FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2022-2485
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RENE ELMER RIVAS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Bay County.
Timothy Register, Judge.
December 6, 2023
NORDBY, J.
A jury found Rene Elmer Rivas guilty of (1) sexual battery on
a person less than twelve years old and (2) lewd or lascivious
molestation. The trial court sentenced him to life imprisonment.
Rivas now appeals, and we affirm.
At trial, the victim testified that when she was seven years
old, Rivas molested and raped her while she was in his care. On a
separate occasion, also when the victim was seven years old, Rivas
forced her to perform oral sex on him.
About three and a half years after the incidents, the victim
confided in her friend about the sexual abuse. The friend
persuaded the victim to tell her mother. The mother contacted the
authorities, and Rivas eventually faced trial.
I.
On appeal, Rivas argues that two testimonial statements, one
from the friend and the other from Nurse Practitioner Natasha
Woodham, were unfairly prejudicial and vitiated the legitimacy of
the entire trial. We disagree.
The first statement that Rivas challenges is the friend’s, who
testified for the State:
[The State]: Do you know if [the victim] had told her mom
at that point?
[Friend]: She had told me that she never told anyone.
[The State]: How did you feel about that?
[Friend]: It honestly hurt me, because I know that,
through my experiences that I’ve had with multiple men
in my youth, it’s hard to open up to someone, especially
in Hispanic communities, it’s very normalized behavior
upon men.
Defense counsel did not object. On appeal, Rivas argues that the
testimony prejudiced him because it characterized child
molestation as normalized behavior among men like Rivas.
Since the court admitted the statement without objection, the
issue is unpreserved, and fundamental error analysis applies.
Serrano v. State,
279 So. 3d 296, 301 (Fla. 1st DCA 2019).
Fundamental error is an error so severe that it reaches “into the
validity of the trial itself to the extent that a verdict of guilty could
not have been obtained without the assistance of the alleged error.”
Knight v. State,
286 So. 3d 147, 151 (Fla. 2019) (quoting Brown v.
State,
124 So. 2d 481, 484 (Fla. 1960)).
The underlying premise of Rivas’ argument is questionable.
He asserts that the friend characterized child molestation as
normalized behavior among men like Rivas. But the friend did not
say “child molestation” nor name Rivas when she mentioned
“normalized behavior.” So the record does not support Rivas’
contention.
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But even if Rivas’ assertion is fair, his legal argument still
fails. He argues that the friend’s testimony was unfairly
prejudicial. To amount to unfair prejudice, the testimony must
have “an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” Brown v.
State,
719 So. 2d 882, 885 (Fla. 1998) (quoting Old Chief v. United
States,
519 U.S. 172, 180 (1997)). Rivas does not identify the
“improper basis” suggested by the testimony, how the testimony
may have unduly encouraged a decision on that improper ground,
nor any rule of evidence that would preclude the statement’s
admission.
Even if the testimony were prejudicial, its admission would
still fall short of fundamental error. The record does not reveal that
Rivas would have been acquitted without this specific testimony.
Considering the stronger evidence throughout the trial (such as
the victim’s direct testimony about what occurred when she was
seven years old), the friend’s attestation alone does not appear to
have sealed Rivas’ fate. Without showing that he could not have
been convicted but for the alleged error, Rivas fails to demonstrate
fundamental error. Knight, 286 So. 3d at 151.
II.
Next, Rivas challenges the statement of Nurse Practitioner
Woodham, who conducted a medical examination on the victim.
The examination disclosed a tear of the victim’s hymen:
[The State]: So, your opinion is that this injury was
occurred from some penetrating force?
[Woodham]: That’s correct.
[The State]: Is there any significance to the fact that you
found this injury in [the victim]?
[Woodham]: Yes. So, as I said before, I’ve been at the
Children’s Advocacy Center since 2015 and I’ve done a lot
of these exams. Most children that I do these genital
exams on, have no injuries, even when we know that
there’s been something happened to them, either video or
someone’s walked on the act happening. Most of these
children, probably over 90 percent of them do not have
injuries to their genitalia at all because of the nature of
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the vagina and how much it can stretch whenever
injuries happen to it. So, the fact that she had an injury
is significant. Out of all the exams that I’ve done, I
probably only have maybe two handfuls of children that
have had a transection to their hymen.
Defense counsel did not object. On appeal, Rivas argues that the
testimony was unduly prejudicial because any reasonable juror
would develop an affinity for the victim after hearing that “the
seven-year-old’s vagina was penetrated with such force that her
hymen was torn.” That, he says, could have “tipped the scales” in
the State’s favor.
Rivas correctly asserts that the jury may have found this
testimony emotionally charging. That is true of nearly any
evidence pointing to a child sex crime. Yet juries are generally
allowed to consider any evidence that tends to prove a material
fact. See §§ 90.401–.402, Fla. Stat. (2022). Woodham’s testimony
about the victim’s physical examination supported the State’s case.
Rivas supplies no authority that would disallow the testimony nor
any “improper basis” it could have induced.
III.
To win on these unpreserved issues, Rivas would have to
demonstrate fundamental error. None of Rivas’ arguments
establish that the trial court committed any error, much less
fundamental error. We affirm.
AFFIRMED.
ROBERTS and WINOKUR, 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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Jessica J. Yeary, Public Defender, and Richard M. Bracey III,
Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Daren L. Shippy, Assistant
Attorney General, Tallahassee, for Appellee.
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