### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT
Jul y Term 2014

MICHAEL MANSUETO

, Appellant,

v.

STATE OF FLORIDA

, Appellee

.

No. 4D 12

- 522

[ October 8, 2014 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County ; Thomas M. Lynch, IV , Judge; L.T. Case No. 08

- 012803

CF10A

.

Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,

Assis tant Attorney General, West Palm Beach, for appellee.

C IKLIN
, J

.

Michael Mansueto appeal s his conviction s for four counts of sexual battery on a child while in a position of familial or custodial authority

committed against his biological daughter

. He argue s that the trial court erred by permitting a witness to vouch for the credibility of a Williams 1 rule witness and by allowing the testimony of the Williams rule witness to

become a feature of the trial. Because Mansueto failed to properly object

to t he error s now alleged on appeal

, we affirm.

Before trial commenced, the s tate filed a notice of intent to call the

victim’s sister ( Mansueto’s other daughter ) as a Williams rule witness. Following an evidentiary hearing on the state’s notice of intent

, t he trial

court properly found that the evidence was reliable and showed a common scheme and plan. Mansueto then sought to exclude references

to the Williams rule evidence in both opening statements and closing

1 Williams v. State , 117 So. 2d 473 (Fla. 1960).2

arguments . T he trial court denied his request, but explained that it

would consider any properly made objection regarding the use of the

Williams evidence as a feature at trial

.

The victim testified at trial regarding the sexual battery she suffered

as a minor at the hands of Ma nsueto , describing a quid pro quo system

in which Mansueto would give her money, privileges, or permission for certain activities in exchange for submitting t o sexual acts. The victim also described a birthmark on Mansueto’s penis, which was corroborated with a photograph entered into evidence by the state. The victim’s sister (“sister”) testified to also being a victim of Mansueto under a similar pattern of abuse and confirmed that the state’s photograph correctly depicted Mansueto

. Mansueto made no obj ection to the Williams rule testimony becoming a feature. 2

The defense vigorously cross

- examined the sister about prior representations the sister allegedly made to a detective in which she

indicated that she had not been molested by Mansueto . Additionally, the

defense introduced into evidence a sketch of Mansueto’s birthmark drawn by the sister , apparently to show vari ations between the drawing

and the previously admitted photograph

.

After the state rested, t he defense called both the mothe r of the victim (“mother”) and the sister. The mother testified to a prior false allegation

of abuse made by the victim against “Norman,” the victim’s stepfather (and mother’s second husband)

.

On cross

- examination by the state, the mother testified tha t the

victim and the sister together told their mother that Mansueto had

molested them

, which the mother believed to be true . When the state

asked the mother about her belief in the accusations against Mansueto

versus her conclusion that the accusations a gainst Norman were false

, the mother clarified that she believed the allegations against Mansueto

because the sister (apparently unlike the victim) never lied to her. The

2 Williams rule evidence becomes a proscribed “feature” of trial “ when inqu iry

into the collateral crimes ‘ transcend[s] the bounds of relevancy to the charge being tried’ and the prosecution ‘ devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the

defendant. ’ ” Conde v. State , 860 So. 2d 930, 945 (Fla. 2003) (quoting Williams

, 117 So. 2d at 475 ). Simply put, Williams rule evidence is a feature if it

‘ “o verwhelms’ evid ence of the charged crime and becomes ‘an impermissible attack on the defendant's character or propensity to commit crimes.’” Grier v.

State , 27 So. 3d 97, 101 (Fla. 4th DCA 2009) ( quoting Samuels v. State , 11 So. 3d 413, 418 (Fla. 4th DCA 2009) )

.3

defense objected to the question and asserted, “It’s the ultimate issue for the jury.” The tria l court overruled the objection. The jury found

Mansueto guilty.

On appeal, Mansueto argues that the trial court erred in admitting the mother’s testimony concerning the vera city of the sister and further asserts that the trial court committed error by permitting Williams rule

evidence to become a feature at trial. T he state argues that the errors raised by Mansueto were not preserved for review because Mansueto

failed to lod ge proper objections. We agree

.

Generally, proper preservation of an issue for appellate review requires three components: (1) a timely, contemporaneous objection, (2) a stated legal ground for the objection, and (3) to be cognizable on appeal, the argum ent “ must be the specific contention asserted as legal ground for the objection, exception, or motion below.” State v. Calvert , 15 So. 3d 946, 948 (Fla. 4th DCA 2009) (citations omitted) (emphasis in original). Issues not properly raised in the lower tribunal are typically waived on appeal save for unpreserved issues that constitute

fundamental error

. See Steinhorst v. State , 412 So. 2d 332, 338 (Fla. 1982).

Stated another way, “ to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State

, 471 So. 2d 32, 35 (Fla. 1985) (citations omitted). Below, Mans ueto objected and asserted, “I t’s the ultimate issue for the jury.” Because the “ultimate issue” ground alleged as the legal basis of the objection during

trial is distinct from the error now alleged on appeal ( improper vouching for a witness’s credibility )

, Mansueto’s issue on appeal was not preserved

for our review.

As to Mansueto ’s issue on appeal alleging that the trial court erred in permitting the Williams rule evidence to be com e a feature at trial

, Mansueto likewise failed to lodge an objection at the time the evidence

was being presented below . The contemporaneous objection rule requires a party to object during trial at the time of the alleged error.

Overton v. State , 976 So. 2d 536, 574 (Fla. 2007). The rationale for the contemporaneous objection rule “is two

- fold: 1) to require an objection at the time the error is committed to give the trial court the opportunity to correct it; and 2) to prevent a litigant from al lowing an error to go unchallenged so it may be used as a tactical advantage later.” Crumbley

v. State , 876 So. 2d 599, 601 (Fla. 5th DCA 2004) (citing F.B. v. State

,4

852 So. 2d 226 (Fla. 2003))

. 3

I t cannot be said that the errors alleged by Mansueto on appeal were fundamental in nature and thus we affirm.

Affirmed.

S TEVENSON and F ORST , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

3 In some instances, assertion of a contemporaneous objection may raise concerns of a speaking objection particularly when a trial judge has issued an adamant pre

- trial order in limine . The issue of speaking objections and the need to seek a bench conference has previously been addressed by this court:

Judges frown on speaking objections and often both law yers and trial judges do not want the jury to hear the argument on the objection because of a legitimate concern that a discussion in front of the jury may only highlight the error. Yet, a properly articulated specific objection is necessary not only for appellate preservation but to assist the trial court in making a proper ruling as well. Therefore, to address the tension between the need for a specific objection and the desire to shield the jury from the argument, often either the trial judge or the la wyer will ask that the objection be heard at sidebar.

Datus v. State , 126 So. 3d 363, 366 (Fla. 4th DCA 2013) (quoting Salazar v.

State , 991 So. 2d 364, 380

– 81 (Fla. 2008) (Pariente, J., specially concurring) (footnote omitted)).

Needless to say however, there is no viable substitute for well

- versed trial advocacy and no shortcut for acquiring a firm grasp on the articulation of proper and contemporaneous trial objections.