Third District Court of Appeal
State of Florida
Opinion filed February 22, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2441
Lower Tribunal No. 13-201-A-P
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Pedro Portillo,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Monroe County, William R. Ptomey,
Jr., Judge.
Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.
Before LOGUE and SCALES, JJ., and SHEPHERD, Senior Judge.
LOGUE, J.
In a case of first impression, we are asked to decide whether Florida’s Rape
Shield Law serves to shield the defendant from the victim’s testimony. Pedro
Portillo appeals his conviction for attempted sexual battery. Portillo argues that the
victim’s testimony violated section 794.022(2), Florida Statutes (2014), a
subsection of Florida’s Rape Shield Law. He cites to the victim’s testimony in
which she referenced her prior sexual experience to explain her perception of
Portillo’s behavior. We affirm for three reasons. First, Portillo failed to preserve
this argument for review. Second, a defendant cannot rely on the Rape Shield Law
to limit a victim’s testimony on direct examination. And third, any error that may
have resulted from the brief and fleeting reference was harmless.
Background
Portillo was charged with attempted sexual battery under sections
794.011(5) and 777.04(1), Florida Statutes (2013). The charge required proof that
Portillo intended to digitally penetrate the victim’s vagina. See Lakey v. State, 113
So. 3d 90, 91 (Fla. 5th DCA 2013). The adult victim testified that while visiting
her mother’s home, Portillo, who lived with the victim’s mother, entered the
bathroom where she was taking a shower, groped her, and attempted penetration
with his fingers. The testimony at issue reads as follows:
STATE: Have you had any romantic involvements with a man similar
to the actions that Mr. Portillo was trying to do to you that day?
VICTIM: I guess can you rephrase it?
2
STATE: Has a man ever tried to digitally penetrate—
VICTIM: Yes.
STATE: Your vagina?
VICTIM: Like boyfriend?
STATE: Yes.
DEFENSE COUNSEL: Objection. Relevance.
COURT: Overruled.
STATE: Like a boyfriend.
VICTIM: Yes.
STATE: So you know what that felt like at that time?
VICTIM: Yes.
STATE: Did Mr. Portillo seem to be behaving in a way that when he
touched your vagina it made you think he was just going to statically
touch it on the top?
VICTIM: Yes.
STATE: Or did you—
VICTIM: Oh, no. Sorry.
STATE: Okay. Do you understand what I am asking you?
VICTIM: Yeah.
STATE: Okay. Did he seem like he was just going to pet you on the
top?
3
VICTIM: No.
STATE: Okay. So you’ve had similar experiences in the past that—or
let me ask you this. Did you have similar experiences in the past to
compare with what Mr. Portillo was doing?
VICTIM: Yeah. I knew what he was trying to do.
STATE: Okay. And what was it that you felt he was trying to do?
VICTIM: Stick his fingers in my vagina.
The jury found Portillo guilty as charged. He was sentenced to three years
in prison followed by two years’ probation. He timely appealed.
Analysis
The victim testified that she knew from prior sexual experience that the way
Portillo placed his fingers on her genitals indicated his intent to digitally penetrate
her. Portillo raises only one issue on appeal. He argues that his conviction should
be reversed because the victim’s testimony in this regard violated section
794.022(2), which provides in part that “[s]pecific instances of prior consensual
sexual activity between the victim and any person other than the offender shall not
be admitted into evidence in a prosecution under s. 794.011.” As explained below,
we reject Portillo’s appeal.
1. Portillo failed to preserve his argument that the victim’s testimony
violated section 794.022(2).
To preserve an argument for further review, an objection must be articulated
“with sufficient specificity as to inform the trial judge of the alleged error.”
4
Richemond v. State, 126 So. 3d 281, 284 (Fla. 3d DCA 2011) (internal quotations
omitted); see also § 924.051(1)(b), Fla. Stat. (2014) (a legal argument is
“preserved” only if the argument was “sufficiently precise that it fairly apprised the
trial court of the relief sought and the grounds therefor”). Here, the defendant’s
objection to the victim’s testimony consisted of two words: “Objection.
Relevance.”
In the context of this trial, this general objection was not sufficient to alert
the trial court that the grounds of Portillo’s objection was the Rape Shield Law.
First, the victim’s testimony on this point was relevant, as it tends to prove
Portillo’s intent. See § 90.401, Fla. Stat. (2014) (“Relevant evidence is evidence
tending to prove or disprove a material fact.”). Second, a review of the entire
record on appeal reveals that no reference to the Rape Shield Law was made at any
point in the trial. Third, there is no known Florida case in which a defendant
claimed that the Rape Shield Law shields a defendant from a victim’s testimony.
Therefore, the trial court had no way to know that Portillo’s objection was not to
relevance under section 90.402, but instead based on the prohibition under section
794.022(2). Given this context, the trial court would have to be clairvoyant to
realize that Portillo’s general objection was intended to raise this novel argument
of first impression.
2. A defendant cannot invoke Florida’s Rape Shield Law to limit a victim’s
testimony.
5
Florida’s Rape Shield Law cannot be invoked by an accused rapist to limit a
victim’s direct testimony because the Legislature’s intent in enacting the law was
to shield the victim from abusive conduct by the defense. “A court’s purpose in
construing a statute is to give effect to legislative intent, which is the polestar that
guides the court in statutory construction.” Larimore v. State, 2 So. 3d 101, 106
(Fla. 2008). A statute must be interpreted “to give effect to every cause in it, and to
accord meaning and harmony to all of its parts.”
Id. Moreover, “[i]f a part of a
statute appears to have a clear meaning if considered alone but when given that
meaning is inconsistent with other parts of the same statute or others in pari
materia, the Court will examine the entire act and those in pari materia in order to
ascertain the overall legislative intent.”
Id.
The portion of the Rape Shield Law at issue here in its entirety reads:
Specific instances of prior consensual sexual activity
between the victim and any person other than the
offender may not be admitted into evidence in a
prosecution under s. 787.06, s. 794.011, 800.04.
However, such evidence may be admitted if it is first
established to the court in a proceeding in camera that
such evidence may prove that the defendant was not the
source of the semen, pregnancy, injury, or disease; or,
when consent by the victim is at issue, such evidence
may be admitted if it is first established to the court in a
proceeding in camera that such evidence tends to
establish a pattern of conduct or behavior on the part of
the victim which is so similar to the conduct or behavior
in the case that it is relevant to the issue of consent.
6
§ 794.022(2).
While the first sentence of subsection (2) may appear to suggest the
prohibition on references to the victim’s prior sexual activity applies to both the
defendant and the victim, the second sentence indicates that is not the case. The
second sentence of subsection (2) modifies the first sentence by establishing
exceptions to the first sentence. All of these exceptions concern the circumstance
in which the defendant – not the victim – attempts to enter evidence of the victim’s
prior sexual activity. The fact that the exceptions to the prohibition concern only
when the defendant is offering evidence of the victim’s prior sexual activity as part
of the defense is an indication that the prohibition itself applies only when the
defendant is offering evidence of the victim’s prior sexual activity. Otherwise, far
from being evenhanded, the Rape Shield Law would be one-sided – against the
victim – always prohibiting the victim but only sometimes prohibiting the
defendant. Given the purpose of the Rape Shield Law, it is self-evident that the
Legislature never intended any such result.
For much of our history, defendants in rape cases often resorted to putting
the victim on trial by parading in public the most intimate details of his or her prior
sexual experience. Too often, these cross-examinations were part of a strategy to
either intimidate the victim into silence, or worse, paint the victim as an object who
7
had forfeited any right he or she may once have had to refuse consent to the
defendant’s sexual advances.1
As every court discussing the law has recognized, the purpose of Florida’s
Rape Shield Law is to protect a victim’s privacy from unwarranted public
intrusion. Indeed, “evidence of sexual history typically is excluded to protect the
complainant’s reasonable expectation of privacy,” and “to avoid invasive and
demeaning inquiry into a complainant’s intimate conduct.” Johnson v. Moore, 472
F. Supp. 2d 1344, 1364 (M.D. Fla. 2007) (discussing the purpose of Florida’s Rape
Shield Law). Such evidence is also excluded “to encourage the reporting and
pursuit of complaints of sexual battery, and to avoid the prejudice that results from
the introduction of a distracting, confusing, and inflammatory irrelevancy.”
Id.
These purposes are not implicated when the victim voluntarily refers to his or her
past sexual history to explain the incident.
An examination of the other subsections of the Rape Shield Law supports
the conclusion that the purpose of the Rape Shield Law is to shield the victim, not
the defendant. Subsection (1) states that a victim’s testimony need not be
corroborated in a prosecution for certain sex crimes before a jury can rely on such
1 See, e.g., Nickels v. State, 106 So. 479, 489 (Fla. 1925) (holding, before
enactment of the Rape Shield Law, a defendant raising issue of consent was
entitled to admit into evidence “the general reputation of the prosecutrix for
chastity, except that she may [also] be interrogated as to her previous intercourse
with the defendant or as to promiscuous intercourse with other men, or common
prostitution”).
8
testimony. Subsection (3) precludes evidence of the victim’s “manner of dress” to
purportedly prove the victim “incited” the sexual battery. Subsection (4) permits a
victim to introduce evidence that shows “consent” was not voluntary. And
subsection (5) provides that evidence of use of a prophylactic device or victim’s
request for use of a prophylactic device may not be admitted as evidence of
consent. These provisions all protect the victim from an abusive defense. They
limit the defense, not the victim.
In fact, since it was enacted, section 794.022(2) has been applied to limit
only the defense; it has never been applied to limit the victim’s testimony.2 Indeed,
2 See, e.g., Marr v. State, 494 So. 2d 1139 (Fla. 1986) (concluding that the trial
court properly limited cross-examination of the victim by precluding evidence of
the victim’s past sexual activity); State v. Adderly,
803 So. 2d 760 (Fla. 3d DCA
2001) (granting the State’s petition for certiorari and quashing the trial court’s
order which denied the State’s motion in limine to preclude the defendant from
introducing evidence of the victim’s prior sexual activity); Young v. State,
562 So.
2d 370, 371 (Fla. 3d DCA 1990) (concluding that the trial court properly precluded
the defendant from introducing evidence that the “victim had engaged in sexual
intercourse with three members of a group of friends”); State v. Pancoast,
596 So.
2d 162 (Fla. 2d DCA 1992) (granting the State’s petition for certiorari and
quashing an order denying the State’s motion to strike three defense witnesses and
their testimony about prior consensual sex with the victim); Kaplan v. State,
451
So. 2d 1386 (Fla. 4th DCA 1984) (concluding that the trial court properly limited
cross-examination of the victim); Winters v. State,
425 So. 2d 203 (Fla. 5th DCA
1983) (concluding that the trial court properly precluded the defendant from
putting on evidence of the victim’s prior sexual activity); Hodges v. State,
386 So.
2d 888 (Fla. 1st DCA 1980) (concluding that the trial court properly denied
defense counsel’s request to present proffered testimony to the jury about the
victim’s prior sexual activity).
9
we could find no decision in any jurisdiction in the United States in which a Rape
Shield Law was used to shield the defendant from the testimony of the victim.
Finally, at least one case indicates that a victim who mentions his or her past
sexual experience opens the door to a cross-examination in that regard. Docekal v.
State, 929 So. 2d 1139, 1143 (Fla. 3d DCA 2006) (noting that it is reversible error
to prohibit a defendant from cross-examining a victim regarding her past sexual
history when she made statements that “opened the door” to this evidence). This
principle of law further indicates that the Rape Shield Law does not serve as a
blanket prohibition on the victim’s ability to reference a past experience when
telling his or her story.
3. Any error that resulted from the victim’s testimony was harmless.
Finally, even if Portillo had preserved an objection and even if section
794.022(2) provides a blanket prohibition of the victim mentioning his or her
sexual experience to explain an incident, reversal is not warranted because the
error here, if any, was harmless. See § 59.01, Fla. Stat. (2014) (noting that no
judgment shall be set aside or reversed where the improper admission of evidence
results in harmless error). The victim’s isolated and fleeting reference to her past
sexual experience to explain her perception of Portillo’s behavior was not the focus
of the trial; it was not a distraction from the merits of Portillo’s guilt or innocence;
it was not prejudicial in any manner. Because there is no “reasonable possibility
10
that the error contributed to the conviction,” we must affirm. State v. DiGuilio,
491 So. 2d 1129, 1138 (Fla. 1986).
Pedro Portillo v. State of Florida
3D15-2441
SCALES, J. concurring.
I concur only in that portion of J. Logue’s opinion holding that Appellant
Portillo failed to adequately preserve his argument that the victim’s testimony
violated Florida’s Rape Shield Law. Therefore, I concur in result only.
11
Portillo v. State
Case No. 3D15-2441
SHEPHERD, Senior Judge.
I respectfully dissent. The issue in this case is whether a defendant in a
sexual battery case has the same right as does the victim to invoke Florida’s Rape
Shield Law, section 794.022(2) of the Florida Statutes (2014), seeking to exclude
from evidence a victim’s previous experiences with unrelated men. I believe that
he does.
Florida’s Rape Shield Law provides, in pertinent part:
Specific instances of prior consensual sexual activity between the
victim and any person other than the offender shall not be admitted
into evidence in a prosecution under . . . s. 794.011, [of the Florida
Statutes].
12
Pedro Portillo was convicted of attempted sexual battery with an object
(namely, his fingers) pursuant to sections 794.011(5) and 777.04(1) of the Florida
Statutes (2014). The evidence presented at trial established that Mr. Portillo
moved his hand up the victim’s thigh and ultimately rested his palm on her vulva
(the exterior organ). She also testified unequivocally that Portillo did not move his
fingers any further before she moved his hand away. The key disputed issue at
trial was whether Mr. Portillo intended to actually penetrate the victim’s vaginal
canal with his fingers, or whether he simply sought to touch her exterior vulva.
The completed act of sexual battery with an object requires the actual penetration
of the vaginal canal, rather than mere union with the exterior vulva. See Lakey v.
State, 113 So. 3d 90, 91 (Fla. 5th DCA 2013). Attempted sexual battery with an
object thus requires the same intent, that is, to penetrate the vagina but-for an
intervening act. § 777.04. The difference between the two acts is imperative, as
the former constitutes attempted sexual battery, while the latter is insufficient as a
matter of law. See Lakey,
113 So. 3d at 91.
Unlike most cases where a female victim of sexual battery is seeking to
exclude evidence of prior consensual sexual activities with other partners for
personal reasons, the State in this case sought to offer the victim’s prior
experiences as evidence that the defendant intended to digitally penetrate her.
13
During direct examination, the prosecutor elicited the following testimony from the
victim:
Q. Has a man ever tried to digitally penetrate --
A. Yes.
Q. -- your vagina?
A. Like boyfriend?
Q. Yes
[Defense counsel]: Objection. Relevance.
THE COURT: Overruled.
Q. Like a boyfriend.
A. Yes.
Q. Did Mr. Portillo seem to be behaving in a way that when he
touched your vagina it made you think he was just going to statically
touch it on the top?
A. Yes.
Q. Or did you –
A. Oh, no. Sorry.
Q. Okay. Do you understand what I am asking you?
A. Yeah.
Q. Okay. So you’ve had similar experiences in the past that – or let
me ask you this. Did you have similar experiences in the past to
compare with what Mr. Portillo was doing?
A. Yeah. I knew what he was trying to do.
14
Q. Okay. And what was it that you felt he was trying to do?
A. Stick his fingers in my vagina.
Incanting the reason de etre behind Florida’s Rape Shield Law, that “[a] victim’s
prior consensual sexual activity with one other than the accused is simply
irrelevant for determining the guilt of the accused,” citing Marr v. State, 494 So. 2d
1139, 1142 (Fla. 1986), Portillo argues here that the Rape Shield Law similarly
excludes the victim’s prior experiences with her boyfriend. I agree.
On appeal, the State initially argues that Portillo failed to preserve the Rape
Shield Law issue by merely raising relevance as his objection to the testimony in
the trial court. The majority accepts this argument; however, I reject it because
relevancy is at the heart of rape shield laws. See Lewis v. State, 591 So. 2d 922,
924 (Fla. 1991) (acknowledging that in Marr the Court “explained that Florida’s
Rape Shield Statute is a codification of the rule of relevancy that a victim’s prior
sexual activity with one other than the accused is generally irrelevant for
determining the guilt of the accused”); Kaplan v. State,
451 So. 2d 1386, 1377
(Fla. 4th DCA 1984) (“[Florida’s Rape Shield Law] is merely a codification of this
jurisdiction’s rule of relevance as it applies to the sexual behavior of a sexually
battered victim.”) Thus, the relevancy objection sufficiently apprised the trial
court of the defendant’s grounds for opposing the testimony.
15
On the merits, the State contends the Rape Shield Law implicitly limits its
use to instances where the victim, and not the accused, raises the shield. Florida’s
Rape Shield Law, however, unlike the majority of similar laws in other
jurisdictions,3 is silent, and therefore neutral, on the issue of who may employ its
prohibition in a criminal trial. In enacting this law, we presume the legislature
understood the meaning of the words it used, and that it intentionally opted for the
neutral language instead of specifying a beneficiary of the evidentiary objection
under this section. See Ward v. State, 936 So. 2d 1143, 1146 (Fla. 3d DCA 2006).
On at least this point, the neutral language may safeguard Florida’s Rape Shield
Law from some of the controversy presently faced in other jurisdictions, where,
not surprisingly, courts have struggled with the inherent evidentiary limitations
imposed by restrictive rape shield laws. See generally Josh Maggard, Courting
Disaster: Re-Evaluating Rape Shields in Light of People v. Bryant,
66 Ohio St. L.J.
1341 (2005); Shawn J. Wallach, Rape Shield Laws: Protecting the Victim at the
3
Ala. Code § 12-21-203;
Alaska Stat. § 12.45.045;
Ark. Code Ann. § 16-42-101;
Cal. Evid. Code § 782;
Conn. Gen. Stat. § 54-86f; 11 Del. Code Ann. § 3509;
D.C.
Code § 22-3022;
Ga. Code Ann. § 24-4-412;
Haw. Rev. Stat. § 626-1, R. 412;
Idaho R. Evid. 412; 725 Ill. Comp. Stat. 5/115-7; Iowa R. Evid. 5.412;
Kan. Stat.
Ann. § 21-5502; La. Code Evid. Ann. art. 412; Me. R. Evid. 412;
Mich. Comp.
Laws § 750.520j;
Minn. Stat. § 609.347;
Miss. Code Ann. § 97-3-68;
Mo. Rev.
Stat. § 491.015;
Mont. Code Ann. § 45-5-511;
Neb. Rev. Stat. § 27-412;
Nev. Rev.
Stat. §§ 50.090; N.H. Evid. R. 412; N.J. Stat. Ann. § 2C: 14-7;
N.Y. Crim. Proc.
Law § 60.42;
Okla. Stat. tit. 12, § 2412;
Or. Rev. Stat. § 40.210; 18 Pa. Cons. Stat.
Ann. § 3104; R.I. Gen. Laws § 11-37-13;
S.C. Code Ann. § 16-3-659.1; Tenn.
Evid. R. 412; Tex. R. Evid. 412; Vt. Stat. Ann. tit. 12 § 3255;
Va. Code Ann. §
18.2-67.7; Wash. Rev. Code § 9A.44.020;
Wyo. Stat. Ann. § 6-2-312.
16
Expense of the Defendant’s Constitutional Rights, 13 N.Y.L. Sch. J. Hum. Rts. 485
(1997).
In this case, the record on appeal shows that the State could have prosecuted
the case against Mr. Portillo without introducing irrelevant evidence regarding the
victim’s experience with other partners. Therefore, there was no need to muddy
the case submitted to the jury with this evidence. Accordingly, because the trial
court unnecessarily admitted this evidence which is clearly excludable under the
Rape Shield Law, I would reverse and remand for a new trial.
17
