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


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


STEPHEN BEROUTY,                             )
                                             )
             Appellant,                      )
v.                                           )        Case No. 2D18-2251
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed November 13, 2019.

Appeal from the Circuit Court Polk County;
Neil A. Roddenbery, Judge.

Howard L. Dimmig, II, Public Defender, and
Richard J. Sanders, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Katherine Coombs Cline,
Assistant Public Defender, Tampa, for
Appellee.


LUCAS, Judge.

             The State charged Stephen Berouty with sexual battery with a deadly

weapon. A jury found Mr. Berouty guilty of the lesser-included offense of sexual battery.

Although the prosecuting attorney made improper remarks during closing statements,

we do not believe those comments constituted fundamental error.
              Mr. Berouty and a young woman we identify in this opinion as C.G. met

outside of a lounge in the early morning hours of June 12, 2003. Both apparently had

been drinking. C.G. testified that she had noticed a man walking on the street and

asked if he needed a ride home. He accepted, they went to a Taco Bell, and then to a

boat ramp on Lake Howard. There, she and the man kissed in her car, as well as on a

nearby picnic bench. At some point, the man tried to put his hands up her shirt. She

pushed his hands away and said "no," but he continued to press himself upon her.

According to C.G., the man then held a knife to her throat and had forcible intercourse

with her against her will. When he had finished, the man fled, and she drove herself to

a friend's house who called the police.

              C.G. was interviewed by law enforcement officers and then taken to a

rape crisis center, where she underwent a medical examination. During the

examination, the examining nurse (who would later testify at trial) identified a one-and-

three quarter inch red mark on C.G.'s neck and recalled that C.G. told her the assailant

had put his knife to her neck. The nurse confirmed that based on her medical training

the wound appeared to be consistent with C.G.'s statement to her. After the medical

examination, though, the investigation into C.G.'s allegations seemed to have stalled.

              Then, in 2016, the Winter Haven Police Department contacted C.G. and

informed her that a DNA sample that had been obtained during her medical examination

had produced a match—Mr. Berouty's semen had been identified from the DNA swab.

The State charged Mr. Berouty and the case proceeded to trial on April 30, 2018. At

trial, C.G. relayed the facts described above, but conceded that she did not remember

much from the night of the incident. She was also cross-examined extensively about




                                           -2-
purported inconsistent statements between her statements, her deposition, and her trial

testimony.

              Mr. Berouty testified in his trial and recalled the events of June 12, 2003,

somewhat differently. According to Mr. Berouty's trial testimony, he first met C.G. inside

the lounge, where they had been drinking and playing games until C.G. offered him a

ride home. He said that they stopped at a convenience store to purchase more alcohol

and then went to a subdivision that was under construction in order to drink. While

there, he testified that C.G. performed oral sex upon him, and then they had consensual

sexual intercourse. Mr. Berouty denied ever carrying a knife, having a knife on his

person that night, or ever holding C.G. at knifepoint.

              Thus, Mr. Berouty's theory of defense was that he and the victim had

engaged in consensual sex. During closing argument, the defense focused on the

victim's credibility, her memory, and the conflict in testimony. The defense also

discussed the lack of any investigation conducted by law enforcement at the time C.G.'s

alleged rape was reported.

              In the State's closing argument, the prosecuting attorney informed the jury

that their job was "to decide whose story is more credible, who are we going to believe,"

and that a conviction is "going to depend on who you believe." Then in rebuttal, the

assistant state attorney made the following comments:

                      Now, a mentor of mine once told me that if you can't
              win an argument with facts, argue the law. If you can't win
              the argument with law, argue the facts. If you can't win with
              either, just argue everything you want. Attack everybody,
              the victim, the police, the investigation, whatever you can get
              your hands on, argue that, and I feel that that's what is
              happening here. I feel like we're in a room and spaghetti is




                                           -3-
              getting thrown over our heads in every which direction
              hoping something will stick.

                    There have been so many deflection tactics that have
              been thrown out here and so many things that were
              addressed that just don't matter. . . .

                             ....

                       Now, maybe if the defendant had still been under the
              defense that he was going with initially, which is, you got the
              wrong guy,1 then all of those things would have been valid. .
              . . Then it would have been completely appropriate to bring
              all of that out, but that's not his defense. So the fact that all
              of that is being brought out here, duck, that's spaghetti flying
              right at you. And it's trying to distract you from the fact that
              here you've got someone whose story just doesn't add up
              with the allegations.

                    Now, are we supposed to think that all of those things
              together are to create reasonable doubt here regarding the
              defendant's guilt, that you should feel reasonable doubt
              because of the absence of [finger]prints or a photograph
              may not have been introduced the right way, I don't know
              how you get there. I just don't know how you get there,
              based on all of those things. It's all just been to me smoke
              and mirrors. . . .

                      ....

                     This is starting to feel a little bit like an abusive
              relationship where the abuser is always shifting the focus
              and trying to put the blame on the victim and everything
              around, right, instead of putting the focus on what matters.

              For whatever reason, no objection was made to any of these remarks.

After the jury's return of a guilty verdict, Mr. Berouty filed a motion for new trial, arguing

that the prosecutor had improperly shifted the burden of persuasion to the defense,




              1This appears to refer to an earlier interview between Mr. Berouty and a
detective in which Mr. Berouty claimed that he had never met a woman of C.G.'s
description in June of 2003.

                                             -4-
misstated the law, and denigrated Mr. Berouty's assertion of a defense. The trial court

denied the motion, and Mr. Berouty now appeals.

              Given defense counsel's failure to contemporaneously object to the

State's comments, we can only review the trial court's denial of Mr. Berouty's motion for

fundamental error. See Randolph v. State, 853 So. 2d 1051, 1068 (Fla. 2003) ("As a

general rule, this Court has determined that failing to raise a contemporaneous

objection when improper closing argument comments are made waives any claim

concerning such comments for appellate review. The sole exception to the general rule

is where the unobjected-to comments rise to the level of fundamental error." (citation

omitted)).

              We are very much troubled by the prosecutor's closing statements in Mr.

Berouty's trial. There can be no doubt that the State's spaghetti-throwing, smoke-and-

mirrors, abusive relationship "arguments" were improper in this criminal prosecution.

See, e.g., Cardona v. State, 185 So. 3d 514, 523 (Fla. 2016) ("The other improper

remarks that pervaded the closing arguments . . . include those in which the prosecutor

denigrated the defense counsel and Cardona herself. The prosecutor did this by

repeatedly accusing the defense of using 'diversionary tactics.' In the same vein, the

prosecutor also warned the jurors that the defense would 'cloud' and 'muddle' the

issues, mocked the defense closing argument as a 'magnificent display . . . a real show'

and suggested that defense counsel was being dishonest." (second omission in

original)); Zack v. State, 911 So. 2d 1190, 1205 (Fla. 2005) ("It is 'unquestionably

improper' for a prosecutor to state that the defendant has lied. This is especially true in

an instance where the defendant takes the stand in his own defense because the




                                            -5-
prosecutor's reference to the defendant as a liar encroaches on the jury's job by

improperly weighing in with his or her own opinion of the credibility of the witnesses."

(quoting Washington v. State, 687 So. 2d 279, 280 (Fla. 2d DCA 1997))); Ruiz v.

State, 743 So. 2d 1, 9 (Fla. 1999) (finding the prosecutor's statement that "if that guy

were Pinocchio, his nose would be so big none of us would be able to fit in this

courtroom" was inappropriate); Crew v. State, 146 So. 3d 101, 109 (Fla. 5th DCA 2014)

("It is improper for a prosecutor to refer to the accused in derogatory terms, in such

manner as to place the character of the accused in issue." (quoting Pacifico v.

State, 642 So. 2d 1178, 1183 (Fla. 1st DCA 1994))); D'Ambrosio v. State, 736 So. 2d

44, 48 (Fla. 5th DCA 1999) ("Repeatedly referring to the defendant's defense as

innuendo, speculation and 'a sea of confusion' that defense counsel 'prays you will get

lost in' is an improper attack of the defense and defense counsel."); Redish v. State,

525 So. 2d 928, 931 (Fla. 1st DCA 1988) ("[W]e consider the prosecution's personal

attack on defense counsel by referring to his 'cheap tricks' to be clearly beyond the

bounds of proper closing argument."). In its answer brief, the State suggests that the

prosecutor's comments "must be considered in their context." We have done so. If

anything, the context of this kind of criminal prosecution should have restrained a

prosecuting attorney from employing the kind of loose bombast she chose to use.

              However, fundamental error is reserved for cases where the cumulative

effect of the improper comments "reach[es] down into the validity of the trial itself to the

extent that a verdict of guilty could not have been obtained without the alleged error."

Johnson v. State, 238 So. 3d 726, 740 (Fla. 2018) (quoting Kilgore v. State, 688 So. 2d

895, 898 (Fla. 1996)). While we cannot condone the comments that this assistant state




                                            -6-
attorney made during closing statements, neither can we conclude that they amounted

to fundamental error. See, e.g., Morris v. State, 233 So. 3d 438, 447-48 (Fla. 2018);

Serrano v. State, 64 So. 3d 93, 111 (Fla. 2011) (holding that prosecutor's calling a

defendant "diabolical" and "a liar" in closing argument was not fundamental error);

Chandler v. State, 702 So. 2d 186, 191 n.5 (Fla. 1997) (prosecutor's comments that the

defendant's counsel engaged in "cowardly" and "despicable" conduct and that the

defendant was "malevolent . . . a brutal rapist and conscienceless murderer" were

improper "but not so prejudicial as to vitiate the entire trial"); Talley v. State, 260 So. 3d

562, 574 (Fla. 3d DCA 2019) (holding that State's closing statement "improperly

suggested to the jury that acquittal was proper only if they found the State's witnesses

to be dishonest" but was not fundamental error); Manor v. State, 250 So. 3d 714, 715-

16 (Fla. 4th DCA 2018) (holding that prosecutor's closing statement improperly

commented on the defendant's right to remain silent but was not fundamentally

erroneous); Augustine v. State, 143 So. 3d 940, 941 (Fla. 4th DCA 2014) (stating that

"[t]he transcript of the state's closing argument reads like a primer for prosecutors

entitled, 'What Not to Say During Closing Argument,' " but was nevertheless insufficient

to demonstrate fundamental error); cf. Rodriguez v. State, 210 So. 3d 750, 754-56 (Fla.

5th DCA 2017) (finding fundamental error where prosecutor's "flood of improper

prosecutorial comments" referred to the defendant as a "pedophile" and a "liar," inserted

a "justice for the victim" argument, made nationalistic appeals, ridiculed the defense

with sarcasm, and repeatedly misstated or misrepresented the evidence at trial, which,

collectively "made a mockery of the constitutional guarantee of a fair trial"). We do not

believe the relatively brief collection of imprudent closing comments that were made




                                             -7-
here vitiated an otherwise capably run criminal trial. See Sampson v. State, 213 So. 3d

1090, 1093 (Fla. 3d DCA 2017) ("Upon our review of the entire closing argument,

including the nature and number of the improper comments, the context in which they

were made, and statements of law accompanying the improper arguments, we cannot

say that these improper comments reached down into the validity of the trial such that a

conviction could not have been obtained in the absence of these errors."), review

denied, SC17-551, 2017 WL 4150355 (Fla. Sept. 19, 2017); Caraballo v. State, 762 So.

2d 542, 547 (Fla. 5th DCA 2000) ("[F]undamental error in closing 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.' " (quoting Silva v. Nightingale, 619 So. 2d 4, 5 (Fla. 5th DCA 1993))).

              We, therefore, affirm the judgment and sentence below.

              Affirmed.



SILBERMAN and MORRIS, JJ., Concur.




                                            -8-
