         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-4926
                 _____________________________

JUAN ENRIQUE GONZALEZ,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Gadsden County.
Barbara K. Hobbs, Judge.

                          June 22, 2018

B.L. THOMAS, C.J.

      In this collateral appeal, Appellant argues that his trial
counsel was ineffective under the Sixth Amendment to the
United States Constitution. Following a jury trial, Appellant was
convicted of two counts of capital sexual battery and sentenced to
life imprisonment, based on sexual intercourse with a neighbor’s
ten-year-old daughter. After his judgment and sentence were
affirmed on direct appeal, Appellant sought postconviction relief
under Florida Rule of Criminal Procedure 3.850, which was
denied.

     Appellant now challenges the postconviction court’s denial of
three claims relating to his counsel’s representation at trial, as
follows:   (1) Failure to move to suppress testimony by an
investigator who entered Appellant’s home without a warrant;
(2) failure to have the DNA evidence retested and analyzed by an
independent expert; and (3) failure to demonstrate that
Appellant’s girlfriend could have been the source of the DNA on
Appellant’s underwear. Because we conclude that Appellant
cannot show prejudice from any purported deficient trial
representation, we affirm the judgment below denying
postconviction relief.

                             Trial

     The victim’s mother testified that Appellant had persuaded
her to move into a mobile home very near to his mobile home. He
was very kind, offering to make repairs to her previous mobile
home and otherwise appeared very “cool.” On the day of the
crimes, Appellant visited her residence and asked to borrow a
movie, picking out “Chicken Little.” The victim’s younger sister
then pleaded with her mother to be allowed to watch the movie
with Appellant at his mobile home. Finally relenting, but to
ensure that the younger sister was not alone at Appellant’s home,
the mother directed the victim to also go to Appellant’s home.
Unbeknownst to the mother, however, the younger sister left
Appellant’s trailer, but the victim did not return home for 20-
30 minutes.

    The mother testified that when the victim returned home,
she appeared afraid and nervous, like a “deer caught in
headlights” and her “facial affect and body language” were
“completely different” than before she went to Appellant’s home.
The mother testified that the victim asked “how was her day
going,” and that the victim had never before asked her such a
question. She immediately asked the victim what was wrong,
and the victim became even more nervous. She told her mother
that “she didn’t want to ruin her day.” She then told her mother
that Appellant had “messed with her.”

     The impact on the mother was “shock,” and she immediately
took the victim into a bedroom and asked more specifically what
happened. The victim told her that Appellant had put his penis
into her vagina and her anus. The mother examined the victim
and, after observing what appeared to be injuries, immediately
took her to the hospital.

                               2
    Before they left for the hospital, however, Appellant came
back to their mobile home, saying he wanted to “fix the bathroom
and so forth.” The mother pretended not to know what the victim
had reported to her.

     As soon as Appellant left, the Mother immediately took her
daughter to the hospital, where the victim was examined and
interviewed by the Child Protection Team. The mother testified
that the victim has since suffered nightmares and attempted to
hurt herself after the sexual crimes. She testified that just before
trial, the victim’s suffering had worsened and she was concerned
she might have to “institutionalize” the child.

     The victim, age eleven at the time of trial, testified to the
events, with the court reporter noting that she was making
“unintelligible noises” during her testimony. The victim testified
that she “did not want to talk about” the assault, but she
confirmed that her mother had told her about “good” and “bad”
touches before the crimes occurred. She also confirmed that her
mother had told her that if anyone touched her in a “bad” way,
she should tell her mother. The victim testified that she knew
Appellant as “Juan,” and that no one else was with them in the
mobile home after her younger sister left. When asked if she
would tell the jury what happened in Appellant’s mobile home,
the child tried to do so but then again made an “unintelligible
noise.”

     The victim, referring to anatomical drawings, then testified
that she told her mother that Appellant did something “bad” and
“touched me in the privates.” She testified that Appellant was on
top of her, he pulled her clothes down, and put his penis in her
vagina. She testified that he then “made me turn on my side, and
he did it on the back.” She clarified that Appellant sexually
assaulted her “butt.” The victim testified that Appellant gave her
toilet paper after the assault. When she was confused about
what to do, Appellant used the toilet paper to wipe her body. She
then ran home to her mother. The victim testified that she was
taken to the hospital and the Child Protective Team offices in
Tallahassee. She testified that she told them the “truth” and her
testimony at trial was the “truth.”


                                 3
     The victim identified Appellant through a photograph of how
he looked on the day of the crimes. The victim could not identify
Appellant at trial. She testified that Appellant was the person
who committed the crimes, that she knew him for a “day or two,”
and that he “fixed things” around the trailer. The victim
confirmed that the events occurred in Appellant’s mobile home.
She also testified that no one else was in the mobile home when
Appellant assaulted her, and no one else committed the crimes.

     On cross-examination, defense counsel established that on
the day of the events, the victim was shown only one picture of
Appellant. Defense counsel also elicited testimony that the
victim had not volunteered the description of the events to her
mother, but that her mother had asked her what happened.
Defense counsel also successfully elicited a statement from the
child that her mother had “told her” what she “needed to say” in
court.

     On redirect examination, the prosecutor attempted to clarify
that the child had not been told what to say during her
testimony, but to answer questions and tell the truth. The child
testified that her mother did not tell her to “lie about anything.”

     Investigator Scott Ivey, a violent crime investigator with the
Gadsden County Sheriff’s Office, testified that he arranged for
the victim to be interviewed by the Child Protection Team in
Tallahassee. The interview was conducted in a room where a
child can be observed, but cannot see who is observing her. He
observed the interview. Investigator Ivey testified that he had
the victim’s clothing sealed and sent to the Florida Department of
Law Enforcement for further analysis.

     Investigator Ivey testified that he then instructed a Gadsden
County Sheriff’s deputy to go to Appellant’s mobile home to
arrest Appellant. Investigator Ivey instructed the deputy to take
a photograph of Appellant.         Investigator Ivey showed the
photograph of Appellant to the victim, and she identified
Appellant as the perpetrator of the crimes. The investigator
testified that Appellant looked different at trial than he did in the
photograph, and confirmed that the person depicted in the
photograph was Appellant.

                                 4
     Investigator Ivey then briefly testified that he entered the
mobile home, where he observed it was in “disarray,” and took
pictures.    Investigator Ivey testified that he had obtained
information that items had been removed from the trailer before
he entered the mobile home.

     On cross-examination, defense counsel established that
Investigator Ivey did not have a warrant to enter the mobile
home but had only been given purported permission by
Appellant’s girlfriend, Brook Williams, who did not live there.
Defense counsel established that the investigator had obtained a
search warrant for Appellant’s DNA, but did not have a warrant
to enter the mobile home. Significantly, defense counsel also
elicited testimony from the investigator that he did not remove
any bedding, sheets, comforter, or anything of evidentiary value,
including the “Chicken Little” video.

     The Advanced Nurse Practitioner who examined the victim
testified as an expert witness in the field of “forensic analysis of
child sexual offenses.” She observed lacerations and abrasions to
the child’s vagina and blood and bruising of the child’s rectal
area, all of which were recently inflicted and consistent with the
substance and timing of the reported sexual offenses. The expert
witness further testified that she collected samples from the
child’s underwear. On cross-examination, defense counsel
established that the witness could not testify as to a precise time
that the physical injuries were inflicted, but only that she had
been told the incident occurred at 1:30, which was consistent with
the freshness of the blood she observed. Defense counsel also
confirmed that other than the victim informing her that the
man’s name was “Juan,” the nurse had no reason to identify any
person who may have committed the sexual abuse.

    Suzanne Livingston, an expert witness in DNA analysis with
the Florida Department of Law Enforcement, testified that a
sample taken from Appellant’s underwear included his semen
and DNA evidence from another person that “could have come
from” the victim. The victim’s epithelial cells could have been the
“minor donor” to DNA evidence found mixed with Appellant’s
semen; however, due to the small number of “markers,” the
expert witness could only testify that in one sample, one in

                                 5
twenty individuals could have produced that DNA. The victim
could have been one of those Caucasian females. For the other
sample, one in four Caucasian females could have produced that
DNA, and the victim could have been one of those females.

     On cross-examination, defense counsel elicited testimony
from the expert witness that “you can’t in fact” testify that the
DNA evidence could be identified as the victim’s DNA, either in
the one-in-twenty sample or the one-in-four sample.
Significantly, defense counsel elicited testimony from the expert
witness that neither of the “minor donor” samples taken from
Appellant’s clothing could be linked to the victim, “to the
exclusion of other people.”       Defense counsel also elicited
testimony from the expert witness that Appellant’s semen was
not found on the victim’s tested body samples, and no DNA
evidence linked to Appellant was procured from the analysis of
the victim’s body or clothing samples. On re-cross examination,
defense counsel established that the witness “can’t say that
anything found in your examination belongs to” the victim. This
was the last statement heard by the jury from the expert witness
on the DNA analysis.

     The State recalled Investigator Ivey for questioning
regarding his earlier testimony that he did not find the “Chicken
Little” video in Appellant’s mobile home. The investigator
testified that when he entered the home the day after the
offenses, the TV and video player were missing. On cross-
examination, defense counsel established that the day after
Appellant was arrested, the investigator entered the mobile home
and found the items were missing.

    After the State rested, and the trial judge asked Appellant if
he was satisfied with his attorney’s representation. Appellant
answered “perfectly.”

    In its closing argument, the State described the crimes as
crimes of “opportunity,” arguing that Appellant exploited the
opportunity of being alone with a developmentally delayed child.
The State noted that the victim’s physical examination by the
Child Protection Team corroborated the victim’s testimony that a
sexual crime occurred. The State acknowledged that no semen
was discovered on the victim’s body during the examination, but
                                6
this was not unexpected, as Appellant gave the victim a tissue to
wipe her body after the assault. The State did not mention the
sheriff investigator’s entry into Appellant’s mobile home or any
missing evidentiary items in the initial closing argument.

     The State briefly discussed the combined DNA evidence
taken from the semen stain on Appellant’s underwear, noting
that it could not show the victim was a “major donor,” but only a
possible “minor donor.” The prosecutor argued that there were
several loci present which produced the minor-donor profile, that
this evidence was consistent with the victim’s DNA profile, and
that it was important to note the evidence was removed from the
semen stain and not from a random location. The State did not
emphasize the DNA evidence and acknowledged that it did not
conclusively identify the victim in the minor-donor DNA results.
The prosecutor stated, “sometimes that’s all we have,” but “we
have a lot more [evidence] than that.”

     In his closing argument, Appellant’s defense counsel argued
that the DNA evidence was completely inconclusive and that the
State’s expert witness changed her description of the probative
value of the DNA evidence on cross-examination. Defense
counsel also emphasized that the State failed to collect any of
Appellant’s bedding or the tissue that the victim stated she was
given to clean herself. Defense counsel emphasized that he did
not “beat up” the child victim, because he was “not that kind of
attorney,” but that he had only wanted to focus on a few
questions. Counsel told the jury that it was not the child who
actually created the accusation against Appellant, but her
mother.

     Defense counsel aggressively criticized Investigator Ivey for
failing to take any evidence from Appellant’s mobile home for
analysis. Counsel emphasized that the investigator failed to
produce the “Chicken Little” video allegedly watched.

     Defense counsel then emphasized that the victim did not
even attempt to identify Appellant at trial. Counsel used the
metaphor of the runaway train to attempt to persuade the jury
that the underlying investigation was shoddy, that the mother
instigated the accusation, and that once she identified Appellant,
law enforcement made no legitimate effort to confirm Appellant’s
                                7
guilt. Defense counsel noted that the roommate of the victim’s
mother was not even called to testify, even though she was
present to help examine the child. Counsel also emphasized that
no one in law enforcement attempted to speak with Appellant’s
housemate, “Luis.” He also criticized the Advanced Nurse
Practitioner regarding her inability to provide a precise answer
as to how early in the day the injuries could have occurred.

     Defense counsel then criticized the ambiguity of the DNA
evidence and the lack of any evidence directly identifying
Appellant. Counsel reminded the jurors that they took an oath to
base their verdict on evidence, not emotion. Counsel then urged
the jurors to not “jump on the train” of the shoddy investigation,
and “don’t let that train [of inconclusive evidence] drive you into
a verdict.”

     Defense counsel concluded his closing argument by
reiterating that there was no evidence removed from Appellant’s
mobile home, no photographs of Appellant’s bedroom where the
crimes allegedly occurred, and no evidence of any clothes on the
floor of Appellant’s mobile home. Counsel again stated that the
victim used words that she likely heard from her mother.
Finally, defense counsel concluded by urging jurors to do their job
and find Appellant not guilty, because the case was based only on
an “accusation,” not evidence.

     In rebuttal closing argument, the State emphasized that the
prosecution’s burden of persuasion was to prove the case beyond
a reasonable doubt, not to an absolute certainty. The prosecutor
mentioned the missing television and video player, along with the
testimony that Appellant had the child wipe away evidence of the
sexual assault.     The State also noted that Appellant had
significantly changed his appearance for trial, “with glasses on,
head shaved, mustache, a lot different than he look[ed at the time
of the offense].” The prosecutor concluded by noting that it was
uncontroverted that Appellant’s housemate was at work the day
of the crimes, that it was Appellant who came over to the victim’s
mobile home that day and borrowed the movie, that the other
evidence corroborated the victim’s testimony, and that the jury
should find Appellant guilty.


                                8
      The jury convicted Appellant of both counts of capital sexual
battery. The trial court imposed consecutive mandatory life
sentences, stating it considered both counts worthy of separate
life sentences. This court affirmed the convictions and sentences,
without opinion. Gonzalez v. State, 45 So. 3d 464 (Fla. 1st DCA
2010 (table).

               Postconviction Evidentiary Hearing

     Appellant filed a motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850, alleging ten grounds,
including his claims that counsel was deficient for (1) failing to
move to suppress Detective Ivey’s testimony about the unlawful
entry; (2) failing to have the DNA evidence retested by an
independent expert to conclusively include or exclude the victim
as a contributor; and (3) failing to demonstrate that Brook
Williams could have been the source of the DNA, by calling her as
a witness to testify that she and Appellant had a sexual
encounter the morning of the batteries, and having her DNA
analyzed. 1



    1  Appellant also filed a motion for postconviction testing of
DNA evidence under Florida Rule of Criminal Procedure 3.853,
alleging that the DNA analysis admitted at trial was inconclusive
and newer techniques would likely produce a better result. In his
3.853 motion, Appellant asserted that additional testing would
reveal that DNA found in his underwear belonged to Brook
Williams and not to the victim, claiming this would prove that he
did not commit a sexual battery against the victim. In response,
the State argued that proof of Williams’ DNA in the sample
would not disprove that Appellant committed the sexual
batteries. The trial court denied relief, concluding that because
the DNA evidence “was only minimally helpful in establishing
identity to begin with,” it would not support a determination of
innocence even if it excluded the victim. This court affirmed the
trial court’s order denying Appellant’s motion for additional DNA
testing, without opinion. Gonzales v. State, 145 So. 3d 834 (Fla.
1st DCA 2014) (table). This court has affirmed other orders
denying Appellant’s attempts to seek collateral relief, all without
opinion. Gonzalez v. State, 91 So. 3d 137 (Fla. 1st DCA 2012)
                                9
     At an evidentiary hearing on the motion, Appellant’s defense
counsel, Adam Ruiz, estimated that he met with Appellant twice
before trial and had his investigator meet with him two or three
times. Ruiz’s investigator put together a report after speaking
with Appellant. Ruiz said he does not generally take depositions
in criminal cases. During his pretrial investigation, Ruiz did not
learn that Detective Ivey had gone into Appellant’s home, and he
therefore had not moved to suppress the detective’s statements.
Ruiz was surprised when the testimony came out at trial that
Detective Ivey had gone into the residence and discovered
Appellant’s TV and video player were missing, and said he
thought the State was surprised, too. Ruiz agreed that if he had
deposed Detective Ivey, that information would likely have come
out and he may have filed a motion to suppress.

     Ruiz acknowledged that the State suggested at trial that the
items were missing because Appellant was destroying evidence.
Ruiz said it turned out someone who knew that Appellant was in
jail was “borrowing” items from the home, but that explanation
never came out at trial. But he said he did not think testimony
that the TV and VCR were missing had nearly the impact as the
victim’s testimony, stating “her testimony killed [Appellant], in
my professional opinion.”

     As to presenting potential witness Brook Williams to testify
regarding her sexual activity with Appellant on the day of the
crimes, Ruiz said he did not recall Appellant telling him about
her, although he was not sure and he thought his investigator
might have spoken to Williams. Ruiz testified that although the
DNA markers matching the victim could have matched one in
fourteen people, he never considered obtaining Williams’ DNA,
because he did not think it would “change the course of things”
based on the other evidence, such as the fact that the child had


(table) (challenging order granting relief regarding credit for time
served); Gonzalez v. State, 91 So. 3d 137 (Fla. 1st DCA 2012)
(table) (challenging life sentences as illegal “indefinite”
sentences). We take judicial notice of our court files in these
cases. See Schneider v. Schneider, 189 So. 3d 276, 278 (Fla. 1st
DCA 2016).

                                10
alleged Appellant made her clean herself after forcing her to
engage in sexual activity. Ruiz said, “The testimony of the victim
in the case was, to put it mildly, it was brutal for the defense.”
Ruiz thought he recalled that several jurors were moved to tears
during the victim’s testimony.

    Appellant testified that Ruiz was helpful and attentive when
they met, but was always in a hurry. Appellant said he gave
Ruiz “the whole story” of what occurred the day of the alleged
batteries, “starting with when Brook Williams arrived at the
house that morning.” Appellant testified that he told Ruiz or his
investigator that he had sex with Williams that day and gave
them information to contact her, but he did not know whether
they ever spoke to her.

     After hearing argument, the court indicated that it would
read the trial transcript, which had been submitted into evidence,
before making a decision. 2 The court later denied relief on all
grounds.

     As to the claim regarding Detective Ivey, the court found
that defense counsel was deficient for failing to seek suppression
of the testimony, based on the investigator’s unlawful entry. The
court found that despite defense counsel’s efforts to “make an
issue” of the improper search, the proper action would have been
to file a motion to suppress. However, the court found the
deficient performance did not undermine confidence in the
outcome of the trial, because there was nothing of value found in
the home, and the State’s suggestion in rebuttal argument that
nothing was found because Appellant destroyed evidence would
not have affected the outcome in light of the victim’s testimony.

     As to Appellant’s arguments regarding additional DNA
testing and potential testimony by Brook Williams about sexual
contact with Appellant, the trial court found that, even if counsel
was deficient for failing to pursue these issues, it would not have
undermined confidence in the outcome in light of the other
physical evidence and eyewitness testimony. The trial court also


    2   The judge hearing the motion had not presided at the trial.

                                 11
relied on the previous rejection of Appellant’s request for DNA
testing under Florida Rule of Criminal Procedure 3.853.

                            Analysis

     To be entitled to relief on a postconviction claim, the
defendant must demonstrate that counsel’s performance “fell
below an objective standard of reasonableness” and that “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 669 (1984). Because the
defendant must prove both deficient performance and prejudice,
we address this case without deciding whether the trial court’s
findings as to any deficient performance by defense counsel are
supported by competent, substantial evidence. See State v.
Anderson, 215 So. 3d 181, 183 (Fla. 5th DCA 2017) (“Ineffective
assistance of counsel claims present mixed questions of law and
fact. Deference is given to the postconviction court’s factual
findings if they are supported by competent substantial evidence
in the record.” (citations omitted)).

     We focus instead on whether any alleged deficient
performance by counsel actually prejudiced Appellant—that is,
whether “there is a reasonable probability that the results of the
[trial] would have been different but for the inadequate
performance.” Id. (emphasis added) (quoting Larry v. State, 61
So. 3d 1205, 1207 (Fla. 5th DCA 2011)). Our supreme court has
held that where a criminal defendant cannot show prejudice—
that is, where evidence of guilt is overwhelming and where there
is no reasonable probability that absent any deficient
performance by defense counsel a defendant would have been
acquitted, a claim of ineffective assistance of counsel must be
denied. Williamson v. State, 123 So. 3d 1060 (Fla. 2013) (“A court
considering a claim of ineffectiveness of counsel need not make a
specific ruling on the performance component of the test when it
is clear that the prejudice component is not satisfied.”) (quoting
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986)).

    We do not necessarily agree with the trial court’s conclusions
that defense counsel rendered deficient performance by failing to
move to suppress the investigator’s testimony that he unlawfully

                               12
entered Appellant’s mobile home. 3 But we do agree with the trial
court on all of its findings that any purported deficient legal
representation did not prejudice Appellant, because there is no
reasonable probability that Appellant would have been acquitted.

     This is necessarily true because, as defense counsel testified
at the postconviction evidentiary hearing, the child victim’s
testimony was no doubt “brutal” for Appellant, which our reading
of the trial transcript confirms, to the extent a transcript can
convey such an impression. This is not a case where a victim
delayed in reporting her victimization for years (which is not
uncommon), or where there is no expert testimony confirming
that sexual abuse likely occurred. Rather, this is a case where
the young child let her mother know immediately that something
very wrong had occurred. The child knew the difference between
“good” and “bad” touches, the mother confirmed signs of sexual
abuse immediately, and those observations were promptly
confirmed by an Advanced Nurse Practitioner who was an expert
in physical symptoms of child sexual abuse.

    The jury had overwhelming evidence on which to find
Appellant guilty. To the extent that defense counsel may have
provided better representation, it would not have changed the
outcome of the trial. Assuming arguendo that Williams would


    3   We note that defense counsel’s apparent practice of
declining to conduct pretrial depositions can be an effective tactic,
depending on the facts of a case, as it can sometimes be to a
defendant’s advantage to prepare a defense by investigating the
facts without utilizing depositions, which can inform prosecutors
of a defense strategy or memorialize important information
prosecutors may later use to prepare their case. We also note
that defense counsel performed well in emphasizing that the
investigator failed to seize any evidence, take photographs, or
collect information from Appellant’s mobile home. This was
helpful to the defense in its argument that the case was a
runaway train, based on nothing but an accusation. However, we
need not determine whether defense counsel was deficient in
failing to learn of the investigator’s unlawful entry, as we focus
our analysis on the lack of prejudice to Appellant.

                                 13
have testified that she and Appellant had sexual intercourse the
day of the crimes, and that the minor-donor DNA evidence was
conclusively connected to Williams, such evidence would not have
persuaded any rational jury to acquit Appellant, because it would
not have contradicted the victim’s testimony that Appellant
committed two acts of capital sexual battery later that day.

     Nor would the exclusion of Investigator Ivey’s testimony
have led to a different outcome. “Claims of prejudice under
Strickland are routinely rejected where, as here, the totality of
the evidence of guilt so dictates.” Williamson, 123 So. 3d at 1066.
Here, the child’s testimony was corroborated in almost every
manner possible, including prompt reporting, confirmation of
relevant injuries by an expert witness, including fresh blood
observed from the sexual trauma, and the incontrovertible
evidence that the victim went to Appellant’s home. Thus,
because there could be no prejudice here, the trial court’s order
denying postconviction relief on the claim of ineffective assistance
of counsel must be affirmed.

    AFFIRMED.

WOLF, J., concurs; RAY, J., concurs in result only.

                 _____________________________

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


Andy Thomas, Public Defender, Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.




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