        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      EDUARDO FELIPE ALMEIDA,
                             Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D12-4482

                             [February 4, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No. 09-001826CF10A.

  Carey Haughwout, Public Defender, and James W. McIntire, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A.
Tringali, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   During jury deliberations in appellant’s trial on multiple counts of
sexual battery of a minor, the jury reported that it was deadlocked. The
judge gave a modified Allen1 charge. Later, when the jury again reported
that it could not reach a verdict, the judge required the jury to report after
the weekend, at which time the judge gave a full Allen charge over
appellant’s objection. The jury then returned a verdict of guilty against
the appellant. We reverse, because our case law holds that giving two
Allen charges is per se reversible error. We also conclude that it was
impermissibly coercive of the jury under the facts and circumstances of
this case.

   Appellant was charged with eleven counts of sexual battery, lewd or
lascivious molestation, and lewd or lascivious battery on S.J.M., a male

1 Allen v. United States, 164 U.S. 492 (1896). The full charge is currently
contained in Florida Standard Jury Instruction (Criminal) 4.1 entitled “Jury
Deadlock.”
minor and son of appellant’s girlfriend. S.J.M’s mother also was employed
by the appellant, thus making appellant the sole source of income for the
family. S.J.M. was between the ages of seven and thirteen during the time
of the alleged abuse.

   At trial, S.J.M. testified that the abuse began when he observed
appellant looking at pornography on his computer. He invited S.J.M. to
watch it with him. This led to various incidents of sexual activity. All of
this allegedly occurred while the mother was asleep in the bedroom.
S.J.M. testified that his mother kept her door closed most of the time.
According to S.J.M., the abuse started in Fort Lauderdale and continued
when appellant, the mother, and S.J.M. moved to Jacksonville because of
appellant’s business. S.J.M. testified that anal penetration probably
happened twenty to thirty times before the move to Jacksonville and about
the same number of times in Jacksonville. Once, when the mother and
S.J.M. were fighting, he blurted out that he had been molested by the
appellant. His mother did not believe him, and he later denied it.

   Appellant’s Jacksonville business fell apart, and they moved back to
Fort Lauderdale where the abuse continued, S.J.M. testified. S.J.M. was
very unhappy to move back, because he preferred Jacksonville over Fort
Lauderdale.

    About four months after the family moved back to south Florida, the
allegations against appellant surfaced through J.M., a schoolmate to
whom S.J.M. revealed the abuse. He had asked J.M. not to tell anyone
about it, because his mother was both financially dependent on appellant
and happy with him. S.J.M. testified that he was pulled out of class at
school and was told that J.M.’s mom had called the school, saying she had
overheard S.J.M. and J.M. talking on the phone about the abuse.

    S.J.M.’s mother testified that when the police originally revealed the
allegations to her, she did not believe them. Although she had been in
denial, she now believes her son. On cross, appellant established that
police told the mother she “could make more problems and more
difficulties for” herself if she did not “try to understand and believe the
situation.”

   After the abuse was reported, S.J.M. was physically examined by a
nurse practitioner. She found no evidence of anal penetration, no injuries
or scarring of any kind around his anus. She opined that “[a]bsence of
injuries does not confirm nor negate the allegation of sexual abuse.” She
also opined that, due to the biological properties of the rectum, it could
expand to allow penetration without injury and also heal rapidly. She

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noted that, at the time she examined the victim, it was “two months after
the most recent incident.”

     Appellant called an expert witness, a doctor the state stipulated was an
expert in the rectum and anal trauma. Based on reviewing the records of
the state’s expert, the doctor did not find anything that would indicate
appellant had anal sex with S.J.M. The doctor opined that the nurse’s
examination was inadequate. After examining appellant and determining
the size of his penis, the doctor opined that, if he had had anal sex with
an eight-year-old boy, it would produce bleeding, excruciating pain, and,
if it happened chronically, fissures in the child’s rectum.

   Both experts indicated that, if lubrication was used, injury to the anus
would be less likely. S.J.M. testified that, prior to having anal sex, he
would perform oral sex on appellant, thereby lubricating appellant’s penis
with saliva.   Appellant attempted to impeach the victim with his
deposition, which appellant argued was inconsistent because S.J.M. did
not mention regularly performing this act for the purpose of lubrication.
Appellant’s expert opined that saliva was a poor lubricant and that there
was no way an eight-year-old child could accept an adult penis into his
anus, with only saliva as a lubricant, without causing physical trauma.

    Appellant further attacked the plausibility of S.J.M.’s story by
emphasizing conflicting testimony on several points. The mother and
appellant testified that she usually slept with her door open, not closed as
S.J.M. had testified. The mother, who did her son’s laundry, testified she
never saw blood or any other substance on his underwear. As to the
alleged abuse in Jacksonville, appellant testified it was impossible that he
had sufficient contact with S.J.M. during this time period for the abuse to
have occurred as often as S.J.M. alleged, because appellant was often
travelling between his offices in Orlando, Tampa, and Jacksonville.

   Appellant also attempted to establish a motive for the victim to lie: that
he hoped to get rid of appellant, so S.J.M. could convince his mom to move
back to Jacksonville. Appellant testified the S.J.M. was “furious” about
having to leave Jacksonville, “had quite a few fights with his mom,” and at
one point “ran away.” After the move, S.J.M. constantly complained about
his school in south Florida. His mother agreed that he was upset about
leaving Jacksonville. On cross-examination, S.J.M. admitted that he
preferred Jacksonville to south Florida. A private paper/journal entry
which he wrote during an in-school suspension was introduced into
evidence. In it, S.J.M. referred to Jacksonville as heaven and Fort
Lauderdale as hell. The in-school suspension when this note was written


                                     3
occurred just before S.J.M.’s conversations with his school friend, which
led to the reporting of the alleged abuse.

    Perhaps most importantly, counsel asked S.J.M. whether appellant was
circumcised, and he said yes. Both appellant and his expert witness, a
doctor who had examined him, testified that appellant was not
circumcised. The doctor opined appellant’s penis could not be mistaken
for a circumcised one unless it was fully erect.

   The jury deliberated for approximately a day and a half, and then sent
out a note that read: “We feel that at this time we the jury have reach[ed]
an impass, [sic] which we feel will prevent us from reaching a unanimous
decision. How should we proceed?” The state asked the court to give the
jury an Allen charge; appellant’s counsel stated he was “unfamiliar with
that” because he had “never had a hung jury.” After discussing with
counsel, and neither side objecting, the court advised the jury: “Please
continue to deliberate until you reach unanimous verdicts or until you
advise the court that you are ‘hopelessly deadlocked.’”

   Later that day, a Friday, the jury sent out another note stating: “At this
time, we [the] jury advise the court that we are ‘hopelessly deadlocked.’”
After a discussion with the lawyers, the court called the jury out and told
them: “Ladies and Gentlemen, I do have your note. So there is one further
instruction that I’m going to give you. However, I’m going to have to give
you that instruction on Monday.” He directed them, “Do not discuss the
case over the weekend. Clear your minds. Come in refreshed.”

   When the trial reconvened on Monday morning, appellant’s counsel
objected to the giving of the Allen charge. He maintained that the court
had given a modified Allen charge to the jury, after which the jury
maintained that they were hopelessly deadlocked. As a matter of law, he
argued, the court had to declare a mistrial. The court denied the mistrial
because it did not believe that its prior instruction was a modified Allen
charge. The court then charged the jury as follows:

          Before we broke you sent out a note indicating that you
     believed you were hopelessly deadlocked. I know all of you
     have worked hard to try to find a verdict in this case. It,
     apparently, has been impossible for you so far.
          Sometimes an early vote before discussion can make it
     hard to reach an agreement about the case later. A vote not
     discussed might make it hard to see all sides of the case.
          We are all aware that it’s legally permissible for a jury to
     disagree. There are two things that the jury can lawfully do;

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     agree on a verdict or disagree on what the facts of the case may
     truly be.
          There is nothing to disagree about on the law. As I told
     you, if you have any disagreement[s] about the law, I should
     clear them up for you. That should be my problem and not
     yours. If you disagree over what you believe the evidence
     showed, then only you can resolve that conflict, if it is to be
     resolved.
          I have only one request of you. I cannot demand this of
     you. But I want you all to go back into the jury room and then,
     taking turns, tell each of the other jurors about any weakness
     in your own position. You should not interrupt each other or
     comment on each other’s views until each of you has a chance
     to talk.
          After you’ve done that, if you simply cannot reach a verdict
     then return to the courtroom and I will declare this case
     mistried and you will be discharged with my sincere
     appreciation for your services.
          Please, retire to continue your deliberations.

   The jury then deliberated all day, asking no further questions. At the
end of the day, they returned a verdict of guilty as charged on all counts.
The court convicted appellant and sentenced him to life in prison on some
counts, thirty years in prison on others, and fifteen years on the remaining
counts, many to be served consecutively. From those convictions and
sentences, appellant files this appeal.

    Appellant claims that it was fundamental error to give two Allen charges
to the jury. While we think that appellant preserved this issue by objecting
to the giving of the second instruction, even if it were not preserved we
have held that the giving of two such charges is fundamental error. Rubi
v. State, 952 So. 2d 630, 633 (Fla. 4th DCA 2007) (“This court has held
that it is fundamental error for the trial court to repeat a deadlock jury
instruction and send a jury back for further deliberations after it has
announced a second deadlock.”).

   An Allen charge, derived from Allen v. United States, 164 U.S. 492
(1896), “is a supplemental instruction generally given when it appears the
jury is having difficulty reaching a verdict.” Roma v. State, 785 So. 2d
1269, 1271 (Fla. 5th DCA 2001). However, “[a] coerced verdict in a
criminal case infringes upon two rights guaranteed by the constitution-the
right to a fair trial and the right to an impartial jury.” Id. Thus, “[i]n giving
an Allen instruction, a trial court must avoid: 1) coercive deadlines; 2)
threats of marathon deliberations; 3) pressure for the surrender of

                                       5
conscientiously held beliefs; and 4) any implication of a false duty to
decide.” Rubi, 952 So. 2d at 633. The propriety of “every Allen charge
issue must be decided upon the particular facts and circumstances
surrounding an individual case.” Thomas v. State, 748 So. 2d 970, 977
(Fla. 1999).

    In Tomlinson v. State, 584 So. 2d 43 (Fla. 4th DCA 1991), this court
adopted a per se rule that a trial court commits reversible error by giving
an Allen charge more than once. Id. at 44-45; see also Thomas, 748 So.
2d at 979 (citing Tomlinson with approval). There, the jury reported that
it was deadlocked after eight hours of deliberation. The trial judge then
read the standard jury instruction on deadlocked juries. 584 So. 2d at 43.
The jury announced for a second time that it could not reach a unanimous
decision. Id. The court sent them home for the evening, but before doing
so, urged them to keep deliberating and to “say a prayer for guidance,”
noting, “It’s not unusual after a trial of this kind to have juries deliberate
one, two, three, four, five, six, seven days.” Id. at 44. After the jurors
reconvened and deliberated, they convicted the defendant. Id.

   In reversing, our court followed the approach used in United States v.
Seawell, 550 F.2d 1159 (9th Cir. 1977), cert. denied, 439 U.S. 991 (1978),
and adopted a “per se rule that giving an Allen charge twice is reversible
error.” Tomlinson, 584 So. 2d at 44-45. Seawell provided the rationale for
the per se rule:

       Ordinarily, the general test of whether a supplemental jury
     instruction is in error is to consider all the circumstances to
     determine if the instruction was coercive. . . . Pragmatic
     considerations weigh against the application of this test when
     an Allen charge is given more than once. A case-by-case
     determination would provide little, if any, guidance for a trial
     judge. Defendants would also face insurmountable difficulties
     in attempting to show prejudice. A single Allen charge, without
     more, stands at the brink of impermissible coercion. We believe
     that the protection of a defendant’s right to an impartial jury
     compels a per se rule.

Seawell, 550 F.2d at 1163 (footnote omitted). This court concluded, “[I]t
was fundamental error for the trial court herein to send the jury back for
deliberations, after it announced a second deadlock, with the instruction
given.” Tomlinson, 583 So. 2d at 45.

    Similarly, in Rubi, after the judge had given the standard Allen charge
in response to jury deadlock, the jury sent out a second note that arguably

                                      6
indicated deadlock. 952 So. 2d at 631-33. On appeal, this court held: “If
the second note that the jury sent out is construed to be a second
announcement of deadlock, then Tomlinson requires reversal. However,
even if the second note does not constitute a second deadlock, the question
still remains whether the circumstances showed a coerced verdict.” Id. at
634. The court ultimately concluded that “not only was the note an
announcement of a second deadlock but the court’s subsequent charge
amounted to coercion” because it “pressured a holdout juror to conform to
the views of his peers.” Id.

    This case is slightly different from the foregoing authority in that the
court gave a modified Allen charge first, and then the full Allen charge.
Nevertheless, we conclude that this still violates the per se rule of
Tomlinson. The first charge constituted a modified Allen charge in
response to a jury indication of deadlock. See Roma, 785 So. 2d at 1272
(directing foreperson to continue deliberations was arguably a modified
Allen charge); Thomas, 748 So. 2d at 978 (where “the jurors informed the
judge they were deadlocked” and “the judge repeatedly asked them to
continue deliberating . . . and urged them to reach a unanimous verdict,”
the “judge’s statements actually constituted a modified Allen instruction”).
Thus, the giving of the second full Allen charge was per se reversible error
under Tomlinson.

    Moreover, we conclude that the timing and the instructions were
coercive in that they “threatened marathon deliberations” and exhorted a
“false duty to decide.” The jury informed the judge of their impasse. The
judge told the jury to keep deliberating until they were “hopelessly
deadlocked.” The jury continued and finally reported that they were
hopelessly deadlocked. Instead of discharging them, the court told them
to return the following week, at which time the judge read them the entire
Allen charge, which told them of their duty to reach a decision if at all
possible and for them to keep deliberating. Having reported that they were
deadlocked twice, the jury could have viewed the court’s additional
instruction as demanding a verdict and imposing “marathon deliberations”
until a verdict was reached.

   This was a case in which the jury could have easily found appellant not
guilty. The entire case was based upon the accusations of S.J.M. There
was no physical evidence of the crime, and substantial evidence
contradicting S.J.M.’s story. To require the jury to continue to deliberate
after twice declaring that they could not reach a unanimous verdict was
coercive.



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    Although we need not address the remaining challenges to the verdict,
we do caution the prosecutor on any retrial that the state’s closing
argument might have been otherwise reversible because of improper
comments. In particular, the prosecutor made statements unsupported
by any evidence to explain away the lack of any physical findings from the
examination of S.J.M. Further, comments implying that it was the jury’s
civic duty to convict were also improper, as well as those comments
invoking sympathy. These should be avoided in any future trial.

   Reversed and remanded for a new trial.

TAYLOR and KLINGENSMITH, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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