Nebergall v. State
| Decision Date | 06 November 2019 |
| Docket Number | No. 4D18-2327,4D18-2327 |
| Parties | JASON BRYON NEBERGALL, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No. 502016CF011962A.
Michael Salnick of Law Offices of Salnick & Fuchs, P.A., West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
The defendant appeals from his convictions on one count of attempted sexual battery (victim eighteen years of age or older) while in possession of a weapon, and one count of simple battery.
The defendant primarily argues the trial court erred in denying his motion for mistrial after the alleged victim intentionally violated the trial court's clarified order on a motion in limine. The order provided, in pertinent part, that any testimony regarding law enforcement's efforts to identify the DNA found on the alleged victim's buttocks could only indicate that such efforts were "inconclusive." However, during the alleged victim's cross-examination, in response to one of defense counsel's questions not related to DNA, the alleged victim ended her answer by exclaiming,
We agree with the defendant that the trial court erred in denying his motion for mistrial. The alleged victim's comment deprived the defendant of a fair trial, reasonably may have materially contributed to his conviction, and was so harmful or fundamentally tainted as to require a new trial. We also conclude that a curative instruction would not have remedied this violation. We are compelled to reverse and remand for a new trial.
We present this opinion in five parts:
At the time of this incident, the defendant was a sheriff's deputy. Early one morning around 5:30 am, he and two other deputies were dispatched to the alleged victim's home to investigate an altercation between her and her landlord. The altercation had been investigated by other deputies earlier in the night.
The defendant and the other two deputies arrived at the alleged victim's home in separate vehicles. By the time they arrived, the landlord had left the scene. The alleged victim was standing outside. The defendant introduced himself by his first name, and then spoke to her away from the other deputies. She told the defendant that her landlord kept coming to her home and threatening her.
The defendant told the alleged victim that he was not trying to downplay her story, but he did not intend to write a report because his shift was ending. He offered to come back and check on her another time. She responded that would be okay. The defendant and the other deputies then drove away in separate vehicles.
Just minutes later, the defendant returned to the alleged victim's home. The defendant did not notify the other two deputies or dispatch that he was doing so. When the defendant, still in uniform, got to the alleged victim's home, he knocked on the door, and identified himself as "PBSO." The alleged victim came outside.
What allegedly happened next became the subject of the charges and trial.
The alleged victim testified in pertinent part as follows. When she came outside, the defendant said, "I told you I was gonna come back and check on you." The defendant then grabbed her by the hair and kissed her on the mouth. He said, "Too much light here," and led her around to the back of her home. When they got around back, he said, "I had to come back and check on these big a** t******." He pulled up her top, and sucked on her left breast. Then he started kissing the left side of her neck. He said She did not respond. He put his hand down her shorts, and touched her vagina. He grabbed her right hand, unzipped his pants, pulled out his penis, and said "touch it," but she did not. He told her to "give me h***," but she said no. He turned her around, pulled down her shorts, and rubbed his penis on her buttocks. He tried to penetrate his penis between her buttocks, but he said, He then said, and left her home.
The alleged victim went back inside her home and notified her roommates. She called the sheriff's office to get the defendant's last name and badge number. She did not immediately report the incident itself to the sheriff's office, but did so later that day at the urging of her roommates and family. When she reported the incident, she initially would not provide her name because she feared for her safety.
The alleged victim was directed to a hospital's sexual assault treatment center, where DNA samples were taken from her right hand fingernails, the upper and lower areas between her buttocks, the left side of her neck, and her left breast at the nipple and areola. A DNA sample was not taken from the alleged victim's vagina because she informed the treating nurse that she had not been vaginally penetrated.
The alleged victim ultimately identified herself and provided statements to the treating nurse, and to sheriff's office detectives from the sexual assault division who were sent to the hospital to investigate.
The next day, the detectives pulled the GPS records of the defendant's location from the previous night. The GPS records showed that when the defendant returned to the alleged victim's home by himself, he had remained at the home for approximately eleven minutes. The detectives also obtained a search warrant for the defendant's DNA and uniform.
The detectives went to the defendant's neighborhood to interview him about the incident. One of the detectives took the lead. That detective read the defendant his Miranda rights. The defendant responded that heunderstood his rights. He then stated he did not know what was going on, but he agreed to be interviewed.
The detective asked the defendant what occurred when he responded to the alleged victim's home. The defendant said that he and two other deputies were dispatched to the alleged victim's home to investigate the earlier altercation between the alleged victim and her landlord. The alleged victim did not want her landlord to come back to her home. She described her landlord's vehicle. The defendant told the alleged victim to change the lock on her home, and if her landlord came back, to call the sheriff's office. The defendant and the other deputies then left. The defendant told the detective that as he was leaving the neighborhood, he saw a vehicle fitting the description of the landlord's vehicle turn into the neighborhood. The defendant turned around and drove back by the alleged victim's home, but the vehicle he saw was not in the area. The defendant first told the detective that the alleged victim was standing outside of her home. The defendant then told the detective that he knocked on the alleged victim's door. The defendant said he asked the alleged victim if her landlord had come back. The alleged victim said no. The defendant said he then talked to the alleged victim for a couple minutes, and then he left. The detective asked the defendant, "Did you touch her at all?" The defendant responded "No." The detective then asked, "Did she touch you?" The defendant again responded "No." The interview then ended.
The detectives obtained DNA samples from the defendant. After obtaining test results comparing the DNA profiles from the alleged victim's body to the defendant's DNA profile (discussed further below), the detectives arrested the defendant.
The state ultimately charged the defendant with three counts: (1) attempted sexual battery (victim eighteen years of age or older) while in possession of a weapon, for the defendant's penis having union with the alleged victim's anus or vagina; (2) simple battery for touching her vagina; and (3) simple battery for touching her breasts.
At trial, the alleged victim and the detectives testified consistently with the summaries provided above.
The defendant chose to testify at trial, and testified as follows. After he returned to the alleged victim's home, he knocked on her door, and identified himself as a sheriff's deputy. The alleged victim opened the door and came outside. The defendant told her he had come back because, ashe was leaving the neighborhood, he had seen a vehicle fitting the description of the landlord's vehicle entering the neighborhood. The defendant asked the alleged victim if she had any further issues or if anybody came back in the time since he and the other deputies left her home. She said no. The defendant again told her to change the lock on her home, and that if she had any further issues, to contact the sheriff's office. At that point, the alleged victim asked, "Would you like to pat me down?", which he thought was strange. The defendant told her no, and to have a good night. The alleged victim then pulled up her top to her neck, exposing both breasts, and asked "Are you sure you don't want to pat me down for weapons?" The defendant was shocked. He told her no again and turned to walk back to his vehicle. Then he felt a nudge on his right forearm. He immediately turned around and saw her with her top still pulled up with both breasts exposed as she leaned into him. The defendant put his hands up immediately and pushed her back, touching one of her breasts in the process. He got in his vehicle and went home.
The defendant testified he did not notify a supervisor about the incident, and did not write a report about the incident. When defense cou...
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