Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOHN WALTER GILBERT, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D19-1622 August 13, 2021 BY ORDER OF THE COURT: Upon consideration of appellant's motion for rehearing filed on June 25, 2021, IT IS ORDERED that the motion for rehearing is granted to the extent that the opinion dated June 11, 2021, is withdrawn and the attached opinion is substituted therefor. No further motions for rehearing will be entertained in this appeal. I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER. MARY ELIZABETH KUENZEL CLERK DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOHN WALTER GILBERT, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D19-1622 August 13, 2021 Appeal from the Circuit Court for Lee County; J. Frank Porter and Josephine Gagliardi, Judges. Howard L. Dimmig, II, Public Defender, and Keith W. Upson, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee; Allison C. Heim, Assistant Attorney General, Tampa; and Helene S. Parnes, Senior Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee. LABRIT, Judge. In this case, a child accused her adult relative of sexual misconduct. A jury believed the child and convicted John Gilbert of sexual activity with a child by a person in familial or custodial authority. Because the trial was capably run and the evidence presented was not so tainted that the jury could not determine whether (or not) to believe the victim's version of the operative events, we affirm. We recognize that this case is a close call on evidentiary issues, and we write to explain our ruling. Factual Background When the victim was a teenager, an estranged adult male relative (Mr. Gilbert)—with whom she had had almost no prior contact—sent her a "friend request" on Facebook. The victim was living with other relatives, at the time, but had hopped between family members' homes throughout her childhood because her parents had been out of the picture. Eventually, the relatives with whom the victim was then living allowed her to move in with Mr. Gilbert. Mr. Gilbert had been living by himself. After the victim moved in, the two shared Mr. Gilbert's home alone. The victim's boyfriend sometimes spent weekends at Mr. Gilbert's home, but the victim 2 otherwise began to settle into her new life with Mr. Gilbert, who got her a puppy and began fixing up a car for her. After a few months of living with Mr. Gilbert, the victim told her boyfriend that Mr. Gilbert was sexually abusing her. Within a day, a relative came to pick the victim up. The abuse was reported to the police. The victim confronted Mr. Gilbert about the abuse over Facebook Messenger and took screenshots of their conversation. The relative bought the victim a journal, and the victim wrote down what had happened. The victim used and read from that journal throughout her subsequent interview with the Child Protection Team. Thereafter, the State charged Mr. Gilbert with sexual activity with a child in violation of section 794.011(8)(b), Florida Statutes (2019). At trial, the State supported the abuse allegations with the Facebook message screenshots, a video of the victim's interview with the Child Protection Team, and the victim's journal. Mr. Gilbert's defense principally focused on his theory that the victim fabricated the abuse—after he and the victim had a fight—to convince her other relatives to let her move back to their home. Throughout the trial, defense counsel tried to prove this motive and 3 that the victim had a history of lying. The jury believed the victim and convicted Mr. Gilbert as charged. Analysis Mr. Gilbert challenges the trial court's admission of the Facebook message screenshots and the victim's journal into evidence. Mr. Gilbert also attacks two comments in the State's closing argument as fundamental error. Lastly, Mr. Gilbert argues that the cumulative effect of these claimed errors necessitates a new trial. We disagree and affirm in all respects. 1. Admission of the Facebook Messages Mr. Gilbert first argues, as he did below, that the Facebook message screenshots were inadmissible as unauthenticated hearsay. Before trial, Mr. Gilbert moved to exclude the messages, claiming they could have been altered because the State's exhibit was the victim's personal screenshot of the messages. He also contended that the State did not verify the messages by a subpoena to Facebook or a cell phone extraction. The trial court admitted the screenshots after the victim testified that they accurately depicted what was on her Facebook Messenger. 4 "We review a trial court's evidentiary decision for abuse of discretion, understanding that its discretion is limited by the rules of evidence and controlling decisions interpreting them." Bullington v. State, 311 So. 3d 102, 107 (Fla. 2d DCA 2020). Section 90.901, Florida Statutes (2019), requires authentication "sufficient to support a finding that the matter in question is what its proponent claims." Because "the ultimate determination of the authenticity of the evidence is a question for the fact-finder," the supreme court has "indicated that authentication for the purpose of admission is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic." Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016). While neither we nor the supreme court have ruled on the proper authentication of Facebook messages, "communications" generally can be "authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances." State v. Torres, 304 So. 3d 781, 784 (Fla. 4th DCA 2020). And "[t]he case law regarding authentication of electronic communications is evolving." Id. at 783. 5 Torres involved the authentication of messages from another social media platform, Kik. The Fourth District ruled that "the contents and distinctive characteristics of the messages, 'taken in conjunction with the circumstances' " were sufficient to authenticate a screenshot of Kik messages between the victim and the defendant. Id. at 784–85. In concluding that the State had made a prima facie case for authentication, the Torres court noted that (1) the defendant and the victim had an "extensive history of texting" over Kik; (2) the defendant's nickname was listed on the screenshots of the messages; and (3) the parties "referenced facts known only to the defendant and the victim" (a gift the defendant gave the victim and a place where the defendant sexually abused the victim) in the messages. Id. at 784. Torres is on all fours with this case. The victim and her relative testified to Mr. Gilbert and the victim's "extensive history" of communicating over Facebook Messenger. Mr. Gilbert's real name (as opposed to a nickname) and his profile picture were included in the screenshots, an identification scenario stronger than that featured in Torres. Cf. id. at 782 ("[T]he sender's profile picture did not show the [d]efendant . . . ."). Even more, the victim and Mr. 6 Gilbert referenced "facts only known by" them in the messages—the car that Mr. Gilbert was fixing up for the victim and Mr. Gilbert's frustration with transporting the victim's boyfriend back and forth for weekend visits. Torres also addresses Mr. Gilbert's contention that the messages could have been altered since they were not retrieved by a cell phone extraction or a subpoena to Facebook. The Fourth District rejected these same contentions, explaining that "any argument that the victim fabricated the messages will . . . go to the weight of the evidence, not its admissibility." Id. at 785. For these reasons, we align with our sister court and conclude that the trial court did not err in finding the State met the authentication requirement.1 1 Mr. Gilbert also challenges admission of the Facebook messages on hearsay grounds. We decline to address this issue because the trial court never ruled on the hearsay objection, and Mr. Gilbert does not argue that admission of the messages was fundamental error. See Farina v. State, 937 So. 2d 612, 629 (Fla. 2006) ("[T]he failure to obtain a ruling on a motion or objection fails to preserve an issue for appeal."); Howard v. State, 288 So. 3d 1239, 1245 n.2 (Fla. 2d DCA 2020) ("Mr. Howard has not argued that the evidence and argument amount to fundamental error, which, if it existed, would permit us to reach the issue regardless of the lack of preservation." (citing Fletcher v. State, 168 So. 3d 186, 208 (Fla. 2015))); see also Simmons v. State, 934 So. 2d 1100, 1117 n.14 (Fla. 2006) (noting that arguments not expressly included in 7 2. Admission of the Victim's Journal The trial court admitted the journal as an exhibit during the State's redirect examination of the victim. Although the trial court provided no explanation for overruling Mr. Gilbert's hearsay objection, it admitted the journal immediately after defense counsel extensively cross-examined the victim on fact-specific inconsistencies between her testimony and the journal. Mr. Gilbert challenges that ruling, arguing that the only hearsay exception that would support admission of the journal—a prior consistent statement under section 90.801(2)(b)—didn't apply because Mr. Gilbert's "entire defense" was "that [the victim]'s fabrication was not recent." The State counters that Mr. Gilbert's generic hearsay objection did not preserve this argument and that any error in admitting the journal was harmless. Mr. Gilbert's hearsay objection was sufficient to preserve this issue for appeal for two reasons. First, when a party makes a hearsay objection, a trial court is tasked with "consider[ing] all possible hearsay violations, exceptions, and exclusions"—even parties' briefing are waived); I.R.C. v. State, 968 So. 2d 583, 587–89 (Fla. 2d DCA 2007) (same). 8 exceptions that the proponent of the hearsay did not argue. Neeley v. State, 883 So. 2d 861, 864 (Fla. 1st DCA 2004). Second, "the State, as the evidentiary proponent, . . . had the burden of supplying a proper predicate to admit this evidence under an exception to the rule against hearsay." Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008) (emphasis added). Accordingly, Mr. Gilbert's generic hearsay objection was adequate to preserve his argument against applying the prior consistent statement exception. We agree with Mr. Gilbert that the journal does not qualify as a prior consistent statement. Because the victim's alleged "motive to fabricate"—her desire to move back to her prior residence— "predated" the journal, it couldn't be used to rebut Mr. Gilbert's defense theory. Bullington, 311 So. 3d at 108–09 (citing cases and holding "that a prior consistent statement is admissible only if the statement is made before the recent fabrication by the declarant or before the improper influence or motive arose" (emphasis added)); see § 90.801(2)(b). Nonetheless, we conclude—based on our decision in Bullington—that the trial court's error in admitting the journal was harmless. See Bullington, 311 So. 3d at 109 ("To show that the trial 9 court's error was harmless, the State must 'prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.' " (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986))). In Bullington, we held that the erroneous admission of a child victim's "statements concerning the abuse to the detectives" was harmless—despite the central role of the victim's credibility—for three reasons. Id. at 108, 111–13. First, the victim's report to the detectives "was unlikely to bolster her trial testimony in any material way" because "the defense theory was that [the victim] fabricated the abuse from the beginning." Id. at 112. And after a "thorough cross-examination by [defense] counsel," "the jury was either going to believe that both the [victim's] reports [to the detectives] and [her] testimony [on the stand] were true or that they were not." Id. Second, the court had already admitted the victim's report to a nurse practitioner, which was more or less the same as her report to the detectives. Id. Third, "there was significant other evidence that corroborated [the victim]'s trial testimony that she was abused." Id. at 112–13. 10 Here too, Mr. Gilbert's defense theory was that the victim fabricated the abuse—all along—so she could move back to her prior residence. Because defense counsel thoroughly questioned the victim on the abuse, the events surrounding the abuse, and then some, it certainly follows that "the jury was either going to believe that both [the victim's] [journal] and [her] testimony were true or that they were not." Id. at 112. Moreover, the trial court had already admitted the video interview with a Child Protection Team officer—which tracked the victim's statements in the journal almost exactly. Thus, as in Bullington, the jury was going to hear these statements anyway. And while Mr. Gilbert now complains that the journal was improperly admitted, defense counsel used the journal during closing argument to attack the victim's credibility by highlighting how unreliable her memory was. In short, admission of the journal was harmless error. 3. State's Closing Argument Next, Mr. Gilbert challenges two comments the State made during closing argument. Mr. Gilbert first accuses the State of impermissibly appealing to the jury's sympathy for the victim by emphasizing her vulnerability: 11 Think about what [the victim] went through when she was growing up, when she was bouncing around from house to house, the problems that she had, that she admitted to on direct and cross-examination. Think about the vulnerable state that she was in when Mr. Gilbert reached out and contacted her. Think about how she told you that she had conversations with Mr. Gilbert about everything that had happened in her life; about her childhood, about the other family member who sexually abused her, about the cuttings, about the suicide attempts, about the running away; all of these outlets that she—she said on cross-examination, she was just trying to get away from the pain. All of this making [her] vulnerable to the person that she was trying to reconnect with, to trust to have this relationship, who hadn't been in [her] life up until that point. Mr. Gilbert took advantage of that situation and took advantage of that vulnerability when he had her alone in that trailer with him. (Emphasis added.) Mr. Gilbert also takes issue with the prosecutor's comment emphasizing the victim's credibility: A year and a half [after the abuse occurred], does anyone think that [testifying to the abuse] was fun for [the victim]? Does anyone think that this is where she wants to be? What motivation is there for her to say these allegations happened in 2017, then continue on, continue on, continue on and have to come and talk about it again in front of a bunch of strangers. The reality is, because she's telling you what happened to her. She's credible. Her testimony, the video, the journal that you're going to see, it's consistent. (Emphasis added.) 12 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 closing argument . . . to determine whether the cumulative effect of any impropriety deprived the defendant of a fair trial." Johnson v. State, 238 So. 3d 726, 740 (Fla. 2018) (cleaned up). Statements are considered prosecutorial misconduct and constitute "fundamental error when, but for the misconduct, the jury could not have reached the verdict it did." Martin v. State, 311 So. 3d 778, 811–12 (Fla. 2020) (emphasis omitted), cert. denied, 141 S. Ct. 417 (2020). While prosecutors generally may not "appeal[] to the jury's sympathy for [a] victim," the first comment was not an impermissible plea for sympathy. Thomas v. State, 787 So. 2d 27, 30 (Fla. 2d DCA 2001). Looking at the trial record and the closing argument as a whole, the State's commentary on the victim's vulnerability appears to be the State's spin on Mr. Gilbert's theory 2 On this issue, Mr. Gilbert argues fundamental error. 13 of defense. See Brown v. State, 787 So. 2d 229, 230 (Fla. 2d DCA 2001) ("[W]e must look at the entire trial record and . . . 'the prosecutorial argument . . . as a whole . . . .' "). On the one hand, Mr. Gilbert claimed that the victim had a pattern of "breaking the rules," "lying," and "acting out" whenever she wanted to move to a new home, and he argued—throughout the trial—that the victim's latest allegations were just another deceptive maneuver to move back to her relatives' home. On the other hand, the State took those same facts—the victim's history of breaking rules, admission to lying in the past, and frequent moves among various relatives' homes—and put them in a different light, turning an allegedly vindictive past into a vulnerable childhood. Because an attorney is allowed to "assist the jury in analyzing, evaluating, and applying the evidence" and may even "suggest[] . . . what conclusions can be drawn from the evidence," we conclude that the prosecutor's first comment was well within bounds. Williamson v. State, 994 So. 2d 1000, 1012 (Fla. 2008); cf. Johns v. State, 832 So. 2d 959, 961–63 (Fla. 2d DCA 2002) (reversing conviction after prosecutor point-blank asked the jury to sympathize with the victim by saying "I understand that sympathy is a normal very natural human 14 response, I ask that you not forget the victim"); Brown v. State, 593 So. 2d 1210, 1211–12 (Fla. 2d DCA 1992) (reversing where prosecutor told the jury that the victim was "victimized again by having to testify . . . and have his character impugned [at trial]" and beseeched the jury to act accordingly by telling them "that they were the only ones that could give the victim back his dignity"). We agree with Mr. Gilbert that the second comment was improper. The prosecutor vouched for the victim's credibility by telling the jury that "[s]he's credible" and "she's telling you what happened to her." See, e.g., Howard v. State, 152 So. 3d 825, 829 (Fla. 2d DCA 2014) ("[I]t is error for an attorney to bolster the testimony of a witness during closing argument by vouching for his or her credibility, providing an opinion on the witness's truthfulness, . . . or otherwise placing 'the prestige of the government behind the witness.' "). That said, this single improper comment does not amount to fundamental error. Mr. Gilbert relies on Howard to argue fundamental error. In that case, this court overturned Mr. Howard's conviction for the cumulative effect of several egregious errors. Id. at 829–30. In addition to bolstering the credibility of the 15 State's star witness in closing arguments, the prosecutor in Howard lied to the jury about a plea deal at issue and scorned defense counsel's reputation, calling him a fraudulent "magician" who was trying to "dupe" the jury. Id. Because the State neither lied to the jury to bolster the victim's credibility nor tarnished defense counsel's reputation, this case is a far cry from Howard. Though the victim's credibility was central to the State's case, this comment is not enough to overturn Mr. Gilbert's conviction because (1) it was "relatively brief"; (2) it was "an otherwise capably run criminal trial"; and (3) there was other corroborating evidence against Mr. Gilbert. Berouty, 290 So. 3d at 86 (citing eleven other cases to conclude that the prosecutor's comment did not amount to fundamental error). "While we cannot condone the comments that this assistant state attorney made during closing statements," we conclude that the prosecutor's comment did not constitute fundamental error for the same reasons we so concluded in Berouty. Id. 4. Cumulative Error Finally, Mr. Gilbert seeks a new trial for the cumulative effect of the aforementioned errors. Under the cumulative error doctrine, "[w]here multiple errors are found, even if deemed harmless 16 individually, the cumulative effect of such errors may deny to defendant the fair and impartial trial that is the inalienable right of all litigants." Delhall v. State, 95 So. 3d 134, 169 (Fla. 2012) (cleaned up). While two harmless errors occurred here—the admission of the journal and the prosecutor's fleeting comment on the victim's credibility during closing argument—Mr. Gilbert's claim of cumulative error still fails. As explained above, any effect these errors had on the jury was minimal, at best. And taken together, these errors are neither egregious nor do they vitiate an otherwise fair and impartial trial. Affirmed. SILBERMAN and BLACK, JJ., Concur. 17