         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-0064
                 _____________________________

LEO C. BETTEY JR.,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Clay County.
John H. Skinner, Judge.

                          April 18, 2018


B.L. THOMAS, C.J.

     Appellant appeals the summary denial of his motion for
postconviction relief filed under Florida Rule of Criminal
Procedure 3.850. We affirm the order denying relief for the
reasons discussed below.

     Following a jury trial, Appellant was convicted of four counts
of capital sexual battery on a person under the age of 12 for
specific sexual acts on M.B. and J.B., and was sentenced to
concurrent terms of life in prison. This court affirmed his
convictions and sentences, without opinion. Bettey v. State, 136
So. 3d 1216 (Fla. 1st DCA 2014).
    Appellant filed a postconviction motion arguing that he
should have been tried by twelve jurors instead of six. The trial
court denied the motion, and this court dismissed that appeal. 1

     Appellant next filed a timely motion for postconviction relief
alleging four claims of ineffective assistance of counsel. 2 A claim
of ineffective assistance of counsel is governed by Strickland v.
Washington, 466 U.S. 668, 690 (1984). To prove ineffective
assistance, an appellant must allege 1) the specific acts or
omissions of counsel which fell below a standard of
reasonableness under prevailing professional norms, see id. at
690; and 2) that the appellant’s case was prejudiced by these acts
or omissions such that the outcome of the case would have been
different, see id. at 694. To prove the first prong, “[t]he defendant
must allege specific facts that, when considering the totality of
the circumstances, are not conclusively rebutted by the record
and that demonstrate a deficiency on the part of counsel which is
detrimental to the defendant.” Blackwood v. State, 946 So. 2d
960, 968 (Fla. 2006) (citing LeCroy v. Dugger, 727 So. 2d 236, 239
(Fla. 1998)).      The prejudice prong requires that Appellant
demonstrate a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. Appellant must demonstrate a likelihood of a different result


    1  Although Appellant’s appeal was dismissed following non-
payment of the filing fee or submission of the trial court’s order of
insolvency, such a claim is meritless. See Williams v. Fla., 90
S. Ct. 1893 (1970); State v. Hogan, 451 So. 2d 844 (Fla. 1984).

    2 Appellant’s fourth claim was one of cumulative error. As
we hold Appellant’s claims in grounds one through three were
meritless, as explained below, ground four was meritless as well.
See Morris v. State, 931 So. 2d 821, 837 (Fla. 2006) (denying
claim based on cumulative error where the individual claims
making up the cumulative claim were either procedurally barred
or without merit).



                                 2
which is substantial and not just conceivable.     Harrington v.
Richter, 562 U.S. 86, 112 (2011).

     In ground one, Appellant alleged that counsel was ineffective
for failing to secure a ruling on a motion for a statement of
particulars that sought to narrow the time frame during which
the alleged offenses occurred. The information alleged that the
three offenses against M.B. occurred between April 1, 2010 and
April 10, 2012, while the offense against J.B. was alleged to have
taken place between December 11, 2011 and April 9, 2012.
Appellant alleged that if counsel had secured a ruling on the
motion for a statement of particulars, and had the time frame
shortened in the information, the State would not have been able
to prove that the crimes occurred during that time frame. Thus,
Appellant argues, he would have been entitled to be discharged,
because “[w]hen a bill of particulars narrows the time within
which the crime occurred, and the prosecution fails to show the
defendant committed the offense within that time frame, a
conviction on the charge must be reversed.” Audano v. State, 674
So. 2d 882 (Fla. 2d DCA 1996) (citing State v. Jefferson, 419
So. 2d 330, 331-32 (Fla. 1982)).

     At trial in March 2013, M.B. testified that she was
eight years old and that the abuse started when she was three.
The State also introduced a video of the victims’ interviews with
a Child Protective Team member that occurred on April 12, 2012.
In the interview, M.B. stated that the abuse started when she
was five and continued until shortly before the interview. J.B.
testified at trial that she was six years old, and that the abuse
began when she was five years old; in her interview with the
Child Protective Team member, J.B. stated she was five years old
and she was not sure when the abuse started, but she was
probably four years old.

     Thus, the testimony indicates that the victims could not
provide exact dates, but could only provide how old they were at
the time, therefore, the State would not have been able to
produce a statement of particulars. But contrary to Appellant’s
arguments, this would not have led to an acquittal or dismissal of
the charges, as the State may charge a date range, and need not
specify exact dates if they are not known. See Lightbourne v.

                                3
State, 438 So. 2d 380, 384 (Fla. 1983). The two-year date ranges
alleged by the State were proper. Id. (“[I]t is not necessary that
an indictment or information state the exact date of the offense if
such date is not known.”). Because the State could not narrow
the time frame, and Appellant was not hindered in his ability to
raise a defense, his claim fails. Cf. Dell’Orfano v. State, 616
So. 2d 33 (Fla. 1993) (noting that 27-month time frame is not per
se objectionable in a sexual-battery case). Thus, Appellant
cannot show that he was prejudiced by counsel’s failure to secure
a ruling on his motion for a statement of particulars.

     In ground two, Appellant alleged that counsel was ineffective
for failing to move for a judgment of acquittal, because the State
failed to prove that the crimes occurred during the range of the
dates alleged in the information. This claim is meritless as well.
The evidence was sufficient to show that M.B.’s abuse occurred
between April 1, 2010 (when she would have been five years old)
and April 12, 2012. Further, the evidence indicated the abuse to
J.B. occurred when she was five years old, a period of time
encompassed in the December 11, 2011 to April 2012 date range.

     Finally, even if the State failed to prove the crimes occurred
during the dates alleged, Appellant would not be entitled to
relief. In order to overcome a motion for judgment of acquittal,
the State must put forth evidence of each element of the crime.
See K.S. v. State, 840 So. 2d 1116 (Fla. 1st DCA 2003). The State
was not required to prove that the crime took place on the exact
dates listed in the information, as that is not an element of the
offense. In Tingley v. State, 549 So. 2d 649, 651 (Fla. 1989), the
supreme court held that the date of a sexual offense alleged in
the information does not have to be proven at trial:

    [T]ime is not ordinarily a substantive part of an
    indictment or information and there may be a variance
    between the dates proved at trial and those alleged in
    the indictment or information as long as: (1) the crime
    was committed before the return date of the indictment;
    (2) the crime was committed within the applicable
    statute of limitations; and (3) the defendant has been
    neither surprised nor hampered in preparing his
    defense.

                                4
Here, the crime was committed before Appellant was charged,
and there could be no statute of limitations violation. 3

     Finally, there was no hampering of the defense. Both
victims alleged the acts occurred when they were five years old
and living with Appellant. As such, any motion for judgment of
acquittal based on the failure to prove the date of the crime could
not have been granted.

     In ground three, Appellant argued that counsel was
ineffective for failing to object to the following statements made
by the prosecutor during closing argument, which he contends
(1) bolstered the credibility of the witnesses and (2) demeaned his
defense:

    (a) “It’s not reasonable to believe that they weren’t
    doing anything other than telling you the truth.”
    (b) the CPT interviewer “has no interest in the outcome
    of this case”;
    (c) “the truth is what [the victims] told you happened”;
    (d) “there’s no reasonable reason for these girls to lie”;
    (e) it was painful for both victims to tell the truth;
    (f) the victims’ mother was “telling you the truth”;
    (g) “the truth is what [the victims] told you”;
    (h) the victims’ disclosures could not be “anything other
    than the truth”; and
    (i) the Child Protective Team interviewer “didn’t have
    an interest in this case.”

“Improper prosecutorial ‘vouching’ for the credibility of a witness
occurs ‘where a prosecutor suggests that she has reasons to
believe a witness that were not presented to the jury,’ or, stated
differently, where the prosecutor ‘implicitly refers to information
outside the record.’” Whigham v. State, 97 So. 3d 274, 275 (Fla.
1st DCA 2012) (quoting Jackson v. State, 89 So. 3d 1011, 1018
(Fla. 4th DCA 2012)). However, where the arguments arose in

    3 There is no statute of limitations for capital sexual battery.
See § 775.15(1), Fla. Stat. (2012).

                                 5
the context of explaining why the jury should find the witness
credible based upon the evidence, a prosecutor’s comments that a
State witness was open, honest, and telling the truth were held to
be a valid expression of the prosecutor’s opinion. Jackson, 89
So. 3d at 1018-19.

     Here, nothing in the challenged arguments indicates that the
prosecutor was relying on information outside of the record or
that he had reasons to believe the victims or the victims’ mother
that were not presented to the jury.        The context of the
statements indicate that the prosecutor was arguing why the jury
should find the victims credible.

     As to statement (a), the prosecutor provided three reasons
for his assertion that the victims were credible: they took an
oath, their testimony was very specific regarding the sexual acts
which occurred, and they did not have a reason to lie. As to
statements (b) and (i), the prosecutor stated that the interviewer
did not know the victims or the victims’ family, and thus did not
have any interest in the outcome of the case other than to protect
the children. As to statement (c), the prosecutor alleged that
what the victims said was the truth was based on the evidence.
As to statement (d), the prosecutor was arguing that, contrary to
Appellant’s defense, the victims did not have a motive to lie so
their mother could get Appellant’s house, as they already had
possession of that house. As to statement (e), the State was
making the common-sense observation that it would be easier for
the victims to deny the abuse than to speak in detail of the abuse
with their mother, multiple Department of Children and Families
investigators, the State Attorney’s office, and in front of the jury.
As to statement (f), the prosecutor was arguing that it would
have been easier for the mother to make the allegations than to
have both of her daughters make the allegations.              As to
statement (g), the prosecutor was arguing that the victims were
telling the truth based on the evidence. Thus, all the challenged
statements were fair arguments, based on the evidence as to why
the witnesses should be believed.




                                 6
     As to the State’s alleged demeaning of Appellant’s defense, 4
Appellant objected to the prosecutor’s arguments that: (1) the
testimony about the quitclaim deed is not something the jury has
to consider; (2) Appellant’s defense is not something for the jury
to consider; (3) nothing that defense counsel talked about in her
closing argument mattered; and (4) the only thing that mattered
was the testimony of the victims, not Appellant’s defense. “If
‘improper comments by a prosecutor do not constitute reversible
error, the defendant ‘cannot demonstrate the prejudice requisite
for a successful ineffective assistance of counsel claim’ relating to
counsel’s failure to object to the comments.” Taylor v. State, 120
So. 3d 540, 551 (Fla. 2013) (quoting Lugo v. State, 2 So. 3d 1, 17
(Fla. 2008)).

    To show entitlement to a new trial based upon improper
prosecutorial comments, such comments must

    either deprive the defendant of a fair and impartial
    trial, materially contribute to the conviction, be so
    harmful or fundamentally tainted as to require a new
    trial, or be so inflammatory that they might have
    influenced the jury to reach a more severe verdict than
    that it would have otherwise.

Walls v. State, 926 So. 2d 1156, 1167 (Fla. 2006) (quoting Spencer
v. State, 645 So. 2d 377, 383 (Fla. 1994)). “Wide latitude is
permitted in arguing to a jury. Logical inferences may be drawn,
and counsel is allowed to advance all legitimate arguments.”
Breedlove v. State, 413 So. 2d 1, 8 (Fla. 1982) (citations omitted).

     None of the allegedly objectionable comments were
improperly insulting or demeaning to Appellant’s defense.
Instead, the prosecutor was arguing that the evidence suggested
that Appellant’s defense was not credible. Specifically, Appellant
alleged that the victims fabricated the abuse, because their
mother wanted possession of Appellant’s house, which he had

    4  Appellant alleged that his defense was that the victims’
mother coached the victims into making the allegations in order
to gain possession of his house.

                                 7
signed over to her in a quitclaim deed. However, the challenged
comments were fair argument that Appellant’s defense was not
persuasive, as Appellant signed the quitclaim deed four months
before the victims came forward with the allegations, and the
mother could possess the house without forcing her children to
fabricate and report graphic sexual abuse allegations. The
prosecutor’s statement that nothing Appellant’s attorney talked
about in closing argument mattered, or that only the children’s
testimony should be believed, constituted a valid argument that
Appellant’s defense was not reasonable in light of the evidence.

     Here, two small children testified in graphic detail as to
Appellant’s sexual abuse of them. Even were we to hold that
defense counsel provided deficient representation, which we do
not, we would hold that none of the alleged errors of counsel
prejudiced Appellant, as there is no reasonable probability that
he would have been acquitted. Thus, Appellant has failed to
demonstrate prejudice. Strickland, 466 U.S. at 694.

    AFFIRMED.

WOLF and RAY, JJ., concur.
               _____________________________

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


Leo C. Bettey Jr., pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




                                 8
