Berouty v. State
Decision Date | 07 February 2020 |
Docket Number | Case No. 2D18-2251 |
Citation | 290 So.3d 82 |
Parties | Stephen BEROUTY, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney Defender, Tampa, for Appellee.
BY ORDER OF THE COURT.
Appellant's motion for rehearing is granted. The prior opinion dated November 13, 2019, is withdrawn, and the attached opinion is issued in its place, identical to the original opinion except for the addition of footnote 2, which addresses Appellant's argument in his motion for rehearing. Appellant's motion for rehearing en banc is denied. No further motions for rehearing will be entertained.
The State charged Stephen Berouty with sexual battery with a deadly weapon. A jury found Mr. Berouty guilty of the lesser-included offense of sexual battery. Although the prosecuting attorney made improper remarks during closing statements, we do not believe those comments constituted fundamental error.
Mr. Berouty and a young woman we identify in this opinion as C.G. met outside of a lounge in the early morning hours of June 12, 2003. Both apparently had been drinking. C.G. testified that she had noticed a man walking on the street and asked if he needed a ride home. He accepted; they went to a Taco Bell and then to a boat ramp on Lake Howard. There, she and the man kissed in her car, as well as on a nearby picnic bench. At some point, the man tried to put his hands up her shirt. She pushed his hands away and said "no," but he continued to press himself upon her. According to C.G., the man then held a knife to her throat and had forcible intercourse with her against her will. When he had finished, the man fled, and she drove herself to a friend's house who called the police.
C.G. was interviewed by law enforcement officers and then taken to a rape crisis center, where she underwent a medical examination. During the examination, the examining nurse (who would later testify at trial) identified a one-and-three quarter inch red mark on C.G.'s neck and recalled that C.G. told her the assailant had put his knife to her neck. The nurse confirmed that based on her medical training the wound appeared to be consistent with C.G.'s statement to her. After the medical examination, though, the investigation into C.G.'s allegations seemed to have stalled.
Then, in 2016, the Winter Haven Police Department contacted C.G. and informed her that a DNA sample that had been obtained during her medical examination had produced a match—Mr. Berouty's semen had been identified from the DNA swab. The State charged Mr. Berouty and the case proceeded to trial on April 30, 2018. At trial, C.G. relayed the facts described above but conceded that she did not remember much from the night of the incident. She was also cross-examined extensively about purported inconsistent statements between her statements, her deposition, and her trial testimony.
Mr. Berouty testified in his trial and recalled the events of June 12, 2003, somewhat differently. According to Mr. Berouty's trial testimony, he first met C.G. inside the lounge, where they had been drinking and playing games until C.G. offered him a ride home. He said that they stopped at a convenience store to purchase more alcohol and then went to a subdivision that was under construction in order to drink. He testified that while there C.G. performed oral sex upon him and that they then had consensual sexual intercourse. Mr. Berouty denied ever carrying a knife, having a knife on his person that night, or ever holding C.G. at knifepoint.
Thus, Mr. Berouty's theory of defense was that he and the victim had engaged in consensual sex. During closing argument, the defense focused on the victim's credibility, her memory, and the conflict in testimony. The defense also discussed the lack of any investigation conducted by law enforcement at the time C.G.'s alleged rape was reported.
In the State's closing argument, the prosecuting attorney informed the jury that their job was "to decide whose story is more credible, who are we going to believe" and that a conviction is "going to depend on who you believe." Then in rebuttal, the assistant state attorney made the following comments:
For whatever reason, no objection was made to any of these remarks. After the jury's return of a guilty verdict, Mr. Berouty filed a motion for new trial, arguing that the prosecutor had improperly shifted the burden of persuasion to the defense, misstated the law, and denigrated Mr. Berouty's assertion of a defense. The trial court denied the motion, and Mr. Berouty now appeals.
Given defense counsel's failure to contemporaneously object to the State's comments, we can only review the trial court's denial of Mr. Berouty's motion for fundamental error. See Randolph v. State, 853 So. 2d 1051, 1068 (Fla. 2003) ( .2
We are very much troubled by the prosecutor's closing statements in Mr. Berouty's trial. There can be no doubt that the State's spaghetti-throwing, smoke-and-mirrors, abusive relationship "arguments" were improper in this criminal prosecution. See, e.g., Cardona v. State, 185 So. 3d 514, 523 (Fla. 2016) ( ; Zack v. State, 911 So. 2d 1190, 1205 (Fla. 2005) ( ; Ruiz v. State, 743 So. 2d 1, 9 (Fla. 1999) ( ); Crew v. State, 146 So. 3d 101, 109 (Fla. 5th DCA 2014) ; D'Ambrosio v. State, 736 So. 2d 44, 48 (Fla. 5th DCA 1999) (); Redish v. State, 525 So. 2d 928, 931 (Fla. 1st DCA 1988) (). In its answer brief, the State suggests that the prosecutor's comments "must be considered in their context." We have done so. If anything, the context of this kind of criminal prosecution should have restrained a prosecuting attorney from...
To continue reading
Request your trial-
Gilbert v. State
...added.) Because Mr. Gilbert did not object to these comments at trial, we review them for fundamental error.2 See Berouty v. State , 290 So. 3d 82, 84 (Fla. 2d DCA 2020). "In determining whether a prosecutor's closing statements constitute fundamental error, this court examines the entire c......
-
Gilbert v. State
...consistent. Because Mr. Gilbert did not object to these comments at trial, we review them for fundamental error.2 See Berouty v. State, 290 So. 3d 82, 84 (Fla. 2d DCA 2020). "In determining whether a prosecutor's closing statements constitute fundamental error, this court examines the entir......
-
Summation
...evidence against defendant, so the single improper comment was not enough to overturn defendant’s conviction. Berouty v. State , 290 So. 3d 82 (Fla. Dist. Ct. App. 2020). Statements made by assistant state attorney during closing argument, including allegations that defense had engaged in “......