       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         JAMES RYAN LOPIANO,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D11-4267

                               [May 6, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case Nos.
09006382CF10A and 09008573CF10A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant James Lopiano was convicted of three counts of lewd or
lascivious molestation under section 800.04(5), Florida Statutes (2009).
He was sentenced to twenty-five years imprisonment followed by lifetime
sex offender probation. Appellant now challenges his conviction and
sentence. Specifically, Appellant argues 1) the trial court erred by denying
a motion in limine to exclude portions of Appellant’s interrogation referring
to alleged penetration and the accompanying police statements; 2) the
court erred by not assuring his presence in the courtroom at all times; and
3) the court erred by not sentencing him to less than the statutory
minimum. Because we reverse based on the first issue, we need not
discuss Appellant’s other arguments.

                               Background

  At the time of the accusations against Appellant, he lived in a single
home with his two brothers, sister-in-law, and his niece and nephew, both
under the age of eight. After both children told their mother that Appellant
had touched their genitals, the mother alerted the police, who began an
investigation of Appellant’s actions.

    As part of this investigation, Appellant was questioned by an officer
from the Plantation Police Department. Although Appellant initially denied
any inappropriate touching of the children, he admitted that he often
tickled the children, which may have led to him accidentally touching the
children’s genitals. When pressed by the officer, however, Appellant
eventually admitted touching his niece’s vaginal area and his nephew’s
penis because it made him sexually aroused. However, despite the lack of
evidence that Appellant had done anything beyond rubbing the children’s
genitals, the questioning officer continued to ask Appellant if he had
digitally penetrated either child. When Appellant denied doing so, the
officer stated that he did not believe Appellant’s denials.

   At trial, both children testified that Appellant touched them.
Additionally, the State introduced a recording of Appellant’s interrogation.
The recording was partially redacted, but still included the officer’s
questions to Appellant about penetration, along with the officer’s
commentary expressing skepticism at Appellant’s denial. Appellant was
convicted of three counts of lewd or lascivious molestation.

                                 Analysis

    Lewd or lascivious molestation under section 800.04(5)(a), Florida
Statutes (2009), occurs when a person “intentionally touches in a lewd or
lascivious manner the breasts, genitals, genital area, or buttocks, or the
clothing covering them, of a person less than 16 years of age, or forces or
entices a person under 16 years of age to so touch the perpetrator.” While
a showing that a defendant digitally penetrated a child would certainly be
sufficient to obtain a conviction under Chapter 800, evidence of
penetration or insertion is not necessary to prove guilt of the crime of
which Appellant was charged. Additionally, neither of the children
accused Appellant of an act of penetration, there was no evidence that he
had done so, and Appellant repeatedly denied penetrating either of the
children. The probative value of the officer’s questions about penetration
was low, while the risk of prejudice to the Appellant from these questions
was significant, given the inflammatory nature of these unsupported
allegations. Therefore, it was erroneous to allow these questions and
answers into evidence.

   Furthermore, the admission of the officer’s repeated statements that he
did not believe Appellant’s denials was also erroneous. A police officer’s
testimony or comments suggesting a defendant’s guilt invades the

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province of the jury to decide guilt or innocence. Martinez v. State, 761
So. 2d 1074, 1079-80 (Fla. 2000) (stating that, generally, “a witness's
opinion as to the guilt or innocence of the accused is not admissible . . .
on the grounds that its probative value is substantially outweighed by
unfair prejudice to the defendant”); Sparkman v. State, 902 So. 2d 253,
259 (Fla. 4th DCA 2005). Commentary by officers is allowed when it
provokes a relevant response or provides context. Jackson v. State, 107
So. 3d 328, 340 (Fla. 2012); McWatters v. State, 36 So. 3d 613, 638 (Fla.
2010). Here, however, Appellant’s responses fall short of that mark.
Appellant’s specific statements denying the alleged penetration may have
had some value in corroborating his earlier confession (“I would never do
that to a child. Yeah I told you what I did to them but no I would not
penetrate them”), but the probative value of these statements was
sufficiently outweighed by the unfair prejudice to his defense engendered
by admission of the officer’s commentary.

    The error of admitting the police officer’s commentary was harmful. In
Watson v. State, 603 So. 2d 22, 22 (Fla. 4th DCA 1992), a criminal
defendant was charged with carrying a concealed firearm. While the
defendant was on the stand, the State inquired if he had heard a witness
tell the arresting officer that the defendant had threatened that witness
with a firearm. Id. at 23. We held that the witness’s statement was
inadmissible as it was not material to the charged crime. Id. at 24.
Further, we held the admission of the statement to be harmful error
because “[the witness]’s statement implicated a crime more serious than
the one [defendant] was actually charged with and convicted of.” Id. (citing
Harris v. State, 544 So. 2d 322 (Fla. 4th DCA 1989)). Similarly, the
accusation that Appellant “penetrated” the victims in this case, though
refuted, was more serious than the actual allegations at issue. We cannot
say this error did not possibly contribute to Appellant’s conviction. State
v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

                               Conclusion

    The trial court erred by denying Appellant’s motion in limine to exclude
certain portions of his interrogation and the corresponding commentary
by the investigating officer. This error cannot be said to be harmless.
Accordingly, we reverse Appellant’s conviction and remand the case to the
trial court for further proceedings.

   Reversed.

DAMOORGIAN, C.J., and CONNER, J., concur.


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Not final until disposition of timely filed motion for rehearing.




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