Concepcion v. State, 3D14–2854.

• Decision Date: 02 March 2016
• Docket Number: No. 3D14–2854.,3D14–2854.
• Citation: 188 So.3d 5
• Parties: Hernan CONCEPCION, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

188 So.3d 5

Hernan CONCEPCION, Appellant,

v.The STATE of Florida, Appellee.

No. 3D14–2854.

District Court of Appeal of Florida, Third District.

March 2, 2016.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.

Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

ROTHENBERG, J.

Hernan Concepcion ("the defendant") raises the following three claims in appealing his convictions and sentences for lewd and lascivious molestation of a child under the age of twelve, kidnapping of a child, and lewd and lascivious exhibition (of his penis): (1) the trial court abused its discretion by limiting the defendant's cross examination of the victim's mother; (2) the trial court erred by overruling defense objections to portions of the State's closing argument, which the defendant claims denigrated his defense; and (3) the sentence was vindictive. Because each of these claims are refuted by the record and/or lack merit, we affirm.

I. The evidence

The State alleged that the child ("VDR") was sexually molested by the defendant in May 2010 in the defendant's apartment during a barbecue that VDR and her mother were attending at the apartment complex where VDR, her mother, and the defendant were living. The defendant's defense at trial was that VDR's mother was a desperate woman who fabricated the allegations and convinced VDR to "go along" with the allegations to get back at (1) the mother's husband, who left the mother for another woman, and (2) the defendant, who refused to allow VDR and the mother, who were facing eviction, to move in with the defendant.

At trial, the jury learned that VDR and her mother had been abandoned by her husband, and that he was not providing them with any financial support. As a result, VDR and her mother were facing eviction from their apartment unit. Defense counsel claimed that after the mother's husband had left her, the mother, who was a desperate woman, sought comfort from the defendant, who resided in the same apartment complex as VDR and her mother, and eventually the defendant and the mother started to date. Although the defendant did not testify, defense counsel claimed, without any evidentiary support, that the mother, who "was on the verge of eviction," asked the defendant if she could move in with him and the defendant said "no."

VDR's mother testified that after her husband left her, she had sex with the defendant, and although their sexual relationship had ended, they remained friends. In May, 2010, during a barbecue at their apartment complex, the mother lost sight of VDR and went into the defendant's apartment to search for her. The defendant had left the front door of his apartment open to allow the neighbors attending the barbecue to use his bathroom. The mother found VDR in the bathroom standing on the toilet with her jeans and panties pulled down facing the defendant, who had his penis in his hand. The mother grabbed her daughter, and as she was leaving the defendant's apartment, the defendant kneeled down, asked the mother for forgiveness, and requested that she not tell anyone. An hour and a half later, VDR's mother called the police.

Lazaro Cortes, who was also at the apartment complex at the time, testified that he saw VDR's mother crying in the defendant's apartment with the defendant kneeling in front of the mother. After the mother left, the defendant, who appeared nervous, told Mr. Cortes that he had done something bad, but he did not tell Mr. Cortes what he had done.

VDR, who was four years old when these crimes were committed, and eight years old at trial, testified by closed-circuit television. VDR testified that she asked the defendant for a drink during the barbecue, the defendant took her into his apartment, sat her on the kitchen counter, pulled her pants down and touched her "pee pee." The defendant then carried VDR, with her pants still pulled down, into the bathroom, pulled down his zipper, and showed her his "pee pee."

Officer Jay Desai and Detective Azeez Mansour testified that when they responded to the mother's call and made contact with the defendant, the defendant appeared as though he had been crying, said he knew why they were there, and began apologizing.

II. The errors claimed by the defendant on appeal

A. Limiting the defendant's cross-examination of the mother

The defendant's defense at trial was that the mother was a desperate woman who fabricated the evidence to get back at her husband for leaving her and the defendant for not allowing her to move in with him. Although the trial court permitted defense counsel to elicit testimony from VDR's mother on cross-examination about how her husband abandoned her and VDR, failed to support them, and left them destitute and in dire straits and on the verge of being evicted, the trial court did not allow defense counsel to elicit testimony that the mother's husband had left her for another woman.

A trial court's ruling on the admissibility of evidence is reviewed under the abuse of discretion standard. Williams v. State, 967 So.2d 735, 747–48 (Fla.2007). Evidence that is relevant to the defendant's theory of defense and questions which probe a witness's credibility are subject to the balancing test set forth in section 90.403, Florida Statutes (2014), which provides that relevant evidence is nonetheless inadmissible if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." See also Jackson v. State, 25 So.3d 518, 527 (Fla.2009).

The trial court found that the reason why the mother's husband left her was wholly collateral to the issue of whether the mother fabricated what happened to incriminate the defendant. We agree. In order for evidence to be relevant, it must have a logical tendency to prove or disprove a fact which is of consequence to the outcome of the action. Gibbs v. State, 394 So.2d 231, 232 (Fla. 1st DCA 1981). Whether the mother's husband left her for another woman bears no logical nexus as to whether the mother fabricated evidence against the defendant, who had no relationship with the mother's husband. Conversely, testimony regarding the mother's relationship with the defendant, her emotional and financial condition, any prejudice or bias she may have had against the defendant, and her motive to manufacture evidence against the defendant, were relevant and properly admitted by the trial court. Accordingly, we find that the trial court did not abuse its discretion by precluding defense counsel from delving into the fact that the mother's husband left her for another woman.

B. Whether the State denigrated the defense during closing arguments

We find absolutely no support in the record for this claim. The defense repeatedly told the jury that the mother was a desperate woman who had no emotional or financial support, had no income, and was facing eviction, and therefore, she fabricated the evidence to get back at both her husband and the defendant. For example, defense counsel argued that the mother "decided to perpetuate a lie and perpetuate a story" out of desperation; "This is a calculated, meaningful plot that the mother has unfolded for the past four years. This was something out of desperation"; "We know that this is a story. We know that this is a sad fable from the mother herself"; "She makes up a story; a terrible story"; and how do we know "that this was a story that's been concocted?"

The defendant claims that the State's closing argument, which was in response to the defense's closing argument, denigrated the defense. The record, however, demonstrates that the State's...