FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D20-3671
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TROY M. TUTEN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Clay County.
Michael S. Sharrit, Judge.
September 29, 2021
PER CURIAM.
Appellant, Troy M. Tuten, appeals the trial court’s order
denying relief as to six of his claims in his motion for postconviction
relief filed pursuant to Florida Rule of Criminal Procedure 3.850.
Finding no error in the trial court’s denial of the claims, we affirm
the order on appeal.
Trial Proceedings
The State charged Appellant with three counts of sexual
battery against A.F., his stepdaughter, attempted capital sexual
battery against A.F., lewd or lascivious molestation against A.F.,
lewd or lascivious conduct against W.F., his stepson, and two
counts of lewd or lascivious exhibition against W.F. The offenses
allegedly occurred between 2008 and 2015. Appellant moved to
suppress the statements he made during a police interview on the
basis that they were obtained through threats and promises of
leniency made by a detective in the station’s parking lot prior to
the interview. In the order denying Appellant’s motion, the trial
court found that “the statements which [Appellant] alleges were
made by [the detective] in the parking lot prior to the recorded
interview were never made.”
During Appellant’s trial, W.F. testified about seeing A.F., who
was eleven years of age at the time, performing oral sex on
Appellant. He then saw the two “g[e]t in the bed and started doing
intercourse.” Appellant had W.F. watch and told him to get
himself ready because he was next. There were a “few other times”
when W.F. walked in on Appellant and A.F. Appellant told W.F.
that he would kill him if he threatened to call the police.
A.F. testified that the first incident with Appellant occurred
when she was approximately ten years of age. She explained,
“First thing I remember was around close to [Appellant’s] birthday
me and my brother were cleaning out the shed and he pulled me
aside and asked me to touch his – play with his private area, and
I told him, no. I went back to work.” A few weeks later, Appellant
called A.F. into his bedroom, “asked [her] to close the door, and
[she didn’t] remember all the details but it was the first time [they]
ever had any intercourse involving sexual activity.” She testified,
“He put his penis into my vagina.” When asked the next thing she
remembered, A.F. testified, “I just remember that it – he would call
me in there every couple weeks or maybe once a week to ask me to
do it with him.” Appellant started having her “give him like hand
jobs and blow jobs every now and then, too.” When asked if W.F.
ever became involved, A.F. testified, “One time around maybe 11
or 12 [Appellant] called him in there to join in.” A.F. affirmatively
responded when asked if Appellant’s behavior continued until she
was “about 17.”
When asked on cross-examination about the shed incident and
whether Appellant asked her to give him oral sex, A.F. replied, “It
wasn’t oral sex. He just asked me to play with his private area.”
She testified that W.F. did not watch her and Appellant have sex.
When asked if Appellant ever recorded any incidents, she
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affirmatively responded and testified that it happened in January
or February 2015. Appellant used his cell phone, but A.F. “stayed
in the room to make sure he deleted it.” After A.F. testified that
she would change her brother’s diapers, trial counsel asked, “Now
a little off topic here. When you would change Charlie’s diapers
you noted that Charlie wasn’t circumcised –." After the prosecutor
objected for “relevance,” the trial court asked what the next
question was, to which trial counsel replied, “In deposition she said
she didn’t know that [Appellant] was circumcised.” The trial court
stated, “You can ask her that. I don’t get the point.” The following
then transpired:
Court: She doesn’t know what circumcised means?
Trial counsel: I’m assuming she does know what
circumcised means because she doesn’t know that [her
brother] wasn’t and she doesn’t know if [Appellant] –
Court: What does that have to do with the child?
Trial counsel: Okay. I’ll just move on to the next question.
....
Court: The objection is sustained.
Thereafter, trial counsel asked A.F. whether she had any idea
if Appellant was circumcised, to which she replied, “No. I never
knew what circumcised was or what it looked like, if it was or not.”
Appellant made A.F. and her boyfriend break up in July 2014.
A detective testified that he met Appellant outside the police
station before his interview. He read a portion of a letter Appellant
wrote in jail twelve days after the interview; Appellant said in
part, “I’ve done wrong. I know and I’m sorry for the grief I’ve
caused . . . . I made a mistake with the kids and now I could be
gone for life. . . . Yes, some things I’m accused of is [sic] true and
some are not. I’m not a monster.” Appellant later wrote, “I’m very
ashamed of my actions and I beg their forgiveness and I hope one
day we can be reunited and my kids can have their daddy. . . . For
the stuff we are guilty of trying to get the prosecutor to give us
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whatever they want by suspend sentence and withhold
adjudication and not be registered sex offenders so you can keep
your job and we can keep our kids . . . .”
During his police interview, which was played for the jury,
Appellant affirmatively responded when asked by the detective if
he ever inappropriately touched A.F. Appellant stated that he and
A.F.’s mother “showed [A.F.] a couple of things that [they] should
have never,” and he admitted that A.F. had performed oral sex on
him. When the detective talked about A.F.’s accusations and
asked, “Did you guys only have sex the one time or was it more
than one time,” Appellant replied, “If it happened at all it might
have been when I drank like a wine cooler one night. I don’t think
it happened. I seriously don’t. I’m telling the truth. I mean I do
not think it happened.” He later stated, “That’s the only time that
I can think it might have happened.” When asked how long it
lasted, Appellant replied, “If it happened at all seconds.” When
another detective asked, “You’re somebody that made a mistake,
right,” Appellant replied, “A big mistake.” Appellant later stated,
“She’s telling the truth.” He explained, “It happened twice. The
first time she was curious and kept asking questions and asked the
things that happen. I don’t know why I did it. The second time
she threatened me. She said I’ll tell Mom if you don’t.” Appellant
denied videotaping any of the encounters. When later asked how
many times they had sex, Appellant replied, “I think I’m going to
be kind of high on this and say five.” When his questioning
resumed, the detective testified that nothing of interest was found
on Appellant’s phone. On cross-examination, the detective
explained that he and Appellant did not discuss the case outside of
the police station.
After the State rested its case, trial counsel told the trial court
that he advised Appellant not to testify because of his seven felony
convictions and two crimes of dishonesty, inconsistent statements,
and “some other letters that he wrote.” Appellant affirmatively
responded when asked by the court whether he had the
opportunity to discuss “this” with counsel, whether he had enough
time to reflect on how he wanted to proceed, and whether he
understood that it was ultimately his decision.
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During the State’s closing argument, the prosecutor argued in
part:
If it’s one incident wouldn’t they [A.F. and W.F.] just
sit down and make sure that they got the whole thing
right?
Why would there be any differences? . . . Talking
about something that happened to him when he was 9,
something that happened to her when she was 10 or 11
years old, years and years ago. They remember an
incident but the details of it are different because for her
it’s pretty difficult and for him it was pretty unusual.
I submit to you that [W.F.’s] version is probably
the more accurate of the two simply because it was
something that was atypical for him. . . .
....
You take the law. You take the facts. You take your
common sense and all the information that has been
presented and you make a determination and that
determination under all the evidence in this case is very
clear. This man molested his children.
....
[I]t’s pretty simple. Everything that she did,
everything that she lived through, everything that [W.F.]
lived through, all of it points to one irrevocable fact,
[Appellant] is guilty as charged of everything. . . .
(Emphasis added).
The jury found Appellant guilty of seven of the eight charges.
The trial court sentenced Appellant to life imprisonment on two
counts, thirty years’ imprisonment on three counts, and fifteen
years’ imprisonment on the remaining two counts. Appellant
argued on appeal that the trial court erred in not suppressing “his
involuntary confession obtained through police coercion.” This
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Court per curiam affirmed. See Tuten v. State,
234 So. 3d 671 (Fla.
1st DCA 2017).
Postconviction Proceedings
Appellant filed a motion for postconviction relief pursuant to
rule 3.850 and a supplement to his motion in which he raised a
total of nine claims for relief, only six of which are at issue in this
appeal.
In Ground 1, Appellant alleged that trial counsel was
ineffective for advising him not to testify at trial when he was
adamant that his confession was the result of coercion and
promises made by the interviewing detectives. According to
Appellant, he was promised a lenient sentence and a reunion with
his family while in the “station parking lot” before being read his
rights.
In Ground 3, Appellant alleged that trial counsel was
ineffective for failing to admit phone records to impeach A.F.’s
testimony and corroborate his defense. Appellant claimed that
while A.F. testified that she did not communicate with her
boyfriend from September 2014 to March 2015, the phone records
he obtained showed that A.F. had been in contact with him.
In Ground 4, Appellant alleged that trial counsel was
ineffective for failing to impeach A.F. with her prior inconsistent
statement that Appellant asked her to suck his penis in their shed.
Appellant argued that had trial counsel impeached A.F. with her
statement, her trial testimony would have been undermined by
showing that she was untruthful.
In Ground 5, Appellant alleged that trial counsel was
ineffective in failing to call the technician who analyzed his phone
and who found no video, contrary to A.F.’s allegations. Appellant
asserted that the analyst would have testified to the procedures
that he or she performed on the phone and would have explained
how nothing is truly deleted from an electronic device.
In Ground 6, Appellant alleged that trial counsel was
ineffective in failing to object during closing argument to the
prosecutor’s statements: “I submit to you that [W.F.’s] version is
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probably the more accurate of the two simply because it was
something atypical for him,” “This man molested his children,” and
“Troy Tuten is guilty as charged of everything.”
In Ground 9, Appellant alleged that trial counsel was
ineffective in failing to challenge A.F.’s trial testimony concerning
circumcision, which was “wholly inconsistent” with her deposition
testimony that she did not know if Appellant was circumcised.
During the evidentiary hearing on Grounds 1, 3-5, and 9, trial
counsel testified that Appellant agreed with him that testifying
would not be in his best interest. Trial counsel did not recall any
discussion with Appellant about cell phone records. He explained,
“[B]ut, you know, had to do it all over again I guess I could have
brought that up to him and we could have looked for cell phone
records, you know. Obviously when you look at a trial after the
fact there are moments of regret from things that I know I could
have done better.” He further testified that A.F. admitted during
trial to having some form of communication with her boyfriend
against Appellant’s wishes, so counsel “thought that was covered
at the time decently.” When asked if he thought cell phone records
were something that would have made a difference, counsel
testified in part, “I mean I’d have to say, yes, it would have
strengthened my argument. Would it ultimately have made a
difference in the end beyond a reasonable doubt? I don’t know.”
When asked about not calling the forensic examiner to testify that
no videos of Appellant and A.F. were found on Appellant’s phone,
trial counsel testified that his concern was that a “thorough
forensic search of an electronic device doesn’t always yield, you
know, every photograph or message or even video, and I didn’t
want to risk having that explanation given.”
When asked about A.F.’s testimony concerning the shed, trial
counsel testified in part:
I regret not getting into that more. . . .
So I could have – I could have done a better job there
but I think my strategy at that point had been – you know
– it’s not for me to judge at this point but my strategy
then was, look, I wanted to demonstrate the absurdity of
[A.F.] making this claim that [Appellant] was asking her
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to perform a sexual act on him after sending her [blacked
out] to go get something from the house when he knew he
was going to be back at any second and it would be
witnessed.
When asked about “the circumcision,” trial counsel testified:
The same thing. I think [Appellant’s]
characterization of me is pretty good there. I – an
objection was made. I – it was during the flow of the
testimony there and I – I really wasn’t expecting an
objection. Hindsight again I guess I should have been
expecting it. I wanted to develop the testimony that –
that [A.F.] had changed the diaper of her younger
[brother] before. Therefore, she may or may not know
what a circumcised penis is and therefore, well, she
knows what a circumcised penis is so you should – you
ought to know what [Appellant’s] is or not, and that – I
had to admit that Judge Lester kind of threw me off
there.
Reading over . . . the trial transcripts I saw I could
have done better there. I’m just being candid.
Thereafter, the postconviction court entered an Order
Denying Defendant’s Motions. This appeal followed.
Analysis
In order to establish a successful ineffective assistance of
counsel claim, a defendant must show that counsel’s actions or
omissions were deficient and that the deficiency so affected the
proceeding that confidence in the outcome is undermined.
Johnston v. State,
70 So. 3d 472, 477 (Fla. 2011) (citing Strickland
v. Washington,
466 U.S. 668 (1984)). When assessing alleged
deficiency, a court must determine whether the identified acts or
omissions were outside the wide range of professionally competent
assistance. Id. at 477. There is a strong presumption that
counsel’s actions were reasonable. Id. The prejudice requirement
is satisfied if there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been
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different. Id. A reasonable probability is “one sufficient to
undermine this Court’s confidence in the outcome of the trial. . . .”
Simmons v. State,
105 So. 3d 475, 498 (Fla. 2012). In reviewing a
decision of the postconviction court denying claims after an
evidentiary hearing, an appellate court reviews the court’s
findings of fact under the competent, substantial evidence
standard of review. Reynolds v. State,
99 So. 3d 459, 486 (Fla.
2012). A trial court’s application of the law to the facts is reviewed
de novo.
Id. To uphold the summary denial of a postconviction
claim, the claim must either be facially invalid or conclusively
refuted by the record. McLin v. State,
827 So. 2d 948, 954 (Fla.
2002).
Ground 1
As for Ground 1 and Appellant’s claim that trial counsel was
ineffective in advising him not to testify, the postconviction court
determined that Appellant was not entitled to relief because he
voluntarily agreed with counsel’s recommendation not to testify
and because the recommendation was a reasonable strategic
decision. “‘[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been considered
and rejected and counsel’s decision was reasonable under the
norms of professional conduct.’” Johnston,
70 So. 3d at 477
(citation omitted). The record establishes that trial counsel
thoughtfully considered whether Appellant should testify, and
reasonably advised him not to do so. As the postconviction court
determined, Appellant is not entitled to relief on this claim.
Ground 3
As to Ground 3 and Appellant’s claim that trial counsel was
ineffective in failing to impeach A.F. with cellphone records, the
postconviction court set forth in part:
. . . The Court agrees with counsel that if he would have
impeached [A.F.] with the cellphone records, his
argument of false allegations could have been
strengthened. However, outside of [A.F.’s] testimony, the
jury was also presented with [W.F.’s] testimony
regarding a sexual encounter between [A.F.] and
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Defendant, Defendant’s partial confession, and the
letters written by Defendant. Thus, the Court is not
persuaded that if counsel did present a conflict between
the cellphone records and [A.F.’s] testimony of when she
resumed communications with [her boyfriend] there
would have been a reasonable probability that the
outcome of the proceedings would have been different.
Because Defendant has failed to show prejudice, he is not
entitled to relief on Ground Three.
We agree with the court and find no error in the denial of relief as
to this claim.
Ground 4
As to Ground 4 and Appellant’s claim that trial counsel was
ineffective in not introducing A.F.’s sworn statement to impeach
her, the postconviction court set forth in part:
[A.F.’s] sworn statement is not found in the Court’s
records, and Defendant did not introduce [her] sworn
statement at the evidentiary hearing. . . .
....
Neither [A.F.’s] deposition testimony nor her trial
testimony was inconsistent with A.F.’s sworn statement.
. . . Therefore, counsel had nothing to impeach.
Even assuming counsel was able to get A.F.’s sworn
statement before the jury, the Court is not persuaded that
the statement pitted against her inability to recall that
statement would have undermined A.F.’s credibility to
the extent that the outcome of the trial would have been
different. The evidence of the shed incident was not
necessary to convict Defendant.
We agree with the court that Appellant failed to establish the
necessary prejudice with respect to this claim and that he is,
therefore, not entitled to relief.
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Ground 5
As for Ground 5 and Appellant’s claim that trial counsel was
ineffective in failing to call the forensic analyst who searched his
phone, the postconviction court found that trial counsel’s decision
to forego further discussion or analysis about the contents of
Appellant’s cell phone and to not introduce a forensic analyst was
a reasonable, strategic decision. Appellant has not shown
otherwise on appeal. As such, he is not entitled to relief as to this
claim. See Brooks v. State,
175 So. 3d 204, 222 (Fla. 2015) (“[B]oth
the record and our prior precedent demonstrate that trial counsel
made a reasonable, strategic decision . . . to pursue the theory of
reasonable doubt by arguing, through inference rather than
witness testimony, that no forensic evidence linked Brooks to the
murders.”).
Ground 6
In Ground 6, Appellant claimed that trial counsel was
ineffective in failing to object to certain statements made by the
prosecutor during his closing argument. The postconviction court
found that summary denial of the claim was appropriate because
the challenged statements could be reasonably inferred from the
evidence presented during trial, the prosecutor did not place the
government’s prestige behind the witnesses or indicate that there
was undisclosed evidence that proving Appellant’s guilt, and the
prosecutor did not state his opinion of Appellant’s guilt.
An attorney’s role in closing argument is to help the jury in
analyzing and applying the evidence, “including the attorney’s
suggestions as to what conclusions can be drawn from the
evidence.” Valentine v. State,
98 So. 3d 44, 55 (Fla. 2012) (internal
citation omitted). As such, attorneys are given wide latitude
during closing argument to review the evidence, draw reasonable
inferences from the evidence, and advance all legitimate
arguments. Patrick v. State,
104 So. 3d 1046, 1065 (Fla. 2012). It
is error for the State to make statements that invite the jury to
convict the defendant for some reason other than that it proved its
case beyond a reasonable doubt. Warmington v. State,
149 So. 3d
648, 652 (Fla. 2014). For instance, a prosecutor may not express
his or her personal opinion on the credibility of the witnesses,
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except to the extent such opinion is based on the evidence.
Valentine,
98 So. 3d at 55; see also Toler v. State,
95 So. 3d 913,
917 (Fla. 1st DCA 2012). However, “an attorney is allowed to
argue reasonable inferences from the evidence and to argue
credibility of witnesses or any other relevant issue so long as the
argument is based on the evidence.” Miller v. State,
926 So. 2d
1243, 1254–55 (Fla. 2006).
Taking first the prosecutor’s statement about W.F.’s version
being more accurate, the prosecutor was clearly attempting to
address any inconsistency between the testimony of W.F. and A.F.
and to provide an explanation of why his version of events was
likely more accurate. Appellant’s challenge to the prosecutor’s
statements that he molested his children and was guilty of the
charged offenses is likewise unavailing because the statements
were based on the evidence and were not merely the prosecutor’s
opinion. See Valentine,
98 So. 3d at 55. The postconviction court
did not err in summarily denying relief as to Ground 6.
Ground 9
As for Ground 9 and Appellant’s claim that trial counsel was
ineffective in not challenging A.F.’s trial testimony regarding
circumcision, the postconviction court set forth in part:
The Court does not find that [A.F.’s] deposition
testimony and [her] trial testimony regarding
circumcision was “wholly inconsistent.” As such, [she]
could not be impeached during her trial testimony.
That said, counsel acknowledged at the evidentiary
hearing that he could have done a better job handling the
circumcision issue. . . .
....
Nonetheless . . . the Court is not persuaded that
there was a reasonable probability that the outcome of
the trial would have changed had the jury known that
[A.F.] knew her younger [brother] was uncircumcised.
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We agree with the postconviction court’s assessment of Ground 9
and its conclusion that Appellant is not entitled to relief on this
claim.
Accordingly, we affirm the order on appeal.
AFFIRMED.
LEWIS, MAKAR, and BILBREY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Troy M. Tuten, pro se, Appellant.
Ashley Moody, Attorney General, and Robert "Charlie" Lee,
Assistant Attorney General, Tallahassee, for Appellee.
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