## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D2022

- 2485

_____________________________

R ENE E LMER R IVAS

,

Appellant,

v.

S TATE OF F LORIDA

,

Appellee.

_____________________________

On appeal from the Circuit Court for Bay County

. Timothy Register , Judge

.

December 6, 2 023

N ORDBY

, J

.

A jury found Rene Elmer Rivas guilty of (1) sexual battery on a person less than twelve years old and (2) lewd or lascivious

molestation. The trial court sentenced him to life imprisonment.

Rivas now appeals , and w e affirm.

At trial, the v ictim testified that when she was seven years old, Rivas m olested and raped her while she was in his care

. On a separate occasion

, also when the v ictim was seven years old, Rivas forced her to perform oral sex on him.

About three and a half years after the incidents

, the v ictim
confided in her f riend about the sexual abuse

. The f riend persuaded the v ictim to tell her mother. The mother contacted the authorities, and Rivas eventually faced trial.2 I.

On appeal, Rivas argues that two testimonial statements , one from the f riend and the other from Nurse Practitioner Natasha Woodham, were unfairly prejudicial and vitiated the legitimacy of

the entire trial. We disagree.

The first statement that Rivas challenges is the f riend’s, who
testified for the State:

[The State]: Do you know if [ the v ictim] had told her mom at that point? [Friend]: She had told me that she never told anyone. [The State]: How did you feel about that? [Friend]: It honestly hurt me, because I know that, through my experiences that I’ve had with multiple men in my youth , it’s hard to open up to someone, especially in Hispanic communities, it’s very normalized behavior

upon men.

Defense counsel did not object. On appeal, Rivas argues that the testimony prejudice d him because it characteriz ed child
molestation as normaliz ed behavior among men like Rivas.

Since the court admitted the statement without objection, the

issue is unpreserved, and fundamental error analysis applies.
Serrano v. State

, 279 So. 3d 296, 301 (Fla. 1st DCA 2019)

. Fundamental error is an error so seve re that it reach es “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.” Knight v. State

, 286 So. 3d 147, 151 (Fla. 2019) (quoting Brown v.
State , 124 So. 2d 481, 484 (Fla. 1960)).

The underlying premise of Rivas’ argument is questionable.
He asserts that the f riend characterized child molestation as

normalized behavior among men like Rivas. But the f riend did not say “child molestation” nor name Rivas when she mentioned
“normalized behavior. ” So t he record does not support Rivas’

contention

.3 But even if Rivas ’ assertion is fair

, his legal argument still
fail s

. He argues that the f riend’s testimony was unfair ly prejudicial. To amount to unfair prejudice, the testimony must have “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Brown v. State

, 719 So. 2d 882, 885 (Fla. 1998) ( q uoting Old Chief v. United
States , 519 U.S. 172, 180 (1997) ). Rivas does not identify the “improper basis” suggested by the testimony

, how the testimony may have unduly encouraged a decision on that improper ground

,

n or any rule of evidence that would prec lude the statement’s

admission.

Even if the testimony were prejudicial

, it s admission would
still fall short of fundamental error. The record does not reveal that
Rivas would have been acquitted without this specific testimony. Considering the stronger evidence throughout the trial ( such as
the v ictim’s direct testimony about what occurred when she was seven years old )

, the f riend’s attestation alone does not appear to
have seal ed Rivas’ fate

. Without showing that he could not have

been convicted but for the alleged error, Rivas fails to demonstrate
fundamental error. Knight

, 286 So. 3d at 151.

II.

Next, Rivas challenges the statement of Nurse Practitioner
Woodham , who conducted a medical exam ination on the v ictim

. The examination disclosed a tear of the v ictim’s hymen:

[The State]: So, your opinion is that this injury was occurred from some penetrating force? [Woodham]: That’s correct. [The State]: Is there any significance to the fact that you found this injury in [ the v ictim ]? [Woodham]: Yes. So, as I said before, I’ve been at the Children’s Advocacy Center since 2015 and I’ve done a lot of these exams. Most children that I do these genital exams on, have no injuries, even when we know that there’s been something happened to the m, either video or someone’s walked on the act happening. Most of these children, probably over 90 percent of them do not have injuries to their genitalia at all because of the nature of4 the vagina and how much it can stretch whenever injuries happen to it . So, the fact that she had an injury is significant. Out of all the exams that I’ve done, I probably only have maybe two handfuls of children that have had a transection to their hymen.

D efense counsel did not object. On appeal, Rivas argues that the

tes timony was unduly prejudicial because any reasonable juror would develop an affinity for the v ictim after hearing that “the

seven

- year

- old’s vagina was penetrated with such force that her hymen was torn.” That, he says, could have “tipped the scales” in

th e State’s favor.

Rivas correctly asserts that the jury may have found th is testimony emotional ly charging. That is true of nearly any evidence pointing to a child sex crime. Yet j uries are generally

allowed to consider any evidence that tends to prove a material
fact

. See § § 90.40 1

– . 4 02

, Fla. Stat. (2022)

. Woodham ’s testimony

about the v ictim’s physical examination supported the State’s case

. Rivas supplies no authority that would disallow the testimony nor any “improper basis” it could have induced.

III.

To win on these unpreserved issue s , Rivas would have to

demonstrate f undamental error. None of Rivas’ arguments

establish that the trial court committed any error , much less

fundamental error. We affirm.

A FFIRMED

.

R OBERTS and W INOKUR

, JJ., concur

.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331

.

_____________________________5 Jessica J. Yeary, Public Defender, and Richard M. Bracey III, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody

, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.