Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-106 _____________________________ MICHAEL SMITH, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Francis Allman, Judge. January 12, 2022 NORDBY, J. Michael Smith appeals his convictions and life sentence for capital sexual battery, raising four arguments for reversal: (1) the prosecutor made improper comments during closing arguments; (2) the trial court improperly admitted child hearsay testimony despite untimely notice; (3) the court should have held a pretrial hearing on Smith’s request for a statement of particulars; and (4) the cumulative effect of these errors denied Smith a fair trial. We affirm. I. Hannah Conley, a senior case coordinator with the Child Protection Team, (“CPT”) interviewed the two alleged victims: W.R. and C.H., ages eight and fifteen, respectively, around the time of the offense. The victims shared their story with Ms. Conley in the interview. They were riding in Smith’s truck one evening when he instructed the victims to perform oral sex on him. Later that same evening, Smith once again made C.H. perform oral sex on him in a house. W.R. also stated that Smith had anal sex with him at this house. Five days before trial, the State gave notice of its intent to use a recording of the CPT interview as child hearsay evidence. The trial court ultimately admitted the video over Smith’s objection. The State filed an Amended Information that alleged the offenses occurred between January 1, 2015, and December 31, 2015. The defense then moved for a statement of particulars, asking the State to narrow the date range of the alleged offenses. Attempts to schedule a hearing for the motion fell through; defense counsel told the judicial assistant he could resolve the issue with the State without a hearing. As a result, the trial court did not hold a hearing and the State never amended the date range. At trial, both victims testified to the sexual acts Smith committed against them. Hannah Conley testified about the interviewing methods she employed in her interviews with child witnesses and the purpose of those methods. Finally, the State played the video of the CPT interviews. Defense counsel never sought to cross-examine Ms. Conley during the trial. During closing arguments, the State made a few remarks that sparked objections. Following the State’s initial argument, Smith moved for a mistrial, arguing the State improperly bolstered the victims’ testimony. Smith’s counsel explained why the motion came at the end of the State’s argument: “I tactically, intentionally waited until Ms. Scott was finished with her very, very well said closing argument,” and “tactically, I wanted a record, you know, so there -- we now have a cumulative record . . . I don’t believe in, in interrupting counsel in closing arguments.” The court treated the motion as a contemporaneous objection and denied it. Then during the State’s rebuttal, the prosecutor told the jury: 2 This defendant does not have to prove his innocence. I am not asserting that to you at all. But when you have this kind of evidence put against you, two children saying these sort of things, swearing to these things the way they have, then, yes, if you believe them, that shifts to him. If you believe these children, then you find him guilty. He has not proven that he did not do this, if you believe them. Again, Smith’s counsel waited to object—this time until after the jury had retired to deliberate. Counsel explained why he waited: “I make it a point not to interrupt counsel during closing, unless it’s absolutely necessary. So I just ask that my objection be considered timely.” The court agreed that the State’s comments on the burden of proof were improper, and even looked to counsel for an objection during the rebuttal. But this time, the court declined to treat counsel’s objection as contemporaneous. Despite the tardy objection, the court offered to bring the jury back out and give a curative instruction. Counsel declined, fearing that drawing more attention to the statement would do more harm than good. The court then noted that although the comment was improper, it was isolated and did not warrant a mistrial. After deliberation, the jury returned a guilty verdict on all counts, and Smith was sentenced to life in prison. Smith moved for a new trial on three grounds: (1) the court’s failure to order the State to respond to the Motion for Statement of Particulars and failure to grant the motion; (2) the admission of the recorded interviews with the victims; and (3) the State’s improper burden- shifting comments during closing arguments. The court denied his motion, and this appeal followed. II. Smith first points to four categories of improper prosecutorial comments he believes warrant reversal: (1) shifting or misstating the burden of proof; (2) bolstering the victims’ testimony; (3) inflaming jurors’ emotions; and (4) re-victimization. We affirm as to the last three categories without comment. Before addressing 3 the State’s remarks on the burden of proof, we must determine whether Smith preserved his argument for appeal. Under the contemporaneous objection rule, parties must object when an error occurs during trial to allow appellate review. Shootes v. State, 20 So. 3d 434, 437 (Fla. 1st DCA 2009). The party must then make the same specific contention on appeal. Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982). This rule of course has exceptions, and one exists when a trial court treats a late objection as contemporaneous and rules on it. White v. Consolidated Freightways Corp. of Delaware, 766 So. 2d 1228, 1233 (Fla. 1st DCA 2000). For closing arguments, this Court has limited the exception in White to apply only when a party raises an error “before the jury retire[s] for deliberations” and objects “at the first possible moment following the prosecution’s closing argument.” Cole v. State, 866 So. 2d 761, 764 (Fla. 1st DCA 2004). Counsel objected twice during the State’s closing arguments, but neither objection preserved the arguments Smith makes on appeal. Smith’s first objection, made right after the State’s initial closing argument, falls within the exception to the contemporaneous objection rule set forth in White. Yet on appeal, Smith points to different comments, ones made in the State’s rebuttal argument. And while counsel’s second objection was aimed at some of the same comments Smith contests on appeal, the objection was too late. Because the jury had retired to deliberate, the objection falls outside the exception in White and failed to preserve Smith’s arguments on comments the State made during rebuttal. Smith then looks to Shootes, arguing that his motion for a new trial preserved his arguments. But Shootes is distinguishable. There, this Court held that a motion for a new trial preserved an issue for appeal when counsel “had no opportunity to [contemporaneously] object” and moved for a new trial “[a]s soon as counsel learned of [the error].” Shootes, 20 So. 3d at 437. Here, Smith had a chance to object—the trial court even expected him to. But counsel chose to wait until after the jury left for 4 deliberations to move for a new trial. As a result, his motion for a new trial preserved no errors for appeal. Finally, Smith contends that his counsel’s failure to preserve these issues constitutes ineffective assistance of counsel on the face of the record. We disagree. This claim can be brought on direct appeal “only if it is obvious from the record that counsel was ineffective, ‘the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.’” Fox v. State, 104 So. 3d 371, 371–72 (Fla. 1st DCA 2012) (quoting Dailey v. State, 46 So. 3d 647, 647 (Fla. 1st DCA 2010)). We can conceive a tactical explanation for counsel’s conduct because he gave one himself. Counsel told the trial court that he “tactically” avoids objection during the closing argument to build a record and that he refused a curative instruction to prevent further attention to the comments. Since Smith preserved none of his arguments about improper comments, we review the contested comments for fundamental error. See Breeden v. State, 226 So. 3d 336, 337 (Fla. 1st DCA 2017). A fundamental error is one that “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.” Id. “The purpose of closing argument is to help the jury understand the issues in a case by ‘applying the evidence to the law applicable to the case.’” R.J. Reynolds Tobacco Co. v. Kaplan, 321 So. 3d 267, 272 (Fla. 4th DCA 2021) (quoting Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000)). Attorneys have wide latitude in presenting closing arguments. Cardona v. State, 185 So. 2d 514, 520 (Fla. 2014). Yet, “it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.” Gore v. State, 719 So. 2d 1197, 1200 (Fla. 1998). The prosecutor here told the jury that if they believed the victims, the burden shifted to Smith and that Smith had not proven his innocence. On appeal, the State admits the argument was “badly articulated” but stops short of conceding error. These 5 statements mischaracterized the burden of proof and sought to shift the burden to Smith. By shifting the burden to Smith, the State “invite[d] the jury to convict the defendant for some reason other than that the State ha[d] proved its case beyond a reasonable doubt.” See Gore, 719 So. 2d at 1200. Although the prosecutor’s statements were improper, Smith has no right to relief because he invited the error. “Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.” Anderson v. State, 93 So. 3d 1201, 1206 (Fla. 1st DCA 2012) (quoting Ashley v. State, 642 So. 2d 837, 838 (Fla. 3d DCA 1994)); see also Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974) (“[W]here the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”). Because the trial court offered Smith a curative instruction in response to the State’s mischaracterization of the burden of proof and Smith refused, that error “was invited and [does] not warrant reversal.” See Sullivan, 303 So. 2d at 365. Even if the invited error doctrine were inapplicable, burden-shifting comments are not always fundamental error. See Bell v. State, 108 So. 3d 639, 650 (Fla. 2013). In Bell, the State made an improper burden-shifting comment, along with two others that improperly highlighted the defendant’s failure to testify. Id. at 648–49. The court reasoned that the comments did not rise to the level of fundamental error because other evidence corroborated the victim’s testimony, the jury was properly instructed on the legal standard for conviction, and the jury was properly instructed that attorneys’ closing arguments were not evidence. Id. at 650; but see Bass v. State, 547 So. 2d 680, 682 (Fla. 1st DCA 1989) (“[I]n a two witness ‘swearing match’ where there is little or nothing to corroborate the testimony of the witnesses, witness credibility is pivotal and inappropriate prosecutorial comment which might be found to be harmless in another setting may become prejudicially harmful.”). The prosecutor’s comments here were not fundamental error. As in Bell, the State mischaracterized the burden of proof. But this was the only improper comment, and the jury was correctly 6 instructed on the legal standard for conviction. Unlike in Bass, Ms. Conley’s interviews corroborated the victims’ testimony, so this was not a “swearing match” either. The trial court declared that “[t]he cold record may not reflect the strength of the testimony. The veracity of each of the victims during their testimony was palpable.” To recap, Smith preserved none of his arguments on the improper comments. Although the State erroneously shifted the burden of proof, Smith invited this error because he refused a curative instruction. Finally, any error was not fundamental because the comment was isolated, and the State corroborated the victim’s testimony. In other words, the jury could have reached the same verdict without the error. See Breeden, 226 So. 3d at 337. * III. Smith next asserts that the child hearsay evidence was inadmissible because of the State’s late notice. This court reviews admission of child hearsay for abuse of discretion. Barton v. State, 704 So. 2d 569, 575 (Fla. 1st DCA 1997). This means we must affirm unless no reasonable person would adopt the trial court’s view. Salazar v. State, 991 So. 2d 364, 372 (Fla. 2008). To admit child hearsay as evidence, the State must notify a defendant no later than ten days before trial. § 90.803(23)(b), Fla. Stat. (2019). Yet, untimely notice is “not fatal to admission of the statement when the party whom the statement is offered against suffered no harm and was given a fair opportunity to meet the statement.” N.C. v. State, 947 So. 2d 1201, 1203 (Fla. 1st DCA 2007). The State missed the deadline, giving Smith only five days’ notice before trial. Smith argues that the late notice left him unable to retain an expert witness to rebut the CPT interviews, which severely prejudiced him at trial. * We also reject Smith’s argument that the cumulative effect of the State’s comments denied him a fair trial. 7 Smith relies on Millette v. State, 223 So. 3d 466 (Fla. 1st DCA 2017), to prove prejudice. We find Millette unavailing. There, the court found prejudice when the State failed to disclose an expert witness before calling the expert at trial. Id. at 467. More specifically, the defendant was unable to find his own expert to rebut the State’s expert’s opinion testimony. Id. at 467–68. Here, the State listed Ms. Conley as a witness and gave Smith notice of the child hearsay testimony before trial. This pretrial notice gave Smith a chance to ask for a continuance to seek his own expert but he failed to do so. Counsel even admitted that there was no apparent undue influence during the interviews and said that Smith would not contest the hearsay evidence’s reliability. Plus, the State did not present unrebutted expert testimony because Ms. Conley’s only role was to introduce the child hearsay evidence, not to opine to the veracity of it. Smith has not shown that the late notice prejudiced him. Thus, we find that the trial court did not abuse its discretion by admitting the child hearsay evidence. IV. Next, Smith argues that the trial court committed reversible error by failing to hold a pretrial hearing on his motion for a statement of particulars. We review the trial court’s actions for abuse of discretion. See Saldana v. State, 980 So. 2d 1220, 1222 (Fla. 2d DCA 2008). The purpose of a statement of particulars is to fully advise the defendant of the nature and cause of the accusation against him, and to afford him the opportunity to prepare a defense. Brown v. State, 462 So. 2d 840, 843 (Fla. 1st DCA 1985). The Florida Supreme Court best explained the burden-shifting framework that applies when a defendant attacks a large date range: [A] trial court on a proper motion is required to dismiss an information or indictment involving lengthy periods of time if the State in a hearing cannot show clearly and convincingly that it has exhausted all reasonable means of narrowing the time frames further. Where such showing is made, the burden then shifts to the defendant 8 to show that the defense more likely than not will be prejudiced by the lengthy time frame. Dell’Orfano v. State, 616 So. 2d 33, 35 (Fla. 1993) (footnotes omitted). Smith initially claims that he was prejudiced because his motion would have been granted. But C.H. and W.R. testified that they could not remember the precise date of the offense. So the State lacked information to narrow the date range. Because the State had no reasonable means to narrow the date range, Smith has not shown that his motion would have been granted. Smith then argues that, assuming the motion were granted, the State would have presented evidence outside the narrowed range at trial, leading to acquittal. Not quite. Even when the State presents evidence outside a narrowed range, the State can move to amend the statement of particulars as long as the defendant will not be prejudiced. Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983). Smith makes no substantive argument on how he was prejudiced by the wide date range. Quite the opposite, he made the expansive date range a focus of his defense. Going one step further, even if the trial court erred in failing to hold a hearing, the defense invited that error. See Anderson, 93 So. 3d at 1206 (explaining the invited error doctrine). After being unable to schedule a pretrial hearing on this motion, Smith’s counsel said he would work directly with the State instead of a hearing. The record lacks further communication with the State and does not show that a hearing was still necessary. Smith cannot create an error below then benefit from the error on appeal. See id. Smith failed to show that the trial court abused its discretion by failing to hold a hearing on his motion for a statement of particulars. Even so, Smith invited any error and has no right to relief as a result. V. 9 Finally, Smith argues that the cumulative effect of the trial court’s errors deprived him of his right to a fair and impartial trial. Because we found only one error, a cumulative error analysis is unnecessary. See Fletcher v. State, 168 So. 3d 186, 220 (Fla. 2015) (“[B]ecause we hold that only one error occurred during the guilt phase, and no errors occurred during the penalty phase, no cumulative error analysis is necessary.”). AFFIRMED. B.L. THOMAS and BILBREY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, and Tabitha Rae Herrera, Assistant Attorney General, Tallahassee, for Appellee. 10