony under the reverse Williams rule standard,

because the testimony was irrelevant, the trial court did not err in excluding it.

See, e.g., Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (recognizing that the

“tipsy coachman” doctrine is a longstanding principle of appellate law that allows

an appellate court to affirm a trial court that reaches the right result but for the

wrong reason so long as there is any basis which would support the judgment in

the record).

      In order for evidence—reverse Williams rule evidence or otherwise—to be

admissible, it must be relevant. Evidence is relevant if it tends to prove or disprove

a material fact. § 90.401, Fla. Stat. (2012). Sexton contends that Tarnowski’s

testimony was relevant because it placed other suspects in the area near the time of

the murder. But the fact that two people may have attempted to gain access to a

vehicle parked several streets away from Parlato’s house sometime between 1 a.m.

and 3 a.m. on September 23, 2010, does not make them “suspects” in Parlato’s

murder. And the mere fact that an attempted auto burglary occurred several blocks


                                          - 15 -
away in the general time frame of the murder does not tend to disprove that Sexton

murdered Parlato. Thus, Tarnowski’s testimony was not relevant. Accordingly,

the trial court did not err in excluding it.

                  C. Catherine Sexton’s Statement to Detectives

       Detectives Grady and Hatcher went to Sexton’s home during the afternoon

of September 23, 2010, to interview him regarding Parlato’s murder. During the

interview, Sexton’s wife, Catherine, came out of the house and joined the three

men in the front yard. The interview was recorded and the portion pertinent to this

claim was heard by the jury as follows:

       SEXTON: Do you know that old lady Ann, the one that talks on the
       phone when she calls me to do her lawn?

       CATHERINE: Uh-huh.

       SEXTON: They said they think she was murdered last night.

       CATHERINE: Oh, my God.

       SEXTON: Because I had driven by there just after I seen you,
       because her lawn wasn’t quite up, but sometimes she wants me to do
       other things. She’s always got a multitude of things she wants done,
       and I was trying to pick up an extra job, and talking to her around ten
       minutes.
       ....

       SEXTON: What time did I get home last night? 10:30, maybe?
       Something like that? [Catherine] doesn’t remember.

       DETECTIVE HATCHER: All right. So you got home -- you’re
       saying you got home around 10:30 [p.m.]
       SEXTON: Around 10:30 [p.m.]

                                          - 16 -
      Detective Grady testified that Sexton was addressing his wife when he

asked, “What time did I get home last night? 10:30, maybe?” and that immediately

after Sexton said he arrived home at 10:30, Catherine said to Detective Grady in a

quiet voice that was not picked up on the recording, “He’s not telling the truth. He

got home at 2:00 a.m.” Sexton objected, arguing that Detective Grady’s testimony

about what Catherine said was hearsay, but the trial court overruled the objection.

Sexton now argues that the trial court erred in overruling his hearsay objection and

admitting Catherine’s statement through Detective Grady.

      Sexton is not entitled to relief on this claim. Even if the trial court erred in

admitting Catherine’s statement through Detective Grady, Catherine testified at

trial that Sexton arrived home at 1:55 a.m. on the night of the murder. Thus, the

jury still would have heard that, according to Catherine, Sexton actually arrived

home at 1:55 a.m. on September 23, 2010. Because admission of the same

statement through Detective Grady was merely cumulative to Catherine’s trial

testimony, we conclude that there is no reasonable possibility that the admission of

Catherine’s out-of-court statement affected the verdict. Accordingly, any error in

admitting the statement through Detective Grady was harmless beyond a

reasonable doubt.




                                        - 17 -
                       D. Evidence of Postmortem Injuries

      Sexton claims that the trial court erred in admitting photographs and

testimony relating to injuries that were inflicted on Parlato’s body after her death,

specifically, the insertion of the vase into the rectum and a rectal tear, the burns to

the genital and thigh areas, a stab wound to the abdomen, and the removal of the

right breast. Sexton contends that four photographs depicting the deceased victim

were not relevant to the cause of death, the identity of the perpetrator, or the issue

of premeditation and that the probative value of the evidence was substantially

outweighed by the danger of unfair prejudice. Sexton further contends that the

medical examiner should not have been allowed to testify about the postmortem

injuries because they were irrelevant to the cause of death and highly prejudicial.

      The admission of photographic evidence is within the trial court’s discretion

and a ruling on this issue will not be disturbed on appeal absent a clear showing of

abuse of discretion. Douglas v. State, 878 So. 2d 1246, 1255 (Fla. 2004);

Pangburn v. State, 661 So. 2d 1182, 1187 (Fla. 1995). We have consistently held

that “[t]he test for admissibility of photographic evidence is relevancy rather than

necessity.” Douglas, 878 So. 2d at 1255 (quoting Pope v. State, 679 So. 2d 710,

713 (Fla. 1996)). “[P]hotographs are admissible if they are relevant and not so

shocking in nature as to defeat the value of their relevance.” Jennings v. State, 123

So. 3d 1101, 1126 (Fla. 2013) (quoting Hertz v. State, 803 So. 2d 629, 641 (Fla.


                                         - 18 -
2001)). “Crime scene photographs are considered relevant when they establish the

manner in which the murder was committed, show the position and location of the

victim when he or she is found by police, or assist crime scene technicians in

explaining the condition of the crime scene when police arrived.” Id.

      The four challenged photographs depict Parlato’s body as it was found on

her living room floor. Exhibit 38 shows that Parlato’s right breast had been

removed and her prosthetic left breast pad was placed over the area from where the

right breast had been removed. The photograph was taken from behind Parlato’s

head, looking toward her feet. The prosthetic breast covered the area where the

cutting occurred on the body except for what defense counsel described to the trial

court as some “yellow-orange” tissue around the prosthetic. This photograph was

used by an expert in blood pattern analysis and crime scene reconstruction to

explain that the blood spatter around Parlato’s head evidenced that she received at

least seven blows while she was in the area in which she was found. Exhibits 93

and 94 show Parlato’s body mostly covered by a sheet. Exhibit 93 was taken from

a distance, and exhibit 94 shows only Parlato’s legs, which appear uninjured.

Exhibit 95 shows Parlato’s body without the sheet. It was taken from the area of

Parlato’s feet, looking toward her head. A forensic crime scene investigator used

exhibits 93, 94, and 95 to explain the position and condition in which Parlato’s

body was found. The medical examiner, Dr. Thogmartin, also used the


                                       - 19 -
photographs to describe the way Parlato’s body looked when he arrived. He

testified that the state in which the body was found supported his opinion that

Parlato’s death was a homicide. Dr. Thogmartin also used the photographs to

illustrate how he concluded that Parlato suffered multiple blunt traumas to her face,

a circumstance which was relevant to the element of premeditation.

      Because the photographs established the manner in which the murder was

committed, showed the position and location of the victim when she was found,

and assisted the witnesses in explaining the condition of the crime scene when

police arrived, they were undoubtedly relevant. And their gruesome nature was

not so shocking as to defeat the value of their relevance or unfairly prejudice

Sexton. Accordingly, the trial court did not abuse its discretion in admitting the

four challenged photographs. See Pope, 679 So. 2d at 713-14 (finding no abuse of

discretion in admission of gruesome crime scene and autopsy photos where photos

were relevant to establish the manner in which the murder was committed, to assist

the crime scene technician in explaining the condition of the crime scene when the

police arrived, and to illustrate the medical examiner’s testimony and the injuries

he noted on the victim).

      In describing his cursory examination of Parlato’s body to the jury, Dr.

Thogmartin noted that Parlato’s right breast had been removed and a vase was

protruding from her rectum. The testimony about the abdominal stab wound and


                                        - 20 -
cutting of the breast were relevant to explain the knives at the crime scene, which

corroborated and provided context to the neighbors’ observations of Sexton

washing objects in Parlato’s kitchen sink. The testimony about the vase was

relevant to describe the condition in which the body was found, and there was

testimony that the vase could have been the murder weapon and the object used to

commit the sexual battery. Because it could be reasonably inferred from the

evidence that Sexton set fire to Parlato’s genital and thigh areas in an attempt to

destroy evidence related to the sexual battery, the testimony regarding the burn

injuries was relevant to show consciousness of guilt. The trial court did not abuse

its discretion in allowing this testimony.

                          E. Sufficiency of the Evidence

      Although Sexton does not challenge the sufficiency of the evidence to

sustain his conviction for first-degree murder, this Court independently reviews the

record in death penalty cases to determine whether competent, substantial evidence

supports the conviction. Fla. R. App. P. 9.142(5) (“On direct appeal in death

penalty cases, whether or not insufficiency of the evidence or proportionality is an

issue presented for review, the court shall review these issues and, if necessary,

remand for the appropriate relief.”). “There is sufficient evidence to sustain a

conviction if, after viewing the evidence in the light most favorable to the State, a

rational trier of fact could find the existence of the elements of the crime beyond a


                                        - 21 -
reasonable doubt.” Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003). Where the

evidence of guilt is wholly circumstantial, “not only must the evidence be

sufficient to establish each element of the offense, but the evidence also must be

inconsistent with any reasonable hypothesis of innocence proposed by the

defendant.” Twilegar v. State, 42 So. 3d 177, 188 (Fla. 2010). Sexton’s jury was

instructed on theories of both first-degree premeditated murder and first-degree

felony murder, with the underlying felony being sexual battery, and returned a

general verdict of guilty of first-degree murder without specifying whether the

State proved first-degree murder, felony murder, or both. Here, we conclude that a

rational trier of fact could have found that the elements of both premeditated and

felony murder were proven beyond a reasonable doubt and that the evidence was

inconsistent with any reasonable hypothesis of innocence.

      Sexton’s identity as the killer was proved based on the following: he

admitted to being at Parlato’s house on the night of September 22, 2010; he was

seen at Parlato’s house around the time of the murder, appeared to be doing dishes,

and knives with Parlato’s DNA on them were later found in the sink; he had

Parlato’s blood on his clothes; cigarette butts with his DNA on them were found in

Parlato’s house even though she did not allow smoking in the house; and he lied to

law enforcement about his whereabouts at the time of the murder.




                                       - 22 -
      “Premeditation is a fully formed conscious purpose to kill that may be

formed in a moment and need only exist for such time as will allow the accused to

be conscious of the nature of the act he is about to commit and the probable result

of that act.” Asay v. State, 580 So. 2d 610, 612 (Fla. 1991). “Premeditation is a

factual issue to be determined by the jury and, like other factual matters, may be

established by circumstantial evidence.” Twilegar, 42 So. 3d at 190. The evidence

established that Parlato was a ninety-four-year-old woman who died as a result of

multiple blunt traumas to her face, head, and neck. The bones in her face were

crushed. There were so many fractures in her face that it was misshapen and felt

“crepitant” or “crunchy” to the medical examiner. Her orbits were fractured and

some of the bone penetrated her skull. Her brain was bleeding and bruised. Her

spine was dislocated as a result of the impacts to her head. She had several rib

fractures. Although Parlato was ninety-four years old, Dr. Thogmartin testified

that the amount of blunt trauma inflicted on her would likely have been fatal to

anyone. Bloodstain patterns revealed that she was hit numerous times in multiple

areas of the home. The whole of these facts provides competent, substantial

evidence to support a finding of premeditation.

      To prove first-degree felony murder, the State was required to prove that

Sexton caused Parlato’s death during the commission of a sexual battery. Parlato’s

body was found nude. The autopsy revealed the presence of three lacerations


                                       - 23 -
inside of the vagina—one of which was six centimeters long—and two at the entry

of the vagina, which were “standing very wide open.” The lacerations were

traumatic injuries caused by the insertion of an object into the vagina. All of the

vaginal lacerations bled, meaning Parlato was alive when they were inflicted.

These injuries would have caused horrible pain and were consistent with a forcible

sexual battery. Thus, there is competent, substantial evidence to support a finding

that Parlato’s death occurred during the commission of a sexual battery and

therefore to sustain a felony murder conviction.

                                      F. Hurst

      During the pendency of Sexton’s appeal, the United States Supreme Court

issued its decision in Hurst v. Florida, 136 S. Ct. 616, 619 (2016), in which it held

that Florida’s former capital sentencing scheme violated the Sixth Amendment

because it “required the judge to hold a separate hearing and determine whether

sufficient aggravating circumstances existed to justify imposing the death penalty”

even though “[t]he Sixth Amendment requires a jury, not a judge, to find each fact

necessary to impose a sentence of death.” On remand in Hurst v. State, 202 So. 3d

40, 57 (Fla. 2016), cert. denied, No. 16-998, 2017 WL 635999 (U.S. May 22,

2017), we held that

      before the trial judge may consider imposing a sentence of death, the
      jury in a capital case must unanimously and expressly find all the
      aggravating factors that were proven beyond a reasonable doubt,
      unanimously find that the aggravating factors are sufficient to impose

                                        - 24 -
      death, unanimously find that the aggravating factors outweigh the
      mitigating circumstances, and unanimously recommend a sentence of
      death.

      In light of the nonunanimous jury recommendation to impose a death

sentence, it cannot be said that the failure to require a unanimous verdict was

harmless. See Franklin v. State, 209 So. 3d 1241, 1248 (Fla. 2016) (“In light of the

non-unanimous jury recommendation to impose a death sentence, we reject the

State’s contention that any Ring[ v. Arizona, 536 U.S. 584 (2002)]- or Hurst v.

Florida-related error is harmless.”), petition for cert. filed, No. 16-1170 (U.S. Mar.

23, 2017). We therefore reverse Sexton’s death sentence and remand for a new

penalty phase.

                                III. CONCLUSION

      For the foregoing reasons, we affirm Sexton’s conviction for first-degree

murder, but vacate his death sentence and remand for a new penalty phase.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
PARIENTE, J., concurs with an opinion.
LAWSON, J., concurs specially with an opinion.
CANADY, J., concurs in part and dissents in part with an opinion, in which
POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., concurring.




                                        - 25 -
       I concur in the majority’s holding to affirm Sexton’s conviction and reverse

his sentence of death and remand for a new penalty phase in light of Hurst v.

Florida, 136 S. Ct. 616 (2016), and Hurst v. State (Hurst), 202 So. 3d 40 (Fla.

2016), cert. denied, No. 16-998, 2017 WL 635999 (U.S. May 22, 2017). I write

separately to expand on the Hurst analysis, specifically reviewing the mitigation

presented at trial.

       Following the penalty phase in Sexton’s trial, the jury recommended a

sentence of death by a vote of 10-2. Majority op. at 9. At trial, although the State

presented evidence of three aggravating factors, which the trial court found and

afforded great weight, this Court has no way of knowing which aggravators the

jury unanimously determined were proven beyond a reasonable doubt and whether

the jury unanimously found the aggravators sufficient to warrant the imposition of

the death penalty.2 See Hurst, 202 So. 3d at 44.

       On the other hand, the defense presented evidence as to three statutory

mitigating circumstances. First, the defense presented Sexton’s criminal history,

which consisted of “several misdemeanors and at least one felony non-violent

crime” to establish that defendant has no significant history of prior criminal




        2. Although the majority does not address this claim, Sexton challenges the
trial court’s finding of the HAC aggravating factor in this appeal.


                                        - 26 -
activity. The trial court assigned this statutory mitigating circumstance moderate

weight.

      Second, the defense presented evidence to support the mitigating

circumstance that the murder was committed while the defendant was under the

influence of extreme mental or emotional disturbance, which the trial court

assigned little weight. This evidence included the fact that Sexton had been

diagnosed with anti-social personality traits in 1993. In 2009, he was diagnosed

with Major Depressive Disorder. Dr. McClain testified at trial that Sexton suffers

from bipolar disorder and alcohol dependency; the trial court found Dr. McClain’s

testimony credible. Although the trial court rejected Dr. McClain’s opinion that

Sexton was suffering from a “manic” episode at the time of the murder, the trial

court agreed that the “defendant suffers from a mental disease or defect.”

      Third, the defense presented the testimony of Dr. McClain and Dr. Maher to

support the mitigating circumstance that defendant’s capacity to appreciate the

criminality of his conduct, or to conform his conduct to the requirements of the

law, was substantially impaired. The trial court found that this statutory mitigating

circumstance was established but assigned it little weight. The defense also

presented evidence as to nonstatutory mitigating circumstances regarding the

defendant’s conduct during trial and incarceration and his amenability to

rehabilitation, which the trial court assigned little weight.


                                         - 27 -
      The bottom line is that this Court has no way of knowing whether the jury

unanimously found that the aggravation outweighed the mitigation, especially in

light of the statutory mitigation presented that consisted of no significant history of

prior criminal activity and mental impairments. As we reiterated in Hurst, the

focus of the harmless error test “is on the effect of the error on the trier-of-fact.”

202 So. 3d at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986)).

Thus, in light of the jury’s 10-2 vote to recommend a sentence of death in Sexton’s

case, this Court has no way of knowing if the jury unanimously found each

aggravating factor, whether the aggravating factors were sufficient to impose

death, or whether the aggravating factors outweighed the mitigating circumstances.

See id. at 44. Further, this Court cannot speculate why the two jurors who voted to

recommend a sentence of life imprisonment determined that a sentence of death

was not the appropriate punishment. Thus, I agree with the majority’s conclusion

that the Hurst error in Sexton’s case was not harmless beyond a reasonable doubt.

LAWSON, J., concurring specially.

      See Okafor v. State, 42 Fla. L. Weekly S639, S641, 2017 WL 2481266, at

*6 (Fla. June 8, 2017) (Lawson, J., concurring specially).

CANADY, J., concurring in part and dissenting in part.




                                         - 28 -
      I concur in the decision to affirm Sexton’s conviction, but because I

conclude that any error under Hurst v. Florida, 136 S. Ct. 616 (2016), was

harmless, I dissent from the decision to vacate his death sentence.

      I adhere to my view that Hurst v. Florida only requires that the jury find the

existence of an aggravating circumstance that renders a defendant eligible for a

death sentence. See Hurst v. State, 202 So. 3d 40, 77 (Fla. 2016) (Canady, J.,

dissenting) (noting “the Hurst v. Florida Court’s repeated identification of

Florida’s failure to require a jury finding of an aggravator as the flaw that renders

Florida’s death penalty law unconstitutional”), cert. denied, No. 16-998, 2017 WL

635999 (U.S. May 22, 2017); see also Hurst v. Florida, 136 S. Ct. at 624

(“Florida’s sentencing scheme, which required the judge alone to find the existence

of an aggravating circumstance, is therefore unconstitutional.”).

      Sexton’s jury was instructed on three aggravating circumstances: (1) the

victim of the capital felony was particularly vulnerable due to advanced age or

disability; (2) the capital felony was committed while Sexton was engaged in the

commission of a sexual battery; and (3) the capital felony was especially heinous,

atrocious, or cruel (HAC). Although the trial court concluded that all three

aggravating circumstances were proven beyond a reasonable doubt, the jury made

no specific findings regarding the aggravating circumstances. Where the jury has

not been instructed to find an element of the offense, the test for harmless error


                                        - 29 -
asks whether it is clear beyond a reasonable doubt that a rational jury would have

found the element of the offense. Neder v. United States, 527 U.S. 1, 18 (1999).

      As to the particularly vulnerable due to advanced age or disability

aggravator, the evidence established that Parlato was ninety-four years old and

used a cane. There was unrebutted testimony from Dr. Thogmartin that she had

previously undergone surgery to repair a fractured hip and she was weak. Because

of her advanced age, her bones fractured easily.

      As to the sexual battery aggravator, Dr. Thogmartin testified that the five

vaginal lacerations—one of which was internal and six centimeters long, and two

of which were external and “standing very wide open”—were traumatic injuries

caused by insertion of an object into the vagina, were consistent with a forcible

sexual battery, were inflicted while Parlato was alive, and would have caused

horrible pain if she was conscious. Thus, there is no doubt that Parlato was subject

to a sexual battery and that the act was nonconsensual either because she was

unconscious or in horrible pain.

      Finally, as to the HAC aggravator, the evidence established that Parlato was

violently beaten about the head and neck. So many bones in her face were

fractured that it felt “crunchy” to Dr. Thogmartin. In addition to the vaginal tears

and facial trauma, Parlato suffered multiple lacerations, rib fractures, a dislocated

spine, and her brain was bleeding and bruised. Although Dr. Thogmartin testified


                                        - 30 -
that Parlato would have been rendered unconscious at some point during the attack,

the evidence proves that she was not immediately rendered unconscious. The

blood evidence established that Parlato was violently struck at least three times

near her front door before she moved into the living room and that she was still

upright when at least one of the many additional blows was inflicted in the living

room. She also had a defensive wound to a finger.

      Based on the evidence presented in this case, it is clear beyond a reasonable

doubt that no rational jury would have failed to find that the three aggravators were

proven beyond a reasonable doubt. Thus, any error in failing to require a

unanimous jury finding regarding the existence of an aggravating circumstance as

required by Hurst v. Florida was harmless.

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Pasco County,
     Mary Morrissey Handsel, Judge - Case No. 512010CF006284A000WS

Howard L. “Rex” Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Candance M.
Sabella, Chief Assistant Attorney General, and Christina Z. Pacheco, Assistant
Attorney General, Tampa, Florida,

      for Appellee




                                        - 31 -
