DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PETERSON BALTAZARE SIMBERT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-1633
[August 23, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No.
14016476CF10A.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
LEVINE, J.
Appellant was charged with three counts of lewd or lascivious battery
on a child over twelve years old. After the victim testified, the state
amended the information, over appellant’s objection, to change one count
from oral to digital penetration. Thus, we are asked to determine if the
mid-trial amendment constituted prejudice to appellant. We find that in
these circumstances, where the amendment changed an “essential
element” of the charged crime and was not merely a clarification of some
details, the amendment prejudiced appellant and thus we reverse count
III. We further find the state’s closing argument improperly asked the jury
to determine if the victim was lying as the test for determining appellant’s
guilt, but we nevertheless affirm because the issue was not properly
preserved. We affirm appellant’s other arguments without discussion.
The state filed a criminal information alleging three counts of lewd or
lascivious battery of a child over twelve years of age but less than sixteen
years of age. Count I alleged that appellant engaged in sexual activity with
the victim by “causing his penis to penetrate or unite with [the victim’s]
vagina.” Count II alleged that appellant engaged in sexual activity with
the victim by “causing his sexual organ to penetrate or unite with [the
victim’s] mouth and/or tongue.” Count III alleged that appellant engaged
in sexual activity with the victim by “causing his mouth and/or tongue to
penetrate or unite with [the victim’s] sexual organ.” None of the counts in
the filed criminal information alleged digital penetration.
At trial, the victim testified that while appellant was living with her
family, he woke her up in the middle of the night and led her out into the
hallway. Appellant then placed his hand under her underwear and
touched her vagina. After that first incident, appellant put his fingers
inside her vagina on five or six occasions. Appellant tried to put his penis
inside of her but she did not know if he succeeded. Appellant told her that
“it wasn’t going to hurt” and “that it never went in.” The victim performed
oral sex on appellant two times, and appellant performed oral sex on her
more than five times. After appellant moved out, he continued to
communicate with the victim. Appellant told her to keep their sexual
relationship a secret because he could get in trouble for it.
During the trial, and after the victim’s testimony on direct, the state
moved to amend count III of the information, which had alleged oral
penetration, to allege that appellant engaged in sexual activity with the
victim by causing “[a]n object, to wit, his finger(s) to penetrate the [victim’s]
vagina.” The state, however, did not seek to change the statute alleged to
have been violated, section 800.04(4)(a). Defense counsel objected,
arguing that the amendment would change an element of the crime and
would prejudice the defense. The trial court overruled the objection and
permitted the amendment. The jury ultimately found appellant guilty as
charged of all counts.
On appeal, appellant argues the trial court erred in allowing the state
to amend count III of the information during trial. Appellant claims that
by amending the count from oral to digital penetration, the state alleged a
completely different means of committing sexual battery and effectively
filed a new charge.
A trial court’s ruling allowing the state to amend the information is
reviewed for abuse of discretion. Jean v. State, 11 So. 3d 421, 422 (Fla.
4th DCA 2009). “[T]he state may substantively amend an information
during trial, even over the objection of the defendant, unless there is a
showing of prejudice to the substantial rights of the defendant.” Green v.
State, 728 So. 2d 779, 780 (Fla. 4th DCA 1999). Prejudice occurs where
the amendment “constitutes the charging of a different crime” or
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“change[s] the ‘essential elements of the charged offense.’” Toussaint v.
State, 755 So. 2d 170, 171-72 (Fla. 4th DCA 2000) (citation omitted). “[A]n
amendment that substantively alters the elements of the crime charged is
per se prejudicial.” Wright v. State, 41 So. 3d 924, 926 (Fla. 1st DCA 2010).
In contrast, an “amendment is permissible when it merely clarifies some
detail of the existing charge and could not reasonably have caused the
defendant any prejudice.” Green, 728 So. 2d at 781. See also Toussaint,
755 So. 2d at 171-72 (finding no prejudice in amending the information
during trial to change the defendant’s age because it was not an element
of the crime of sexual battery).
In the instant case, count III of the original information charged
appellant with oral penetration, while count III of the amended information
charged appellant with digital penetration. Both the original and amended
information alleged a violation of section 800.04(4)(a). Section
800.04(4)(a), Florida Statutes (2013), provides that a person “commits
lewd or lascivious battery” when he “[e]ngages in sexual activity with a
person 12 years of age or older but less than 16 years of age.” “Sexual
activity” is defined as “the oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetration of
another by any other object.” § 800.04(1)(a), Fla. Stat. (2013).
We find the trial court erred in permitting the amendment. Although
the amendment did not change the crime charged, that being section
800.04(4)(a), the amendment did change an essential element of the
charged offense from oral to digital penetration. See Toussaint, 755 So.
2d at 171-72. Further, the amendment did not merely clarify some detail
of the existing charge. See Green, 728 So. 2d at 781.
In Green, this court found harmful error in permitting mid-trial
amendment to allege a different victim in a charge for battery of a law
enforcement officer. This court found this was not an amendment but
rather “the filing of a new and entirely different offense.” Id. The court
explained, “This is not a case of an amendment which merely clarified or
corrected a simple misnomer,” “[n]or is it a case of simply correcting the
name of the victim where only a single officer was involved and no one,
including the defendant, reasonably could have been misled as to the
identity of the victim.” Id. By permitting the amendment, the trial court
allowed the jury to find the defendant guilty of “a crime for which he had
not been charged and for which he was not on trial.” Id. See also
Hutchinson v. State, 738 So. 2d 473, 474 (Fla. 4th DCA 1999) (finding
harmful error in permitting the state to amend the information, after a
motion for directed verdict, to name a different police officer in the charge
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for resisting arrest without violence).
In Green and Hutchinson, like in the present case, the amendment did
not change the statute, but substituted an essential element. In Green,
the amendment substituted one law enforcement officer for another. In
the present case, the amendment substituted oral penetration with digital
penetration. Like in Green and Hutchinson, the mid-trial amendment
constituted “the filing of a new and entirely different offense,” and was not
merely clarification of details. Green, 728 So. 2d at 781. See also Blue v.
State, 876 So. 2d 1273, 1274 (Fla. 2d DCA 2004) (holding the trial court
erred in allowing an amendment to the charging document that “was not
a mere correction of a scrivener’s error but instead was a change to an
element of the offense”); Diaz v. State, 38 So. 3d 791, 793 (Fla. 4th DCA
2010) (reversing where the state amended the information, after defense
counsel moved for a judgment of acquittal, to allege oral union instead of
digital penetration).
Appellant also argues the trial court abused its discretion in overruling
defense counsel’s objections to improper arguments during closing
argument. “[A]ttorneys are afforded wide latitude in presenting closing
arguments. The control of these comments is within the trial court’s
discretion, and an appellate court will not interfere unless an abuse of
such discretion is shown.” Dufour v. State, 905 So. 2d 42, 64 (Fla. 2005)
(citation omitted).
During rebuttal closing argument, the state argued:
The judge is going to read you the law. One of the things
that he’s going to tell you is that it’s not the number of
witnesses or the number of exhibits that the state attorney,
that’s me, puts into evidence, it is the quality. I can prove a
case with just one witness just on their testimony. If you
believe [the victim] he sits here guilty.
Defense counsel objected on the ground of improper characterization, and
the trial court overruled the objection.
The state also argued:
But let’s give you that and say she is a pathological liar, she
lied on the stand, she lied to the nurse, she lied to everybody,
and she lied about the injury to her, and then she deleted all
of the messages and she tried to somehow railroad him into
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this because she is a criminal mastermind and not a teenage
girl who was sitting up here crying while she tried to recount
to you one of the worse things that ever happened. If you
believe all of that you should walk him. If you believe all of
that, if all of that is true [appellant] is either the unluckiest
man alive or he is guilty.
Defense counsel objected based on improper argument, and the trial
court overruled the objection.
On appeal, appellant asserts these arguments constituted improper
burden-shifting because they asked the jury to determine who was lying
as the test for deciding if appellant was guilty. Initially, appellant’s
argument is not preserved. With respect to the first closing argument
challenged on appeal, the objection raised below, that being improper
characterization, is different from the argument raised on appeal,
improper burden-shifting. “In order to preserve an issue for appeal,
counsel must preserve the issue by making a specific objection to the
admission of evidence on the same grounds as raised on appeal.” Castro
v. State, 791 So. 2d 1114, 1115 (Fla. 4th DCA 2000).
With respect to the second closing argument challenged on appeal, the
objection of “improper argument” was insufficient to preserve the issue for
appeal. See Braddy v. State, 111 So. 3d 810, 850 (Fla. 2012) (finding that
objection on grounds of improper argument was “nonspecific” and
insufficient to preserve argument for appeal); Jones v. State, 760 So. 2d
1057, 1058 (Fla. 4th DCA 2000) (holding that objection on grounds of
“[i]mproper argument” “did not apprise the trial court of the precise
argument made here”).
These arguments, though unpreserved, were inappropriate and thus
error. As the supreme court has stated:
The standard for a criminal conviction is not which side is
more believable, but whether, taking all the evidence into
consideration, the State has proven every essential element of
the crime beyond a reasonable doubt. For that reason, it is
error for a prosecutor to make statements that shift the
burden of proof and invite the jury to convict the defendant
for some reason other than that the State has proved its case
beyond a reasonable doubt.
Gore v. State, 719 So. 2d 1197, 1200 (Fla. 1998); see also Clewis v. State,
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605 So. 2d 974, 975 (Fla. 3d DCA 1992) (“The test for reasonable doubt is
not which side is more believable, but whether, taking all of the evidence
in the case into consideration, guilt as to every essential element of the
charge has been proven beyond a reasonable doubt.”). For this reason, it
is “impermissible [to] . . . ask[] the jury to determine who was lying as the
test for deciding if appellant was not guilty.” Northard v. State, 675 So. 2d
652, 653 (Fla. 4th DCA 1996).
The comments in the instant case are similar to those which have been
found improper. In Gore, the supreme court reversed where the prosecutor
argued that if the jury believed defendant was lying, he was guilty. 719
So. 2d at 1200-01. Similarly, in Northard, this court reversed where the
prosecutor argued that if the jury believed the defendant, it must conclude
the police officers were lying. 675 So. 2d at 653. See also Freeman v.
State, 717 So. 2d 105, 106 (Fla. 5th DCA 1998) (finding improper burden-
shifting where the prosecutor told the jurors that if they believed the police
officers instead of the defendant, then they should find the defendant
guilty). We do not reverse on this particular issue because it was not
properly preserved. We remind prosecutors again to refrain from
arguments such as those in the instant case.
In sum, we affirm appellant’s convictions for counts I and II, reverse
appellant’s conviction for count III, and remand for the trial court to vacate
his conviction and sentence on that count.
Affirmed in part, reversed in part, and remanded.
CONNER, J., and SMALL, LISA, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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