       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      JASON BRYON NEBERGALL,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-2327

                            [November 6, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No.
502016CF011962A.

  Michael Salnick of Law Offices of Salnick & Fuchs, P.A., West Palm
Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals from his convictions on one count of attempted
sexual battery (victim eighteen years of age or older) while in possession of
a weapon, and one count of simple battery.

   The defendant primarily argues the trial court erred in denying his
motion for mistrial after the alleged victim intentionally violated the trial
court’s clarified order on a motion in limine. The order provided, in
pertinent part, that any testimony regarding law enforcement’s efforts to
identify the DNA found on the alleged victim’s buttocks could only indicate
that such efforts were “inconclusive.” However, during the alleged victim’s
cross-examination, in response to one of defense counsel’s questions not
related to DNA, the alleged victim ended her answer by exclaiming, “You
see the DNA results on me. And now you guys say the DNA’s not on my
butt, but it was on my butt. It was enough -- .”

  We agree with the defendant that the trial court erred in denying his
motion for mistrial. The alleged victim’s comment deprived the defendant
of a fair trial, reasonably may have materially contributed to his conviction,
and was so harmful or fundamentally tainted as to require a new trial. We
also conclude that a curative instruction would not have remedied this
violation. We are compelled to reverse and remand for a new trial.

   We present this opinion in five parts:
   1. The allegations;
   2. The DNA evidence and the defendant’s motion in limine;
   3. The defendant’s motion for mistrial;
   4. The trial court’s denial of the motion for mistrial; and
   5. Our review.

                            1. The Allegations

   a. The State’s Case

    At the time of this incident, the defendant was a sheriff’s deputy. Early
one morning around 5:30 am, he and two other deputies were dispatched
to the alleged victim’s home to investigate an altercation between her and
her landlord. The altercation had been investigated by other deputies
earlier in the night.

   The defendant and the other two deputies arrived at the alleged victim’s
home in separate vehicles. By the time they arrived, the landlord had left
the scene. The alleged victim was standing outside. The defendant
introduced himself by his first name, and then spoke to her away from the
other deputies. She told the defendant that her landlord kept coming to
her home and threatening her.

   The defendant told the alleged victim that he was not trying to downplay
her story, but he did not intend to write a report because his shift was
ending. He offered to come back and check on her another time. She
responded that would be okay. The defendant and the other deputies then
drove away in separate vehicles.

   Just minutes later, the defendant returned to the alleged victim’s home.
The defendant did not notify the other two deputies or dispatch that he
was doing so. When the defendant, still in uniform, got to the alleged
victim’s home, he knocked on the door, and identified himself as “PBSO.”
The alleged victim came outside.

    What allegedly happened next became the subject of the charges and
trial.


                                   2
   The alleged victim testified in pertinent part as follows. When she came
outside, the defendant said, “I told you I was gonna come back and check
on you.” The defendant then grabbed her by the hair and kissed her on
the mouth. He said, “Too much light here,” and led her around to the back
of her home. When they got around back, he said, “I had to come back
and check on these big a** t******.” He pulled up her top, and sucked on
her left breast. Then he started kissing the left side of her neck. He said
“[H]ave you ever had white c***? Do you like it in your a**?” She did not
respond. He put his hand down her shorts, and touched her vagina. He
grabbed her right hand, unzipped his pants, pulled out his penis, and said
“touch it,” but she did not. He told her to “give me h***,” but she said no.
He turned her around, pulled down her shorts, and rubbed his penis on
her buttocks. He tried to penetrate his penis between her buttocks, but
he said, “I can’t do this. I don’t have a condom.” He then said, “I’ll be
back. I’ll check on you,” and left her home.

   The alleged victim went back inside her home and notified her
roommates. She called the sheriff’s office to get the defendant’s last name
and badge number. She did not immediately report the incident itself to
the sheriff’s office, but did so later that day at the urging of her roommates
and family. When she reported the incident, she initially would not provide
her name because she feared for her safety.

   The alleged victim was directed to a hospital’s sexual assault treatment
center, where DNA samples were taken from her right hand fingernails,
the upper and lower areas between her buttocks, the left side of her neck,
and her left breast at the nipple and areola. A DNA sample was not taken
from the alleged victim’s vagina because she informed the treating nurse
that she had not been vaginally penetrated.

   The alleged victim ultimately identified herself and provided statements
to the treating nurse, and to sheriff’s office detectives from the sexual
assault division who were sent to the hospital to investigate.

   The next day, the detectives pulled the GPS records of the defendant’s
location from the previous night. The GPS records showed that when the
defendant returned to the alleged victim’s home by himself, he had
remained at the home for approximately eleven minutes. The detectives
also obtained a search warrant for the defendant’s DNA and uniform.

   The detectives went to the defendant’s neighborhood to interview him
about the incident. One of the detectives took the lead. That detective
read the defendant his Miranda rights. The defendant responded that he


                                   3
understood his rights. He then stated he did not know what was going on,
but he agreed to be interviewed.

    The detective asked the defendant what occurred when he responded
to the alleged victim’s home. The defendant said that he and two other
deputies were dispatched to the alleged victim’s home to investigate the
earlier altercation between the alleged victim and her landlord. The alleged
victim did not want her landlord to come back to her home. She described
her landlord’s vehicle. The defendant told the alleged victim to change the
lock on her home, and if her landlord came back, to call the sheriff’s office.
The defendant and the other deputies then left. The defendant told the
detective that as he was leaving the neighborhood, he saw a vehicle fitting
the description of the landlord’s vehicle turn into the neighborhood. The
defendant turned around and drove back by the alleged victim’s home, but
the vehicle he saw was not in the area. The defendant first told the
detective that the alleged victim was standing outside of her home. The
defendant then told the detective that he knocked on the alleged victim’s
door. The defendant said he asked the alleged victim if her landlord had
come back. The alleged victim said no. The defendant said he then talked
to the alleged victim for a couple minutes, and then he left. The detective
asked the defendant, “Did you touch her at all?” The defendant responded
“No.” The detective then asked, “Did she touch you?” The defendant again
responded “No.” The interview then ended.

   The detectives obtained DNA samples from the defendant. After
obtaining test results comparing the DNA profiles from the alleged victim’s
body to the defendant’s DNA profile (discussed further below), the
detectives arrested the defendant.

    The state ultimately charged the defendant with three counts: (1)
attempted sexual battery (victim eighteen years of age or older) while in
possession of a weapon, for the defendant’s penis having union with the
alleged victim’s anus or vagina; (2) simple battery for touching her vagina;
and (3) simple battery for touching her breasts.

   At trial, the alleged victim and the detectives testified consistently with
the summaries provided above.

   b. The Defendant’s Testimony

   The defendant chose to testify at trial, and testified as follows. After he
returned to the alleged victim’s home, he knocked on her door, and
identified himself as a sheriff’s deputy. The alleged victim opened the door
and came outside. The defendant told her he had come back because, as

                                   4
he was leaving the neighborhood, he had seen a vehicle fitting the
description of the landlord’s vehicle entering the neighborhood. The
defendant asked the alleged victim if she had any further issues or if
anybody came back in the time since he and the other deputies left her
home. She said no. The defendant again told her to change the lock on
her home, and that if she had any further issues, to contact the sheriff’s
office. At that point, the alleged victim asked, “Would you like to pat me
down?”, which he thought was strange. The defendant told her no, and to
have a good night. The alleged victim then pulled up her top to her neck,
exposing both breasts, and asked “Are you sure you don’t want to pat me
down for weapons?” The defendant was shocked. He told her no again
and turned to walk back to his vehicle. Then he felt a nudge on his right
forearm. He immediately turned around and saw her with her top still
pulled up with both breasts exposed as she leaned into him. The
defendant put his hands up immediately and pushed her back, touching
one of her breasts in the process. He got in his vehicle and went home.

    The defendant testified he did not notify a supervisor about the
incident, and did not write a report about the incident. When defense
counsel asked why not, the defendant said, “I was just trying to minimize
the situation. I wasn’t trying to escalate it to any level or cause any kind
of further embarrassment to [the alleged victim]. And it really was a non-
issue for me at the time.”

   When defense counsel asked the defendant why he responded “No” to
the detective’s question, “Did you touch her?”, the defendant said, “I knew
[the detective was in the sexual assault division]. And the way I interpreted
his question with the type of investigation he was doing, I interpreted it as
he was asking me if I touched her with any kind of sexual motivation. And
my answer was clearly no then and no today.”

    When defense counsel asked the defendant why he responded “No” to
the detective’s question, “Did [the alleged victim] touch you?”, the
defendant said, “I interpreted the question the same way, as did [she] try
to touch me in a sexual way or sexual manner. And she did not.”

   When defense counsel asked the defendant why he did not tell the
detective that the alleged victim exposed herself to him, he said, “Still at
the time, it was -- it was -- in my mind at the time, it was a minor issue.
And I -- it was a minor issue at the time.”

   The defendant denied all other actions to which the alleged victim
testified.


                                  5
    2. The DNA Evidence and the Defendant’s Motion in Limine

   Two sheriff’s office forensic scientists analyzed the samples taken from
the alleged victim. One scientist analyzed for autosomal DNA, which is
the combined DNA from both an individual’s mother and father. The other
scientist analyzed for Y-STR DNA, which looks only at the male DNA
present.

   On the sample taken from the alleged victim’s right hand fingernails,
the autosomal DNA indicated the presence of three individuals. The major
profile was determined to be consistent with the alleged victim’s DNA
profile. No comparisons were done for the minor contributors of this
sample. No Y-STR analysis was done.

   On the sample taken from the upper area between the alleged victim’s
buttocks, the autosomal DNA indicated the presence of three individuals.
The major profile was determined to be consistent with the alleged victim’s
DNA profile. No comparisons were done for the minor contributors of this
sample. No Y-STR analysis was done.

    On the sample taken from the lower area between the alleged victim’s
buttocks, the autosomal DNA indicated the presence of at least two
individuals. The major profile was determined to be consistent with the
alleged victim’s DNA profile. No comparisons were done for the minor
contributors of this sample. The Y-STR DNA indicated the presence of
three males. No conclusions were made from the Y-STR DNA because the
mixture was too complex.

   On the sample taken from the left side of the alleged victim’s neck, the
autosomal DNA indicated the presence of at least four individuals. The
major profile was determined to be consistent with the alleged victim’s DNA
profile. No comparisons were done for the minor contributors of this
sample. The Y-STR DNA indicated the presence of at least five males. No
conclusions were made from the Y-STR DNA because the mixture was too
complex.

   On the sample taken from the alleged victim’s left breast, the autosomal
DNA indicated the presence of at least four individuals. The entire profile
was deemed inconclusive for comparison to anyone because no major
profile was detected. The Y-STR DNA indicated the presence of three
males. The major profile was determined to be consistent with the
defendant’s DNA profile. No comparisons were done for the two minor
contributors.


                                 6
   Based on the DNA testing results, the defendant filed a pre-trial motion
in limine seeking to exclude any testimony that the defendant could not
be excluded as a contributor to any DNA profile “found on any item of
evidence introduced in this cause, unless it is accompanied by a statistical
weight.” That motion referred only to the DNA found on the alleged victim’s
buttocks.

   The state agreed to the defendant’s motion in limine, and the trial court
entered an agreed order granting that motion.

    The defendant later filed a motion for clarification relating to the agreed
order. According to the motion, the state had expressed the belief that it
still could elicit testimony that this particular DNA analysis was
“inconclusive,” whereas defense counsel believed such testimony was
excluded unless the defendant opened the door to such testimony.

   The trial court granted the motion for clarification, and entered an order
providing, in pertinent part:

         A review of the Motion in Limine indicates Defense was
      requesting that [the DNA analysts] not be allowed to testify
      that the “pattern obtained from [the defendant] cannot be
      excluded” to the pattern from evidence. The Court would have
      sustained this objection as the statement implies that the
      [defendant’s] pattern may have been “included” in the pattern
      from the evidence without any statistical support.

         However, the Court would allow that the analysis was
      inconclusive, as that seems to be an accurate statement.

   The trial proceeded one month later. The two sheriff’s office forensic
scientists testified consistently with their analyses above.

                3. The Defendant’s Motion for Mistrial

    During defense counsel’s cross-examination of the alleged victim, the
alleged victim violated the trial court’s clarified order on the motion in
limine when she was asked about an entirely separate topic, that is, why
she initially would not provide her name to law enforcement:

      [DEFENSE COUNSEL]: [The officer to whom the alleged victim
      reported the incident] said he asked you your name at least
      ten times and you wouldn’t give it to him; is that correct?


                                   7
      [ALLEGED VICTIM]: Correct. I was in fear. Didn’t want my
      name to be out.

      [DEFENSE COUNSEL]: Okay. And you didn’t bother to tell
      [the officer] that you had the full name of the [defendant]? You
      just used examples; is that right?

      [ALLEGED VICTIM]: Correct, I didn’t want -- I wanted [the
      defendant] to be in trouble, but I wanted to make sure that
      [the officer] wasn’t [the defendant’s] friend, that they couldn’t
      come kill me. I was scared. So I didn’t want to give out no
      information, my information or [the defendant’s] information.
      I wanted to go to the top, wherever, the lieutenant. I just
      wanted them to take the DNA off me. I still didn’t want to give
      my name at all. I still today, I didn’t want to be here. I just
      wanted [the defendant] to get in trouble for what he did. You
      see the DNA results on me. And now you guys say the
      DNA’s not on my butt, but it was on my butt. It was
      enough --

(emphasis added).

    At that point, defense counsel objected and asked to approach the
bench. The trial court directed the alleged victim and the jury to step out
of the courtroom. The following discussion then occurred:

      [DEFENSE COUNSEL #1]:           Judge, I’m going to move for a
      mistrial.

      THE COURT: Okay.

      [DEFENSE COUNSEL #1]: There was absolutely no reason in
      the world for [the alleged victim] to say that there was DNA on
      her butt. We had a motion in limine and the parties were
      instructed . . . [The alleged victim] has read the DNA reports,
      which is her prerogative. I’ve got no problem with that. But
      that was an intentional effort on [the alleged victim’s] part to
      get in evidence that is inadmissible. I certainly am not
      blaming [the state]. But they’re stuck with what their witness
      says.    And it’s an absolute manifest injustice done
      intentionally. And there’s no way to cure that.

      ....


                                  8
THE COURT: . . . I don’t think that it was done intentionally.
I mean, did [the state] tell her she was not allowed to mention
anything about DNA on her butt?

[STATE]: She knows that the DNA on her butt is not
coming into evidence.

THE COURT: Okay. So then why would she say that, just
out of curiosity?

[STATE]: I don’t know why she would say that.

THE COURT: Okay.

[STATE]: I can’t answer for her. What I would say is that she
-- what I -- I don’t think that she testified to what was -- that
she said “DNA was taken off my butt.” But I’m going to -- but
the State is going to say is that there isn’t any evidence that
DNA was swabbed from her butt. There’s no evidence right
now that’s on the record that is positive that [the defendant’s
DNA] was on her butt . . . So right now, she has not testified
as an expert witness saying that --

THE COURT: Saying that they were the defendant’s, okay.

[STATE]: -- the defendant’s DNA was positive on her butt. So
it’s the State’s position that this is not equal or equivalent to
a mistrial. That it’s not a violation of a motion in limine. It
was cut off right away. She didn’t get into it. She’s not
testifying as an expert to what was found. And I am going to
-- and we can bring her in and -- I don’t want to even address
it with her . . . .

THE COURT: Let me ask this. Was DNA -- did you do DNA
analysis and her DNA showed -- but she made it sound like
it was his DNA. I’m not going to -- I mean, let’s -- I
understand it didn’t come out and we may be able to -- I don’t
know that it rises to a level of mistrial, but --

[STATE]: I would say that I would ask that a curative
instruction to be given that the witness -- that there is no --




                            9
THE COURT: Okay, hold on. Let’s take it in steps. I want
everybody to calm down. I think [defense counsel #2] has
something to say. So let me hear from him.

....

[DEFENSE COUNSEL #2]: If you hear what [the alleged
victim] said before that . . . it’s specifically telling the jury that
there was evidence excluded that she’s not supposed to say.
And that even more makes it sound that it is [the defendant’s]
DNA.

....

THE COURT: Yeah, I think -- and that’s why I just jotted down
the time. . . . So a curative instruction, you’re not requesting?
You’re asking -- I just want to make sure.

[DEFENSE COUNSEL #1]: A curative instruction here would
. . . re-ring the bell.

....

THE COURT: Okay. So based on the fact that you don’t want
a curative, I’m going to take the motion for mistrial under
advisement. We’re going to continue. I will do a playback
because it happened so fast, that I don’t want to sit here and
tell you I don’t remember exactly what she said and how she
said it. I know that it was concerning. I know that we
were keeping that out. I want to listen to exactly what she
said. So I’m going to take the motion for mistrial under
advisement. I will do a playback in front of everyone when we
have time so that we can all hear it again and digest it. And
since there’s no curative being requested --

....

[DEFENSE COUNSEL #1]: No, a curative here is not going to
undo the taint that has been done.

....

[STATE]: And I don’t want to misrepresent to the Court. Her
and I have never discussed DNA. I mean, who would talk to

                              10
their victim about DNA? I mean, I talk to the DNA people
about what they’re not allowed to do. But I never specific -- I
don’t want to misrepresent that I sat her down and said “We’re
not going to talk about the DNA on your butt” because I didn’t
think anything was going to be elicited in testimony --

THE COURT: Okay. I’m not really finding that -- right
now that it was intentional. I don’t -- unless you told her
“We’re not getting into DNA. You’re not allowed to talk
about DNA” --

[STATE]: In a conversation that happened this morning,
she emailed me and said “I know that there’s no” -- I don’t
know how she knows this because I didn’t -- maybe her
and I did talk about it and I just don’t remember. She
said “I know we’re not allowed to get into DNA.” And I
said “We’re not talking about that in this trial and I can’t
talk to you because you’re in the middle of your cross-
examination.”

....

[DEFENSE COUNSEL #1]: My only concern is because [the
state] didn’t discuss DNA with her and she obviously admitted
that she’s read the DNA reports --

THE COURT: Yes.

[DEFENSE COUNSEL #1]:         -- that was an intentional
comment. It even makes it stronger.

THE COURT: Okay. I don’t need to -- we don’t need to address
this right now, okay?

[DEFENSE COUNSEL #1]: Okay.

THE COURT: I want to bring in the [alleged victim].

....

THE COURT [addressing the alleged victim]: . . . I know
that you’ve heard the objection. I’m sustaining that
objection. You are not to talk about or discuss anything
with DNA. That’s not your purpose here. There are witnesses

                           11
      that would have discussed that and will discuss that. And
      that’s the State’s opportunity to present that evidence or not,
      in accordance with the rulings. You talking about DNA is
      not appropriate. So I’m instructing you now no more talk
      about DNA; just about what happened to you that day, okay?
      And then I’m going to have to handle a different motion in a
      little while.

(emphasis added).

    At a recess later that day and outside of the alleged victim’s and the
jury’s presence, the trial court had court staff replay the audio recording
of the alleged victim’s statement three times so the parties could take note
of the exact words which the alleged victim used during her comment.

   After the state rested at the end of the day, the trial court resumed
argument on the defendant’s motion for mistrial. Defense counsel, after
referring to the alleged victim’s statements about the DNA on her buttocks,
argued, in pertinent part:

         [W]e . . . know from her testimony that she read the DNA
      report, okay? So she has more information than the jury has.
      So she’s referring to obviously things that are not in evidence.
      And she is saying things that are in that report. “You see the
      DNA results,” which again the jury doesn’t have.

          And the next statement “And now you guys say DNA not
      on my butt,” . . . and then the next one, “But there was DNA
      on my butt.” It’s illogical and defies common sense to
      think that she’s talking about someone else’s DNA on her.
      . . . She’s not talking about a third person. She’s only
      talking about the defendant . . . .

         And her statement in essence then gives the jury or tells
      the jury that there’s even more -- it sounds like there’s more
      proof than . . . there is. And so that’s why I think that a
      mistrial is warranted in this case.

         ....

         A motion in limine is so you don’t have to stand up and
      object. So you don’t have -- the jury doesn’t have to think that
      you’re trying to hide evidence.


                                 12
         And that’s exactly what we have here in this case now.
      After she blurts something out that was specifically excluded
      and the way it came out makes it sounds like she’s only
      talking about [the defendant’s] DNA. It makes it sound
      that there is evidence that [the jury is] not getting. And
      that someone is hiding evidence. And that’s the exact
      reason why motions in limine are granted.

         And just to read [from Fischman v. Suen, 672 So. 2d 644,
      645 (Fla. 4th DCA 1996)], “Being human, jurors typically want
      to hear all the evidence pertaining to the case. By using a
      motion in limine, a prudent lawyer can avoid giving the jury
      the impression that he is concealing something crucial.”

         And again, we did that in this case. The Court granted it.
      And not responsive to any question, she blurts out those
      statements.

         And I would also argue that by doing that, it was -- by that
      statement, she knew that there was a motion in limine
      because of the statement “You’re trying” -- you know, “Now
      you guys say there’s not DNA.” So she knew about the
      motion in limine. She knew the Court’s ruling. I would
      say that that was an intentional statement that she
      made and intentionally brought evidence that shouldn’t
      have been in front of this jury to the jury that they
      weren’t supposed to hear. Again, to think that it’s
      someone else’s DNA just is illogical.

(emphasis added).

   The state responded that the alleged victim’s statement did not rise to
the level of declaring a mistrial. The state argued, in pertinent part:

         [The alleged victim] never specifically said that the DNA
      was the defendant’s DNA that was found on her buttocks. In
      fact, I know defense . . . wants to say that it was intentional.

         I would point out that [the alleged witness] is a lay person.
      There was a DNA expert that testified. [The DNA expert]
      testified that there was, in fact, a DNA profile that was found
      on her butt and that it was inconclusive.



                                 13
         So we have a lay person who did make that statement. I’m
      not saying that it was correct. She was in error for making
      the statement, but what her understanding of it would be.

         And I would submit to the Court that she doesn’t have a
      grasp.

        4. The Trial Court’s Denial of the Motion for Mistrial

   Following the parties’ arguments, the trial court announced it was
denying the defendant’s motion for mistrial. The trial court reasoned, in
pertinent part:

          I’m relying on Gosciminski v. State, 132 So. 3d 678 [(Fla.
      2013)], where it just really outlines what the court needs to do
      when considering a motion for mistrial. It does point out there
      that the power to declare a mistrial should be exercised with
      great care and caution and should be done only in the cases
      of absolute necessity.

         I find that the non-responsive statement of “Now you guys
      say DNA not on my butt. It was on my butt” was harmless as
      the statement did not say or attribute the DNA to the
      defendant. That testimony was -- actually came out through
      [the DNA experts] who indicated that DNA was actually
      present on her buttocks. They could not identify who it came
      to. There was at least three individuals.

          That case Gosciminski v. State also outlines that “A new
      trial is only merited when one, the comments must either
      deprive a defendant of a fair and impartial trial.”

          I find that [the comments] don’t do that because the
      comment was put into context by the expert testimony
      indicating that DNA found on her buttocks was inconclusive.
      It corroborates her statement when she says “DNA was on my
      butt.”

         And two, another [consideration from Gosciminski] would
      be “whether or not it materially contributes to the conviction.”
      We don’t even know that there’s a conviction. But I don’t know
      how it would as the comment was explained by DNA analysis
      to say it’s inconclusive. It does say it was there, but that it
      was inconclusive.

                                 14
         I don’t find it to be so harmful or fundamentally tainted as
      to require a new trial, meaning that statement, that it
      fundamentally tainted or requires a new trial.

         And I don’t find that it was so inflammatory that it might
      have influenced the jury to reach a more severe verdict as I
      believe the expert testimony on DNA would explain how that
      DNA got there.

         So I find that the statement does not vitiate the entire
      process. And based on the case law, I will deny the motion for
      mistrial.

          Okay. And also for the intentional aspect of it, I didn’t find
      that that was intentional. For the record, I just want to point
      out how long she was on the stand. And at any other time, I
      did not find that she was trying to interject things or interpose
      her feelings into those. I believe that she said those things out
      of frustration. I don’t find that it was intentional.

         It’s still a violation and she should not have done it; I’m not
      saying she should have done it. I just don’t believe that the
      evidence would justify me finding that it was intentional.

   The jury found the defendant guilty of attempted sexual battery (victim
eighteen years of age or older) while in possession of a weapon, and simple
battery for touching the alleged victim’s breasts. The jury found the
defendant not guilty of simple battery for touching the alleged victim’s
vagina.

   The defendant moved for a new trial on several grounds. The primary
ground was that the trial court erred in denying his motion for mistrial
when the alleged victim intentionally violated the trial court’s clarified
order on the motion in limine by testifying about the DNA on her buttocks.

  The trial court entered an order summarily denying the defendant’s
motion for new trial. This appeal followed.




                                  15
                               5. Our Review

    “A trial court’s denial of a motion for mistrial is reviewed by an abuse
of discretion standard. Discretion is abused only when the judicial action
is arbitrary, fanciful, or unreasonable, which is another way of saying that
discretion is abused only where no reasonable [person] would take the view
adopted by the trial court.” Gosciminski v. State, 132 So. 3d 678, 695 (Fla.
2013) (citations and internal quotation marks omitted).

   In Gosciminski, the Florida Supreme Court set forth the standards for
review of a motion for mistrial on the basis of improper witness testimony:

      The granting of a motion for mistrial is not based on whether
      the error is prejudicial. Rather, the standard requires that a
      mistrial be granted only when an error is so prejudicial as to
      vitiate the entire trial, such that a mistrial is necessary to
      ensure that the defendant receives a fair trial. It has been long
      established and continuously adhered to that the power to
      declare a mistrial and discharge the jury should be exercised
      with great care and caution and should be done only in cases
      of absolute necessity. Therefore, in order . . . to merit a new
      trial, the 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.

Id. at 695-96 (emphasis added; internal quotation marks, citations, and
brackets omitted).

   Here, we conclude the defendant’s motion for mistrial met the first three
reasons in combination with each other, meriting a new trial. We address
each in turn.

   a. The alleged victim’s comment deprived the defendant of a fair
      trial.

   Defense counsel took every effort necessary, by filing the motion in
limine and motion for clarification, to exclude any testimony implying that
the defendant’s DNA was on the alleged victim’s buttocks, because no
statistical evidence existed to support such testimony. The defendant
obtained two favorable orders on those motions, with the latter clarified
order ultimately providing that any testimony regarding law enforcement’s


                                  16
efforts to identify the DNA found on the alleged victim’s buttocks could
only indicate that such efforts were “inconclusive.”

    Despite those successful efforts, the alleged victim commented about
the DNA on her buttocks during her testimony, even though that subject
was not responsive to defense counsel’s question at that moment. That is,
when defense counsel asked her why she did not initially give her name to
law enforcement, she instead exclaimed, “You see the DNA results on me.
And now you guys say the DNA’s not on my butt, but it was on my butt.
It was enough -- .”

   No ambiguity or confusion existed that the alleged victim was referring
to the defendant’s DNA being on her buttocks. The trial court’s first
impression in the immediate aftermath of the comment was correct: “[S]he
made it sound like it was his DNA.”

   Only later in the day, after the trial court had the comment’s audio
recording replayed three times for itself and the attorneys, did the trial
court change its impression to find that “the statement did not say or
attribute the DNA to the defendant.” The jury did not have the benefit of
any replay, much less three replays. Instead, the jury likely was left with
the same first impression which the trial court expressed earlier in the
day: “[S]he made it sound like it was his DNA.”

   Given that impression, the alleged victim’s comment deprived the
defendant of a fair trial because, as explained in the next subsection, the
comment reasonably may have materially contributed to the defendant’s
conviction.

   b. Based on the jury’s verdict, we cannot say beyond a reasonable
      doubt that the alleged victim’s comment did not materially
      contribute to the defendant’s conviction.

   Because interviewing the jury is not an option, it is somewhat
challenging to determine whether the alleged victim’s comment materially
contributed to the defendant’s conviction.

   However, we can consider the jury’s verdict. More specifically, we can
consider the jury’s verdict in context, that is, by the chronological
sequence in which the defendant allegedly committed the crimes during
this incident.




                                 17
   On the first crime which the defendant allegedly committed, simple
battery for touching the alleged victim’s breasts, the jury convicted the
defendant.

   On the second crime which the defendant allegedly committed, simple
battery for touching the alleged victim’s vagina, the jury acquitted the
defendant.

   And on the third crime which the defendant allegedly committed,
attempted sexual battery for his penis having union with her anus or
vagina, the jury convicted the defendant.

   This verdict begs a question. If the jury found the alleged victim’s
testimony credible from start to finish, why would the jury have convicted
the defendant of only the first and third crimes which occurred, but
acquitted him of the second crime which allegedly occurred in between?

   We must acknowledge a reasonably possible answer – because no DNA
sample from the alleged victim’s vagina was taken or analyzed. Thus
perhaps not providing the jurors with sufficient evidence for them to
convict the defendant of the second crime beyond a reasonable doubt.

   Which begs another question. The sheriff’s office’s forensic scientists’
testimony regarding the alleged victim’s buttocks was, to use the trial
court’s term, “inconclusive,” in that (1) the autosomal DNA indicated the
presence of at least two individuals on the lower area and three individuals
on the upper area, and (2) the Y-STR DNA indicated the presence of three
males, with no conclusions made because the mixture was too complex.
Given that “inconclusive” testimony, why would the jury not have also
acquitted the defendant of the attempted sexual battery charge, just as the
jury acquitted the defendant of the simple battery charge for which DNA
evidence was lacking?

    We again must acknowledge a reasonably possible answer – the jury
was influenced by the alleged victim’s comment which “made it sound like
it was his DNA” on her buttocks.

   Based on the foregoing reasoning, we cannot say beyond a reasonable
doubt that the alleged victim’s comment did not materially contribute to
the defendant’s conviction. Cf. McClain v. State, 516 So. 2d 53, 55 (Fla.
2d DCA 1987) (“There were no eyewitnesses to the alleged incident other
than the alleged victim. The jury’s verdict basically distilled down to
whether they believed the [alleged victim’s] version of the events that
transpired, or appellant’s version. Given the quantity and quality of the

                                 18
evidence before the jury, we cannot say beyond a reasonable doubt that
the [alleged victim’s] statement did not affect the verdict.”).

   c. The alleged victim’s comment was so harmful or fundamentally
      tainted as to require a new trial.

  For this discussion, we must focus on the alleged victim’s state of mind
and knowledge when she made the comment implying that the defendant’s
DNA was on her buttocks.

   The trial court found that the alleged victim’s comment was “not
intentional.” But the trial court’s use of the words “not intentional”
appears to have been a misnomer. The alleged victim exclaimed, “You see
the DNA results on me. And now you guys say the DNA’s not on my butt,
but it was on my butt. It was enough -- .” In that moment, the alleged
victim “intended” to make that statement.

   Perhaps a more accurate description of what the trial court was trying
to articulate about the alleged victim’s state of mind was that the alleged
victim simply blurted out her comment in a moment of frustration during
a thorough and lengthy cross-examination, and had not planned in
advance to interject her comment. As the transcript shows, the trial court
had prefaced its finding by stating, “I did not find that she was trying to
interject things or interpose her feelings into those. I believe that she said
those things out of frustration.”

    While the trial court’s prefatory observation may have been accurate,
the trial court may have overlooked a more important point. Regardless
of whether the alleged victim made the comment out of frustration, she
knew on the very morning of her cross-examination that she was not
allowed to testify the defendant’s DNA was on her buttocks. As was
discussed immediately after the defendant moved for a mistrial:

      THE COURT: . . . I don’t think that it was done intentionally.
      I mean, did [the state] tell her she was not allowed to mention
      anything about DNA on her butt?

      [STATE]: She knows that the DNA on her butt is not
      coming into evidence.

      THE COURT: Okay. So then why would she say that, just out
      of curiosity?

      [STATE]: I don’t know why she would say that.

                                  19
   A few minutes later, the state more fully explained how the alleged
victim knew that she was “not allowed to get into DNA”:

      THE COURT: Okay. I’m not really finding that right now that
      it was intentional. I don’t -- unless you told her “We’re not
      getting into DNA. You’re not allowed to talk about DNA” --

      [STATE]: In a conversation that happened this morning,
      she emailed me and said “I know that there’s no” -- I don’t
      know how she knows this because I didn’t -- maybe her
      and I did talk about it and I just don’t remember. She
      said “I know we’re not allowed to get into DNA.” And I
      said “We’re not talking about that in this trial and I can’t
      talk to you because you’re in the middle of your cross-
      examination.”

    Thus, not only did the alleged victim apparently know about the trial
court’s clarified order on the motion in limine, but the ruling was also fresh
in the alleged victim’s mind from earlier that morning.

   The alleged victim’s inability to hold back her comment, though
perhaps emotionally understandable as the trial court found, nevertheless
was a knowing violation of the trial court’s unequivocal clarified order on
the motion in limine.     As explained above, that knowing violation
reasonably may have materially contributed to the defendant’s conviction.

   d. A curative instruction would not have remedied this violation.

   The state argues that even if the jury could have drawn an improper
inference from the alleged victim’s comment, this violation may have been
remedied by a curative instruction, which the trial court offered, but the
defendant declined. By declining a curative instruction, the state argues,
the defendant waived any error in denying the motion for mistrial.

  We disagree. As the Florida Supreme Court stated in Spencer v. State,
645 So. 3d 377 (Fla. 1994):

      In some circumstances, defense counsel may determine that
      a curative instruction would place undue emphasis on the
      issue and thus could actually cause more harm than the
      original improper comment.       Defense counsel may also
      conclude that a curative instruction would not cure the error
      and thus is not necessary. Thus, a defendant need not

                                  20
      request a curative instruction in order to preserve an improper
      comment issue for appeal. The issue is preserved if the
      defendant makes a timely specific objection and moves for a
      mistrial.

Id. at 383 (emphasis added); see also Breedlove v. State, 413 So. 2d 1, 7
(Fla. 1982) (“Improper remarks can be cured by ordering the jury to ignore
them unless they are so objectionable that such instruction would be
unavailing.”) (emphasis added).

    Here, we agree with the defendant that the trial court’s offer of a
curative instruction would have been unavailing in attempting to remedy
this violation. The clear implication from the alleged victim’s comment,
that the defendant’s DNA was on the alleged victim’s buttocks, struck at
the heart of the defense’s claim that the defendant never touched any part
of the alleged victim’s buttocks.

   In support of our conclusion, we rely on three other cases, Fischman v.
Suen, 672 So. 2d 644 (Fla. 4th DCA 1996), Orvis v. Caulkins Indiantown
Citrus Co., 861 So. 2d 1181 (Fla. 4th DCA 2003), and Howard v. State, 950
So. 2d 1260 (Fla. 5th DCA 2007).

   In Fischman, two doctors formerly working together in a medical
practice sued each other for damages. 672 So. 2d at 645. Before trial, the
senior doctor moved in limine to preclude the junior doctor from
mentioning anything about Medicare fraud. Id. The trial court granted
the motion. Id. At the jury trial, the junior doctor, explaining why he left
the practice, listed several reasons and ended with the statement that he
was “very uncomfortable because [the senior doctor] told me basically to
commit [M]edicare fraud.” Id. (emphasis added). The senior doctor timely
objected. Id. The trial court instructed the jury to disregard everything
about Medicare fraud and denied the senior doctor’s motion for mistrial,
though acknowledging that the issue was close. Id. The jury returned a
verdict in the junior doctor’s favor. Id. The senior doctor appealed. Id.

    We reversed. In reaching our decision, we observed that a motion in
limine is especially appropriate when “addressed to evidence which will be
highly prejudicial to the moving party and which . . . would be unlikely to
be disregarded by the jury despite an instruction by the court to do so.”
Id. at 645 (citation omitted). We further observed:

      Obtaining a pretrial order conserves the jury’s time and serves
      as a firm warning to a party not to take the first step toward
      mistrial or reversal. A practical advantage of a motion in

                                 21
      limine is not having to object in the jury’s presence to evidence
      which is logically relevant but legally inadmissible. Being
      human, jurors typically want to hear all the evidence
      pertaining to a case. By using a motion in limine, a prudent
      lawyer can avoid giving the jury the impression that he [or she]
      is concealing something crucial.

      ....

      [Other] types of in limine violations are less flagrant than [the
      junior doctor’s here], which involves an accusation of criminal
      conduct difficult for a jury to ignore. While a curative
      instruction might alleviate a more benign evidentiary gaffe,
      the instruction in this case may have amplified the prejudice
      to [the senior doctor]. This was a close case. The credibility
      of the two doctors was central to the . . . issues presented to
      the jury. [The junior doctor’s] violation of the pretrial order
      was egregious enough to entitle [the senior doctor] to a new
      trial.

Id. at 645-46 (internal citation omitted).

   In Orvis, we held that a trial court abused its discretion in failing to
grant a motion for a new trial, where defense counsel acknowledged his
cross-examination question to the plaintiff violated an order in limine
precluding any questions regarding the plaintiff’s alleged illegal contact
with third parties. 861 So. 2d at 1184. We reasoned:

         Like Fischman, the improper question in this case involved
      “an accusation of criminal conduct difficult for a jury to
      ignore.”     Moreover, also like Fischman, the curative
      instruction given by the judge here may have amplified the
      prejudice to [the plaintiff]. . . . Finally, where in Fischman the
      credibility of the two doctors was central to the issues
      presented to the jury, in this case, the credibility of [the
      plaintiff] was critical to the issue sent to the jury.

Id. (emphasis in original).

   In Howard, the Fifth District held that a trial court’s curative
instruction was inadequate, and the trial court instead should have
granted a criminal defendant’s motion for mistrial on a battery charge,
where the alleged victim testified that he had raped her in the past, thereby
violating an agreed order in limine regarding the defendant’s “other crimes

                                  22
or bad acts.” 950 So. 2d at 1262. Our sister court reasoned: “Given the
quantity and quality of evidence before the jury, and in light of the other
evidence improperly presented over defense objection, we cannot say
beyond a reasonable doubt that the victim’s statement that [the defendant]
had raped her in the past did not affect the verdict.” Id. at 1264.

    Like the foregoing cases, this was a close case as well. The credibility
of the alleged victim and the defendant was central to the issues presented
to the jury. The alleged victim’s statement to defense counsel, “You see
the DNA results on me. And now you guys say the DNA’s not on my butt,
but it was on my butt. It was enough -- ,” was extremely significant. If
the jury understood and believed the alleged victim’s statement to mean
that proof existed of the defendant’s DNA on her buttocks, then such
statement gutted the defendant’s claim that he did not touch the alleged
victim’s buttocks in any manner. In turn, the credibility of the defendant’s
testimony regarding the entire incident was subject to question, if not
being wholly rejected. Thus, the alleged victim’s knowing violation of the
pretrial order regarding the DNA on her buttocks was egregious enough to
entitle the defendant to a new trial. A curative instruction would not have
alleviated this knowing violation.

   e. Guzman v. State is distinguishable.

   One other case, Guzman v. State, 214 So. 3d 625 (Fla. 2017), which
neither party to this case cited, deserves mention. In Guzman, the Florida
Supreme Court affirmed a trial court’s denial of a motion for mistrial based
on the alleged improper discussion of DNA evidence. However, Guzman is
distinguishable.

   In Guzman, a woman was murdered in her apartment, and DNA
analysis of several items in the apartment revealed a single male DNA
profile. Id. at 628-29. Four years later, a cold case detective received a hit
from the FBI’s combined DNA index system (“CODIS”) indicating that
Guzman’s DNA profile matched the male DNA profile found at the woman’s
apartment. Id. at 629. Guzman was indicted for the murder. Id. at 628.

    When the detective was testifying at Guzman’s trial, the detective
initially did not mention CODIS during his testimony. Id. at 629 n.1.
Instead, the detective merely testified that he learned of “information”
leading him to suspect Guzman was responsible for the woman’s murder.
Id. at 629. The detective testified that after Guzman became a suspect, a
DNA profile was obtained from him, and the crime lab confirmed that his
DNA profile matched the male DNA profile found at the woman’s
apartment. Id.

                                  23
   However, at some point later during the detective’s testimony, while
discussing the steps he took in his investigation, he stated, “the next thing
that occurred is . . . I was told that there was a possible DNA match.” Id.
at 632.

   Guzman’s counsel, apparently believing that the detective’s testimony
about “a possible DNA match” was referring to the hit from CODIS, moved
to strike the statement and moved for a mistrial. Id.

   The trial court granted Guzman’s motion to strike but denied his
motion for mistrial. The trial court instructed the jury to “disregard the
last statement by [the detective].” Id.

  On appeal, Guzman argued that the trial court erred in denying his
motion for mistrial, because the detective’s reference to “a possible DNA
match” “had the unmistakable effect of telling the jury that . . . Guzman’s
DNA was already in a database of criminal offenders.” Id. at 633.

   The Florida Supreme Court disagreed, reasoning:

         [T]here was no evidence introduced at the guilt phase that
      Guzman was charged with or convicted of any prior crimes,
      nor was there any evidence that his DNA was in a database of
      criminal offenders. Further, the comment was brief, isolated,
      inadvertent, and the jury was instructed to disregard it.

         ....

         At the point in Guzman’s trial when [the detective]
      mentioned “a possible DNA match,” the jury had already
      learned from earlier witnesses that Guzman’s DNA matched
      the male DNA found . . . at the crime scene, and that DNA
      analysis was conducted more than once in this case. . . . [The
      detective’s] testimony did not implicate Guzman in prior
      criminal activity but would “most reasonably be interpreted in
      context as referring to the facts of the crime that was being
      investigated.” Thus, the trial court did not abuse its discretion
      in denying the motion for mistrial.

Id. at 633-34.

   Guzman is distinguishable from the instant case in three respects.


                                  24
    First, the Supreme Court did not mention whether Guzman had filed a
pre-trial motion in limine to exclude any mention of the fact that his DNA
was found in CODIS. Here, however, the defendant not only filed a pre-
trial motion in limine, but also obtained two favorable orders on that
motion, with the latter order ultimately providing that any testimony
regarding law enforcement’s efforts to identify the DNA found on the
alleged victim’s buttocks could only indicate that such efforts were
“inconclusive.”

    Second, the Supreme Court concluded that the detective’s comment in
Guzman was “inadvertent.” Id. at 633. Here, however, the alleged victim’s
comment cannot be described as merely “inadvertent.” As the state
admitted to the trial court, on the very morning of defense counsel’s cross-
examination, the alleged victim e-mailed the state, “I know we’re not
allowed to get into DNA,” to which the state responded, “We’re not talking
about that in this trial.” And yet just hours later, the alleged victim implied
that the defendant’s DNA was on her buttocks, even when that subject
was not responsive to defense counsel’s question at that moment.

    Third, the Supreme Court disagreed with Guzman’s argument that the
detective’s statement “had the unmistakable effect of telling the jury that
. . . Guzman’s DNA was already in a database of criminal offenders.” Id.
Instead, the Supreme Court concluded that Guzman’s jury reasonably
would interpret the detective’s statement as referring to the crime being
investigated, and not to any prior crimes. Id. at 633-34. Here, however,
the jury reasonably may not have interpreted the alleged victim’s comment
as referring to another person’s DNA. As the trial court, in a similar
position to interpret the comment as the jury heard it, immediately
remarked: “[S]he made it sound like it was his DNA.”

   For these three reasons, we conclude that Guzman is distinguishable
from the instant case.

                                 Conclusion

   In sum, we are compelled to reverse the trial court’s denial of the
defendant’s motion for mistrial based on four compelling factors: the
defendant obtained favorable rulings on his pre-trial motion in limine and
motion for clarification to exclude what would be unfairly prejudicial
evidence; the alleged victim knowingly violated the trial court’s order;
based on the nature of the jury’s verdict, we cannot say beyond a
reasonable doubt that the violation did not materially contribute to the
defendant’s conviction; and a curative instruction would not have
remedied the defendant’s right to a fair trial under these circumstances.

                                   25
To rule otherwise would be unreasonable, and that is why we believe the
abuse of discretion standard has been met in this case, and why we must
reverse the trial court’s decision.

    By our decision, we do not mean to suggest that every violation of an
order granting a motion in limine should result in a mistrial. See Leyva v.
Samess, 732 So. 2d 1118, 1121 (Fla. 4th DCA 1999) (“Not every violation
of a pretrial order in limine should automatically result in a new trial.”).

   What mandates our decision here is the combination of the four
compelling factors which we have described above. This combination has
caused an error “so prejudicial as to vitiate the entire trial, such that a
mistrial is necessary to ensure that the defendant receives a fair trial.”
Gosciminski, 132 So. 3d at 696 (emphasis added; internal citations and
quotation marks omitted).

  Based on the foregoing, we reverse the defendant’s attempted sexual
battery and simple battery convictions and sentences, and remand for a
new trial on those two charges. Without further discussion, the other
arguments which the defendant has raised in this appeal lack merit.

   Reversed and remanded for new trial.

DAMOORGIAN and CIKLIN, JJ., concur.

                           *          *        *

  Not final until disposition of timely filed motion for rehearing.




                                 26
