DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JORGE FELIX ALMARALES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-1611
[June 23, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey D. Gillen, Judge; L.T. Case No. 50-2019-CF-
007061-AXXX-MB.
Carey Haughwout, Public Defender, and Ross Frank Berlin, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.
ROBINSON, MICHAEL A., Associate Judge.
The appellant, Jorge Almarales (“the defendant”), appeals his conviction
and sentence for two counts of lewd or lascivious molestation of a child
less than twelve years of age. He contends that the court erred in
overruling objections to statements made by the prosecutor in closing
argument as well as restricting the defense cross-examination of a state
witness. We conclude that the court erred in allowing the state to make a
bolstering argument regarding the victim, which error was not harmless.
We thus reverse.
By information, the state charged the defendant with two counts of lewd
or lascivious molestation of N.C. (“the victim”), a child less than twelve
years of age. The case proceeded to trial.
The state theorized that the defendant, a friend of the victim’s family,
began molesting the victim when she was six years old. The abuse
occurred while he visited the victim in her home, and it continued until
the victim was eight years old. At that point, the defendant abused the
victim in his home. The defense theory was that the victim was being
bullied in school because of her weight, and she fabricated the allegations
of sexual abuse for attention.
The victim, who was eight at the time of trial, testified as follows. She
lives with her parents and her grandmother. The defendant is “kinda like
my grandfather.” He lived nearby, within walking distance from the
victim’s home. He had spent a significant amount of time at the victim’s
home over the years. She and the defendant enjoyed playing dominoes.
The victim testified that defendant began touching her over her clothing
on her “private part” but over her clothing when she was six. She told him
to stop, and he did. The defendant’s wife was home when that happened,
but she was in the kitchen. He continued to touch her at other times after
that, “[s]ometimes at his house, sometimes at mine,” though not every time
she saw the defendant. It happened “when other people were home,” but
“[t]hey were doing something else.” No one ever saw it happen.
When she was seven and playing hide and seek with the defendant’s
grandson, the defendant directed her to “come look over here” for the
grandson. She thought he was “[t]rying to touch my private part again,”
but she also believed the defendant’s grandson was hiding in the area
where the defendant directed her to look.
She related another touching at a party for her grandmother in her
backyard, when the defendant touched her under the table while she was
seated between him and her mother. She said she yelled out “stop,” and
her family asked her what happened. She said that she was pinched.
The victim further testified about another incident. The defendant was
visiting at her home with her grandmother and other family members
present. The defendant “told me to sit on his lap and he started touching
me again.” She sat on his lap and he touched her “the same way.” She
slapped his hand away. They went outside and the defendant again
directed her to sit on his lap, so she did. “I trusted him this time.” The
defendant touched her again over her shorts. She pushed his hand away.
The defendant and the victim then left to go to the defendant’s home to
play dominoes. When they got there, he took her to his bedroom, where
she had been before. He told her to lie down, which she did. He pulled
her shorts down but not her underwear. He pulled her shorts back on and
told her to stand up; she complied. He “grabs my butt and starts kissing
me on my lips.” He kissed her with “[h]is lips . . . like adults do it.”
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The defendant then told her to lie on a smaller bed next to the big bed.
He told her to “pull down my shorts” and “to take out a leg.” She obeyed.
The defendant stood in front of her and began to pull his pants down. She
said loudly, “Stop, stop, what are you doing?” He told her, “I’m trying to
teach you how to do the love.” She suggested they play dominoes instead.
The defendant was “on his knees and he got up.” She put her shorts back
on and they played dominoes at a table elsewhere in the house. When she
returned to her house, she told her cousin what had happened. Her
cousin told her to tell her grandmother which she did. The police came,
but she did not tell them everything. The next day she did tell another
lady everything.
On cross-examination, she admitted that she had been alone with the
defendant at his home many times with her grandmother’s knowledge. It
was “normal” for her to sit on the defendant’s lap. She attended a
performing arts school, and kids bullied her at school; they “called me fat.”
When she talked to the police, she told them that the charged incident
was the first time this had happened, but on cross-examination she said
she meant that it was the first time it happened in the bedroom.
The victim’s grandmother testified as follows. The defendant was a
family friend. On the day of the bedroom incident, the defendant was
outside with the children for a while, left, and then came back to grab a
dominoes set. He invited the victim to come play with his grandson. The
victim left and came back about twenty-five minutes later. She seemed
normal and ate with her cousin. After a while, the victim asked to tell her
something, and the victim then related what had happened at the
defendant’s house. She was shocked. She never noticed anything
unusual when he was over at their house. When the defendant came back
to the house, the grandmother confronted him, but the defendant denied
that anything happened. The grandmother did not remember any other
incident, including the one where the victim yelled “stop” during a family
party. She never saw the victim sit on the defendant’s lap.
The officer who came to the house on the day of the incident testified
but did not recall much of her questioning of the victim. She collected
clothes and spoke to the adults. A child protective team case coordinator
testified that she conducted a recorded interview with the child. The case
coordinator’s recitation of that interview was consistent with the victim’s
trial testimony.
A detective arranged a controlled call between the victim’s father and
the defendant during which the defendant denied touching the victim. The
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detective then interviewed the defendant, who was 81 years old and walked
with a cane. The defendant adamantly denied the incident or ever
inappropriately touching the victim. He conceded that he may have
inadvertently touched the victim in an inappropriate area while she was
engaged in horseplay with his grandson. As to the bedroom incident, he
stated that when the victim came to the house, she said she was bored.
He gave her a kiss and suggested that he show her the exercises he did
every day, so that she could work off her belly fat. The victim found it
difficult to do them with the tight shorts on, so she took them off. The
defendant told her to put her shorts back on, and then they played
dominoes. The defendant readily gave a DNA sample to the detective.
The state’s DNA expert testified that DNA swabs taken from the victim’s
mouth and lips showed one contributor, and the victim could not be
excluded. The DNA expert testified that he could not exclude anyone.
There was possible male DNA in the swab from the lips, but below the
amount necessary to analyze.
The state rested, and the defendant did not call any witnesses. During
defense closing argument, counsel questioned the victim’s account:
And think back, because some of her answers were very
childlike and some of them weren’t. When asked, “Why did
you report this,” she didn’t initially say, “Because it felt very
different.” She said, “Because it’s really inappropriate to do
that to a child.” Inappropriate is not an eight-year-old’s word.
Defense counsel then questioned the likelihood of the victim’s assertion
that “she’s touched in front of her family yells out no one responds,” and
also pointed out that the victim’s grandmother’s account of events did not
jibe with the victim’s account. Counsel then argued: “And remember
again the words that she uses which are not the words of an eight-year-
old. ‘Well, I trusted him again.’ That’s not the words of an eight-year-old.”
The prosecutor did not object to defense counsel’s arguments. She
addressed the arguments in her rebuttal closing:
In opening statement, defense counsel told you that she
imagined these allegations, that kids at school are talking
about sex, that she’s learning about sex at school. Ladies and
gentlemen, an eight-year-old is not going to imagine
allegations like this in the detail and in the manner that she
explained it, an eight-year-old as smart as this child is.
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Defense counsel lodged a “bolstering” objection, which the trial court
overruled. The prosecutor continued:
An eight-year-old is not going to be able to lay out two years
of constant normalizing of sexual behavior that culminates in
this experience at this house. This is not from the imagination
of an eight-year-old.
After closing arguments, the jury returned a verdict of guilty on both
counts in the information. The defendant was convicted and sentenced to
twenty-five years in prison, adjudicated a sexual predator, and ordered a
lifetime of sexual offender probation. Defendant appeals his conviction.
In his first issue on appeal, the defendant argues that the trial court
erred in allowing the state to bolster the victim’s testimony during closing
argument by arguing that she did not have the ability to fabricate her
allegations of sexual abuse due to her age, where no evidence supported
the argument. We agree.
Contrary to the state’s position, the argument is preserved by the
defendant’s objection to the prosecutor’s argument as bolstering.
“Improper bolstering occurs when the State places the prestige of the
government behind the witness or indicates that information not presented
to the jury supports the witness’s testimony.” Ramey v. State,
177 So. 3d
308, 308 (Fla. 3d DCA 2015) (quoting Spann v. State,
985 So. 2d 1059,
1067 (Fla. 2008)) (emphasis supplied). Because the defendant contends
the state was attempting to enhance the credibility of the victim by arguing
facts not in evidence, bolstering was the proper objection. The issue is
preserved.
“A trial court’s rulings on objections to improper argument are reviewed
under the abuse of discretion standard.” Petruschke v. State,
125 So. 3d
274, 278 (Fla. 4th DCA 2013). “Where the comments were improper and
the defense objected, but the trial court erroneously overruled defense
counsel’s objection, we apply the harmless error standard of review.”
Cardona v. State,
185 So. 3d 514, 520 (Fla. 2016).
The defendant contends the state’s argument that the victim was too
young to fabricate sexual abuse allegations was not supported by the
evidence and that Petruschke requires reversal. “A prosecutor ‘is
prohibited from commenting on matters unsupported by the evidence
produced at trial.’” Petruschke,
125 So. 3d at 279 (quoting Fenster v. State,
944 So. 2d 477, 479 (Fla. 4th DCA 2006)). “Closing argument must be
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confined to record evidence and reasonable inferences from that evidence.”
Id.
In Petruschke, the appellant was convicted of lewd and lascivious
molestation of a three-year-old boy. Petruschke,
125 So. 3d at 277. At
trial, the child victim testified.
Id. at 278. During closing argument, the
trial court sustained defense counsel’s objection to the prosecutor’s
argument that a three-year-old does not have the capacity to fabricate
allegations of sexual abuse.
Id. at 279. However, the court denied the
motion for mistrial and then ruled that the prosecutor could argue that a
three-year-old does not have the mental ability to fabricate allegations of
sexual abuse.
Id.
On appeal, our court rejected the state’s argument that the prosecutor’s
comments amounted to a fair inference from the evidence, reasoning that
“[t]here was absolutely no evidence presented at trial that a three-year-old
child lacks the mental ability to fabricate allegations of sexual abuse.”
Id.
Instead, “[t]he prosecutor simply invented this claim in closing argument.”
Id. We opined that it “might be permissible for a prosecutor to argue that
a child of three would be unlikely to fabricate allegations of sexual abuse
out of self-interest,” but we recognized that “there was no evidence to
support a blanket assertion that a three-year-old lacks the ability to
fabricate allegations of sexual abuse.”
Id. The court also observed that
the child’s allegations were not made spontaneously, but rather in
response to questioning by an adult, and “there was no evidence presented
at trial that a three-year-old child lacks the mental ability to fabricate
allegations of sexual abuse in such circumstances.”
Id. The court found
the prosecutor’s comment was improper where it was unsupported by
evidence and not a reasonable inference from the evidence.
Id.
The state argues that Petruschke is distinguishable, as the prosecutor
in that case repeatedly referred to the defendant as a pedophile during
closing arguments and argued that the victim lacked the mental capacity
to fabricate sexual abuse allegations. However, these differences are of no
significance. Although other improper arguments were made in
Petruschke, and the court found cumulative error warranted a new trial,
the opinion does not indicate the improper argument regarding fabrication
was not, standing alone, sufficient to warrant a new trial. Additionally,
our court’s holding turned on whether any evidence supported the
argument.
While the prosecutor in this case did not expressly argue that an eight-
year-old does not have the capacity or mental ability to fabricate sexual
abuse allegations, the prosecutor essentially said as much. The
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prosecutor suggested that any eight-year-old could not come up with the
detail supplied by the victim in this case. There was no evidence at trial
to support such an assertion, and it was not a reasonable inference from
the evidence. The prosecutor went beyond the evidence and asserted that
children of the victim’s age do not have the knowledge necessary to
fabricate the sort of allegations involved in this case.
The state also asserts that the argument was fair response to the
defense opening statement and to the defense argument that the victim’s
testimony was fabricated because the words she used “were not the words
of an eight-year-old.” But that is a matter that is arguably within the realm
of common experience. Moreover, if the state believed that defense
counsel’s arguments were improper, the state should have objected. It did
not give the prosecutor the right to argue matters not in evidence.
We agree with the defendant that this error was not harmless beyond a
reasonable doubt. The state’s case hinged on the victim’s testimony, which
was not confirmed by any eyewitnesses or physical evidence. The
defendant adamantly denied the allegations. Under these circumstances,
the prosecutor’s bolstering of the victim through facts not presented in
evidence cannot be considered harmless. In sum, the state’s argument
was improper and harmful and requires reversal for a new trial.
The defendant additionally contends that it was error for the prosecutor
to argue to the jury that the defendant engaged in “grooming” the victim
over two years, which also required expert evidence, a point the defendant
made in a motion in limine filed prior to trial. The prosecutor was told by
the judge and consequently agreed to not use the word “grooming” during
her opening statement. While the prosecutor did not use the term
“grooming,” she did argue during closing, in response to the defense’s
argument, that the defendant was “normalizing” the sexual behavior,
which we conclude was using a different term to articulate the same
concept. Although there is no Florida authority on point, at least one other
court has recognized that “grooming evidence typically requires expert
testimony.” See State v. Atkins,
315 P.3d 868, 878 (Kan. 2014). We need
not decide this issue, however, because the defendant failed to preserve
the issue with a timely objection. The objection of “improper argument”
that he did make does not appear to us to be directed to the “normalizing”
argument but, rather, to other comments made by the prosecutor that the
defendant did not “pick his victim right.”
As to the remaining issues, we affirm without further discussion,
finding that the issues are either meritless or harmless beyond a
reasonable doubt.
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For the foregoing reasons, we reverse and remand for a new trial.
Reversed and remanded for new trial.
WARNER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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