FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-2485 

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RENE ELMER RIVAS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Bay County.

Timothy Register, Judge.

December 6, 2023

NORDBY, 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 we affirm. 

At trial, the victim testified that when she was seven years 

old, Rivas molested and raped her while she was in his care. On a 

separate occasion, also when the victim was seven years old, Rivas 

forced her to perform oral sex on him.

About three and a half years after the incidents, the victim 

confided in her friend about the sexual abuse. The friend

persuaded the victim to tell her mother. The mother contacted the 

authorities, and Rivas eventually faced trial.
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I.

On appeal, Rivas argues that two testimonial statements, one 

from the friend 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 friend’s, who 

testified for the State: 

[The State]: Do you know if [the victim] 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 prejudiced him because it characterized child 

molestation as normalized 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 severe that it reaches “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 friend characterized child molestation as 

normalized behavior among men like Rivas. But the friend did not 

say “child molestation” nor name Rivas when she mentioned 

“normalized behavior.” So the record does not support Rivas’ 

contention. 
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But even if Rivas’ assertion is fair, his legal argument still 

fails. He argues that the friend’s testimony was unfairly

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) (quoting 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, 

nor any rule of evidence that would preclude the statement’s 

admission. 

Even if the testimony were prejudicial, its 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 victim’s direct testimony about what occurred when she was 

seven years old), the friend’s attestation alone does not appear to

have sealed 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 examination on the victim. 

The examination disclosed a tear of the victim’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 victim]?

[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 them, 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 of 
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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.

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

testimony was unduly prejudicial because any reasonable juror 

would develop an affinity for the victim 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 

the State’s favor. 

Rivas correctly asserts that the jury may have found this

testimony emotionally charging. That is true of nearly any

evidence pointing to a child sex crime. Yet juries are generally 

allowed to consider any evidence that tends to prove a material 

fact. See §§ 90.401–.402, Fla. Stat. (2022). Woodham’s testimony 

about the victim’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 issues, Rivas would have to 

demonstrate fundamental error. None of Rivas’ arguments 

establish that the trial court committed any error, much less 

fundamental error. We affirm. 

AFFIRMED.

ROBERTS and WINOKUR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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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.