Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT GREGORY GREEN, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D2024-1803 September 4, 2026 Appeal from the Circuit Court for Pinellas County; Julie L. Sercus, Judge. Blair Allen, Public Defender, and Andrea Flynn Mogensen, Special Assistant Public Defender, Bartow, for Appellant. James Uthmeier, Attorney General, Tallahassee, and Nicole Rochelle Smith, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. Gregory Green appeals his judgment and sentences after being found guilty by jury of sexual battery, simple battery, and incest. Because the admission of inadmissible evidence and multiple improper statements by the prosecutor at trial amount to fundamental error, we reverse Green's judgment and sentences for sexual battery and battery and remand for a new trial for those alleged crimes. We affirm Green's judgment and sentence for incest based on defense counsel's acknowledgment to the jury, with Green's approval, that the State had proved that Green was guilty of incest and should be convicted of that crime.1 Green was charged with three counts of sexual battery, one of which was dismissed prior to trial, and one count of incest, all involving L.L., his biological niece. The charges stemmed from incidents occurring in Green's van. The State alleged and sought to prove that Green forced his niece to perform oral sex on him and that he had vaginal intercourse with her against her will. The defense acknowledged that Green should be found guilty of incest. However, the defense contended that Green and L.L. had engaged in consensual sex, that the physical evidence was inconsistent with sexual battery, and that L.L.'s testimony was inconsistent and not credible. Green was convicted of one count of sexual battery, one count of the lesser included offense of battery, and one count of incest. The court sentenced him to twelve years' imprisonment followed by three years of sex offender probation for his sexual battery conviction, a concurrent 95.55 months' imprisonment for his incest conviction, and time served for his battery conviction. I. Inadmissible Evidence At trial, the State entered into evidence a steak knife found in a small, recessed area in Green's van along with two sealed, unused condoms found inside the van. Notably, there was no evidence presented at trial that a knife or condoms were used in or connected to the commission of the crimes. Although this evidence was unrelated to the charged crimes, Green's counsel did not object to their admission. Green 1 Green raises multiple issues on appeal. Because two require reversal, we do not address the other issues. 2 now argues that the evidence was irrelevant and that the admission of these items was used as improper character evidence or propensity evidence and constitutes fundamental error. "Fundamental error is the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Dufour v. State, 905 So. 2d 42, 74 (Fla. 2005). The general test for the admissibility of evidence is relevancy. See § 90.402, Fla. Stat. (2024) ("All relevant evidence is admissible, except as provided by law."). "Relevant evidence is evidence tending to prove or disprove a material fact." § 90.401. Weapons that are found in a search of premises that are controlled by a defendant may be admissible in evidence. O'Connor v. State, 835 So. 2d 1226, 1230 (Fla. 4th DCA 2003); see also Dias v. State, 812 So. 2d 487, 493 (Fla. 4th DCA 2002) (upholding the admissibility of a knife found in the defendant's van three weeks after a stabbing because it was similar to the victim's description of the knife used in committing the crime). But there must be a link between the evidence introduced at trial and the crime charged. O'Connor, 835 So. 2d at 1230; see also Jackson v. State, 25 So. 3d 518, 528 (Fla. 2009) ("In order for this evidence to be relevant, the State must show a sufficient link between the weapon and the crime."). Agatheas v. State (Agatheas II), 77 So. 3d 1232 (Fla. 2011), is instructive on this issue. There, Nicholas Agatheas was arrested for a murder that had occurred five years prior. Id. at 1234. At the time of his arrest, he had with him a backpack containing a revolver, a bandana, latex gloves, a flashlight, batteries, a lighter, and a screwdriver. Id. The State introduced this evidence at trial, and it was admitted without 3 objection. Id. He was convicted of first-degree murder and was sentenced to life in prison. Id. at 1235. He appealed, and the Fourth District affirmed his judgment and sentence. Id. That court found that the revolver, bandana, and latex gloves were properly admitted at trial. Id. (citing Agatheas v. State (Agatheas I), 28 So. 3d 204, 207 (Fla. 4th DCA 2010), quashed, 77 So. 3d 1232). And while the district court found that the admission of the flashlight, batteries, lighter, and screwdriver was improper, it concluded that "the erroneous admission of these items did not undermine confidence in the outcome of the cause and . . . the admission of the evidence was harmless." Id. (quoting Agatheas I, 28 So. 3d at 208). On appeal to the Florida Supreme Court, Agatheas argued "that the Fourth District erred in its assessment of the admissibility of the revolver found in the backpack and therefore erred in denying his claims of fundamental error and ineffective assistance of counsel." Id. at 1236. The supreme court agreed and concluded that "[u]nder the facts of this case, the only possible relevance of the 45-caliber revolver would be to demonstrate Agatheas's bad character or propensity." Id. at 1239. This was improper because "it is axiomatic that evidence of collateral crimes, wrongs, or acts committed by the defendant is not admissible where its sole relevance is to prove the bad character or propensity of the accused." Id. And "the erroneous admission of irrelevant collateral crimes evidence 'is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt.' " Id. at 1240 (quoting Robertson v. State, 829 So. 2d 901, 913-14 (Fla. 2002)). Moreover, the court determined that the bandana and latex gloves found in Agatheas's backpack were not relevant to the crime. Id. at 1240-41. In light of 4 these conclusions, the court quashed the Fourth District's decision that had upheld the trial court's admission of the revolver, bandana, and latex gloves and remanded for the appellate court to reconsider Agatheas's claims that the admission of the irrelevant evidence found in his backpack at the time of his arrest was fundamental error. Id. at 1241. On remand, the Fourth District held that the admission of that evidence was error and concluded that Agatheas "was denied a fair trial by the cumulative effect of the admission of . . . irrelevant and inadmissible evidence elicited by the State." Agatheas v. State (Agatheas III), 77 So. 3d 1290, 1290-91 (Fla. 4th DCA 2012). The court reversed his conviction and sentence and remanded for a new trial. Id. at 1291. Here, the victim did not testify that Green used a weapon, that he threatened to use a weapon, or that she even saw a weapon. Nor did she make any statements regarding the use or presence of condoms. Thus, Green argues that the knife and condoms were irrelevant and were introduced solely as improper character or propensity evidence. Further, he argues that the State made the knife found in his vehicle a feature of the trial. The State disagrees and argues that "[m]any people have a knife in their vehicle for protection or various other lawful purposes and evidence that Green had condoms tends to show he is responsible, which suggests good character." The State's argument is unavailing. At trial, the State elicited testimony about the knife and condoms on multiple occasions and emphasized them in closing argument. A crime scene technician testified regarding the discovery of the steak knife in a small, recessed area of the van and that he swabbed the knife for DNA. A detective testified that he was present when a crime scene 5 technician swabbed the knife. And, during closing argument, the State argued that the jury should consider this knife as evidence of guilt: I also submit to you that there were pieces of evidence in that vehicle that I think are notable. I think you should consider them when you deliberate on this case. I'm not going to bring the photos back up, but there was a little compartment in the back of that—of the van. Had two condoms in it. It's a strange thing to find, I would submit to you folks. Two condoms in the back of his van, a knife in plain view[,] which is—it's odd things that I think you should consider. Again, I don't have to prove motive or plan—that he planned this. That took time to figure it out. But when he took [the victim] in that van, I submit to you he knew exactly what he was doing. It was thought out. He preyed on her. These statements demonstrate that the State relied on the knife and unused condoms to show Green's state of mind and intent. See Killian v. State, 730 So. 2d 360, 362 (Fla. 2d DCA 1999). But, as this court noted in Killian, "state of mind is not a material fact in a sexual battery case and intent is not an issue." Id. Like the inadmissible and irrelevant evidence in Agatheas II, "the only possible relevance of the [knife and unused condoms] would be to demonstrate [Green's] bad character or propensity." See 77 So. 3d at 1239. No link was established between these items and the charged crimes. Thus, it was error for them to have been admitted into evidence. We recognize that "not all harmful error is fundamental." Reed v. State, 837 So. 2d 366, 370 (Fla. 2002). Nevertheless, under the circumstances here, we conclude that the admission of the knife and unused condoms constitutes fundamental error. Thus, we reverse Green's judgment and sentences for sexual battery and battery and remand for a new trial as to those alleged crimes. See Agatheas II, 77 So. 3d at 1241; Agatheas III, 77 So. 3d at 1290-91. II. Closing Argument and Cumulative Error 6 Green also argues that fundamental error occurred based on multiple improper statements made by the prosecutor during closing argument. Further, he contends that those statements, together with fundamental error arising from the improper admission of irrelevant evidence, constitutes cumulative error, requiring reversal. The State acknowledges that a number of statements made "were likely improper" or "a poor choice of words" but asserts that the comments do not amount to fundamental error. Generally, "failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review." Brooks v. State, 762 So. 2d 879, 898 (Fla. 2000). However, "[t]he sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error." Id. at 898-99; see also Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007) ("The Court considers the cumulative effect of objected-to and unobjected-to comments when reviewing whether a defendant received a fair trial." (citing Brooks, 762 So. 2d at 898-99)). Fundamental error exists when "the cumulative effect of the improper comments 'reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the alleged error.' " Berouty v. State, 290 So. 3d 82, 85-86 (Fla. 2d DCA 2020) (alteration in original) (quoting Johnson v. State, 238 So. 3d 726, 740 (Fla. 2018)). We need not address in detail each of the statements that Green contends were improper. It is clear from the trial transcript that the prosecutor made the irrelevant evidence a feature of the trial, made improper statements that amounted to personal opinions of guilt, and made improper statements implicating Green's right to not testify and 7 shifting the burden of proof. The improper statements taken together with the State's use and emphasis on irrelevant evidence as discussed above lead to the conclusion that their cumulative effect constitutes fundamental error requiring reversal of the judgment and sentences for sexual battery and battery. See Ritchie v. State, 344 So. 3d 369, 388 (Fla. 2022) ("[W]e consider whether the combined prejudice resulting from any errors in the prosecutor's closing argument together with the erroneous admission of improper victim impact testimony amounts to fundamental error."); cf. Gonzalez v. State, 136 So. 3d 1125, 1166 (Fla. 2014) ("The cumulative effect of multiple harmless errors does not amount to fundamental error where the errors share three decisive factors: (1) none of the errors are fundamental; (2) none go to the heart of the State's case; and (3) the jury would still have heard substantial evidence in support of the defendant's guilt."). III. Conclusion Because the admission of the steak knife and unused condoms at trial as well as multiple improper statements made by the prosecutor rise to fundamental error and deprived Green of a fair trial, we reverse his judgment and sentences for sexual battery and battery and remand for a new trial as to those alleged crimes. We affirm Green's judgment and sentence for the crime of incest. Affirmed in part, reversed in part, and remanded for a new trial as to sexual battery and battery. MORRIS and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 8