Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-3041 _____________________________ ANDREW J. GIVENS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Bay County. Christopher N. Patterson, Judge. March 30, 2021 PER CURIAM. Andrew J. Givens appeals an order summarily denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. Finding no error by the trial court, we affirm. Facts The victim and Givens began a romantic relationship in late 2016. They did not live together, and they stopped dating after a few months. But after the break-up, the two still talked and saw each other. On January 21, 2017, Givens called the victim and asked to move in with her. She refused and an argument ensued over the phone. Soon after the call, Givens showed up at the victim’s home. He banged on the door and cursed at her because she would not let him in. The victim tried to call 911, but before she could, Givens broke down the back door and took her phone from her. After breaking into the home, Givens kept the victim trapped there for three days. During that time, Givens forced her to engage in oral sex and intercourse. Finally, on the fourth day, the victim persuaded Givens to leave her home and go to Tim Taylor’s home, where he rented a room. After Givens left, the victim collected some of her belongings and went to stay with her mother. When the victim reported the incident to police, she told them that she and Givens had consensual sex a couple of times during the week before he forced his way into her home. She explained that the two did not live together. Givens never moved any of his clothing or personal items into her home—he would bring over what he needed when he stayed overnight. The victim denied keeping a key outside for Givens. She also denied helping him move boxes from Taylor’s house to her car and then to her house. When the police interviewed Givens, he admitted that he had stayed at the victim’s home the weekend of the incident. But he claimed that he and the victim had consensual sex. He denied breaking into the victim’s home. He asserted that he had just moved in with the victim and entered the home through the back door. But he acknowledged that he did not have a key to the home. The police interviewed several witnesses who reported that Givens often stayed overnight with the victim and they considered the two to be roommates. One such witness was Melinda Dye. The day after the police spoke with the victim in the hospital, Dye told them that Givens was her roommate. But Dye changed her story at trial. She explained that she was drunk when the police interviewed her. At trial, Dye asserted that Givens moved in with the victim at the beginning of January and would often answer the door at the victim’s house. The defense presented another witness at trial, Gary Warnick, who also testified that when the incident occurred, Givens had moved out of Taylor’s house and was living with the victim. 2 Last, Givens testified. He asserted that he moved into the victim’s home weeks before the incident. He claimed that all of his belongings, except for his tools, were in the home: shirts hung in her closet, clothes in the drawers, shoes under the bed, and a toothbrush in the bathroom. Givens denied that he entered the victim’s home without her permission. And he asserted that there was a key in the grill outside the home for him to use if needed. Givens also testified that he and the victim used drugs together daily. The defense then rested. The jury convicted Givens of burglary with an assault or battery, obstructing a 911 call, false imprisonment, and three counts of sexual battery with threat of violence. The trial court imposed a sentence of five years in prison for obstructing a 911 call and for false imprisonment. On the remaining counts, the trial court sentenced Givens to twenty-nine years in prison. This Court affirmed Givens’ convictions and sentences on direct appeal. Givens v. State, 259 So. 3d 80 (Fla. 1st DCA 2018) (unpublished table decision). Givens then moved for postconviction relief under rule 3.850, raising four claims of ineffective assistance of counsel. The trial court struck the postconviction motion as facially insufficient, but allowed Givens to file an amended motion. Givens declined the opportunity and asked the court to rule on his initial motion. So the trial court considered Givens’ original motion and denied it in its entirety. This timely appeal follows. Analysis To prevail on his claims of ineffective assistance of counsel, Givens had to show that (1) counsel’s performance was outside the wide range of reasonable professional assistance; and (2) such conduct in fact prejudiced the outcome of the proceedings because without the conduct, there was a reasonable probability that the outcome would have been different. See Strickland v. Washington, 466 U.S. 668, 687–88, 691–92 (1984); Spencer v. State, 842 So. 2d 52, 61 (Fla. 2003). And when there is a failure to make a showing as to one prong, this Court need not consider whether there has 3 been a showing under the other prong. See Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001). Givens asserts that his counsel was ineffective for failing to: (1) object to the State’s motion in limine; (2) require authentication of photographs of the back door of the victim’s home; (3) object to certain comments by the prosecutor during closing argument; and (4) call two exculpatory witnesses who would have testified that they helped Givens pack his belongings when he was moving into the victim’s home. We address each claim in turn. First, Givens argues that his counsel was ineffective for not objecting to the State’s motion in limine to exclude evidence that the victim was pregnant when the offenses occurred and that the victim contracted a sexually transmitted disease from Givens. Before trial, the State moved to exclude this evidence under Florida’s Rape Shield Law. And defense counsel agreed that the evidence was inadmissible. Givens argues that this concession by his counsel prejudiced him because the victim was pregnant with his child, which supported his consent defense. Givens’ argument fails because section 794.022(2), Florida Statutes (2017), bars introduction of evidence of specific instances of prior sexual activity between the victim and “any person other than the offender.” Contrary to Givens’ argument, the parties stipulated before trial that Givens was not the father of the victim’s child. Because a person other than Givens was the father of the victim’s child, the trial court properly excluded evidence of the victim’s pregnancy under section 794.022(2). And thus, Givens’ counsel was not “ineffective for failing to make a meritless objection.” Hitchcock v. State, 991 So. 2d 337, 361 (Fla. 2008). Further, Givens cannot show how the exclusion of the victim’s pregnancy prejudiced his case. The jury knew that Givens and the victim engaged in consensual intercourse in the days before the incident. For the same reasons, Givens cannot show how he was prejudiced by the exclusion of evidence regarding the victim having an STD. Thus, the trial court properly denied this claim. Second, Givens argues that counsel was ineffective for failing to require authentication of the photographs of the back door of the victim’s home. The photographs, taken by a victims’ advocate, 4 depicted a broken safety chain and a dent in a wall. Givens asserts that the photographs were prejudicial to his defense because they supported the victim’s testimony that Givens entered her home by force and without permission. This record refutes this claim. Defense counsel objected to the introduction of the photographs on grounds that they did not represent the scene and it was unknown when the pictures were taken. The trial court overruled the objection. Defense counsel again objected to the photographs when the State introduced them through the victim’s rebuttal testimony. He also argued in closing that no one could be sure when the pictures were taken. Based on the multiple objections at trial by defense counsel, Givens’ counsel cannot be considered ineffective for “failing to do something that counsel actually did.” See Turner v. State, 91 So. 3d 916, 918 (Fla. 2d DCA 2012). And so the trial court properly denied this claim, too. Third, Givens argued in his postconviction motion that his counsel was ineffective for not objecting to certain comments by the prosecutor during closing arguments. But Givens abandoned this claim on appeal because he did not raise any argument about this claim in his initial brief. See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) (“[I]ssues not raised in the initial brief are considered waived or abandoned.”). Fourth, Givens contends that his counsel was ineffective for failing to call two witnesses—Corey Chapman and Shane Simpson—who Givens asserts would have testified that they packed Givens’ belongings at his prior residence to move into the victim’s home. Givens asserts that he told his counsel about the witnesses. He claims that he was prejudiced by counsel’s failure to call the witnesses because they would have rebutted the State’s theory that Givens was not living with the victim at the time of the offenses. Defense counsel’s failure to call a witness can constitute ineffective assistance of counsel if the witness “may have been able to cast doubt on appellant’s guilt.” Sorgman v. State, 549 So. 2d 686, 687 (Fla. 1st DCA 1989). But “even if a witness was available to testify and counsel was deficient in not presenting his or her 5 testimony during trial, counsel is not ineffective if that testimony would have been cumulative to other evidence presented, because such cumulative evidence removes a defendant’s ability to establish prejudice.” Nelson v. State, 73 So. 3d 77, 89 (Fla. 2011). Here, the testimony of Chapman and Simpson would have been cumulative because two other witnesses—Dye and Warnick— testified that Givens had moved in with the victim at the time of the offenses. And it is unlikely that Chapman’s and Simpson’s testimony would have changed the outcome of the trial. For these reasons, Givens has not shown prejudice. And even if he had been able to show prejudice, there is no reasonable possibility that counsel’s failure to call the two witnesses contributed to the verdict. See State v. DiGiulio, 491 So. 2d 1129, 1135 (Fla. 1986). The State introduced evidence showing that Givens sent the victim aggressive and threatening text messages, claiming that individuals like her “end up a statistic” and “women like you meet their own fate, its called karma.” The victim repeatedly testified that she did not want Givens to live with her and that he did not have a key to her home. Givens admitted that he did not have a key the victim’s home. The State introduced photographic evidence of a forced entry into the home. Thus, the jury knew that Givens’ theory of defense was that he had moved into the victim’s home, and the State presented substantial evidence that Givens’ entry was forced and the sex between Givens and the victim was not consensual. For all these reasons, the trial court did not err when it denied Givens’ claim of ineffective assistance of counsel based on defense counsel’s failure to call Chapman and Simpson to testify at trial. In his last claim of error, Givens urges this Court to reverse the trial court’s order because the trial court failed to attach record portions that refuted his claims. Again, this claim lacks merit. The trial court attached portions of the record to support each of its factual findings and to refute Givens’ postconviction claims. Finding no error by the trial court, we AFFIRM the order denying Givens’ motion for postconviction relief. ROWE, MAKAR, and OSTERHAUS, JJ., concur. 6 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andrew J. Givens, pro se, Appellant. Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee. 7