TROY M. TUTEN

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D20-3671 _____________________________

TROY M. TUTEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Clay County. Michael S. Sharrit, Judge.

September 29, 2021

PER CURIAM.

Appellant, Troy M. Tuten, appeals the trial court’s order denying relief as to six of his claims in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Finding no error in the trial court’s denial of the claims, we affirm the order on appeal. Trial Proceedings

The State charged Appellant with three counts of sexual battery against A.F., his stepdaughter, attempted capital sexual battery against A.F., lewd or lascivious molestation against A.F., lewd or lascivious conduct against W.F., his stepson, and two counts of lewd or lascivious exhibition against W.F. The offenses

Trial counsel: I’m assuming she does know what circumcised means because she doesn’t know that [her brother] wasn’t and she doesn’t know if [Appellant] –

Court: What does that have to do with the child?

Trial counsel: Okay. I’ll just move on to the next question.

. . . .

Court: The objection is sustained.

Thereafter, trial counsel asked A.F. whether she had any idea if Appellant was circumcised, to which she replied, “No. I never knew what circumcised was or what it looked like, if it was or not.” Appellant made A.F. and her boyfriend break up in July 2014. A detective testified that he met Appellant outside the police station before his interview. He read a portion of a letter Appellant wrote in jail twelve days after the interview; Appellant said in part, “I’ve done wrong. I know and I’m sorry for the grief I’ve caused . . . . I made a mistake with the kids and now I could be gone for life. . . . Yes, some things I’m accused of is [sic] true and some are not. I’m not a monster.” Appellant later wrote, “I’m very ashamed of my actions and I beg their forgiveness and I hope one day we can be reunited and my kids can have their daddy. . . . For the stuff we are guilty of trying to get the prosecutor to give us

Why would there be any differences? . . . Talking about something that happened to him when he was⁹, something that happened to her when she was¹⁰ or¹¹ years old, years and years ago. They remember an incident but the details of it are different because for her it’s pretty difficult and for him it was pretty unusual.

I submit to you that [W.F.’s] version is probably the more accurate of the two simply because it was something that was atypical for him. . . .

. . . .

You take the law. You take the facts. You take your common sense and all the information that has been presented and you make a determination and that determination under all the evidence in this case is very clear. This man molested his children.

. . . .

[I]t’s pretty simple. Everything that she did, everything that she lived through, everything that [W.F.] lived through, all of it points to one irrevocable fact, [Appellant] is guilty as charged of everything. . . .

(Emphasis added).

The jury found Appellant guilty of seven of the eight charges. The trial court sentenced Appellant to life imprisonment on two counts, thirty years’ imprisonment on three counts, and fifteen years’ imprisonment on the remaining two counts. Appellant argued on appeal that the trial court erred in not suppressing “his involuntary confession obtained through police coercion.” This

Appellant filed a motion for postconviction relief pursuant to rule 3.850 and a supplement to his motion in which he raised a total of nine claims for relief, only six of which are at issue in this appeal. In Ground 1, Appellant alleged that trial counsel was ineffective for advising him not to testify at trial when he was adamant that his confession was the result of coercion and promises made by the interviewing detectives. According to Appellant, he was promised a lenient sentence and a reunion with his family while in the “station parking lot” before being read his rights. In Ground³, Appellant alleged that trial counsel was ineffective for failing to admit phone records to impeach A.F.’s testimony and corroborate his defense. Appellant claimed that while A.F. testified that she did not communicate with her boyfriend from September 2014 to March 2015, the phone records he obtained showed that A.F. had been in contact with him. In Ground⁴, Appellant alleged that trial counsel was ineffective for failing to impeach A.F. with her prior inconsistent statement that Appellant asked her to suck his penis in their shed. Appellant argued that had trial counsel impeached A.F. with her statement, her trial testimony would have been undermined by showing that she was untruthful. In Ground⁵, Appellant alleged that trial counsel was ineffective in failing to call the technician who analyzed his phone and who found no video, contrary to A.F.’s allegations. Appellant asserted that the analyst would have testified to the procedures that he or she performed on the phone and would have explained how nothing is truly deleted from an electronic device. In Ground⁶, Appellant alleged that trial counsel was ineffective in failing to object during closing argument to the prosecutor’s statements: “I submit to you that [W.F.’s] version is

So I could have – I could have done a better job there but I think my strategy at that point had been – you know – it’s not for me to judge at this point but my strategy then was, look, I wanted to demonstrate the absurdity of [A.F.] making this claim that [Appellant] was asking her

When asked about “the circumcision,” trial counsel testified: The same thing.

I think [Appellant’s] characterization of me is pretty good there. I – an objection was made. I – it was during the flow of the testimony there and I – I really wasn’t expecting an objection. Hindsight again I guess I should have been expecting it. I wanted to develop the testimony that – that [A.F.] had changed the diaper of her younger [brother] before. Therefore, she may or may not know what a circumcised penis is and therefore, well, she knows what a circumcised penis is so you should – you ought to know what [Appellant’s] is or not, and that – I had to admit that Judge Lester kind of threw me off there.

Reading over . . . the trial transcripts I saw I could have done better there. I’m just being candid.

Thereafter, the postconviction court entered an Order Denying Defendant’s Motions. This appeal followed. Analysis

In order to establish a successful ineffective assistance of counsel claim, a defendant must show that counsel’s actions or omissions were deficient and that the deficiency so affected the proceeding that confidence in the outcome is undermined. Johnston v. State, 70 So. 3d 472, 477 (Fla. 2011) (citing Strickland v. Washington, 466 U.S. 668 (1984)). When assessing alleged deficiency, a court must determine whether the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 477. There is a strong presumption that counsel’s actions were reasonable. Id. The prejudice requirement is satisfied if there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been

As for Ground 1 and Appellant’s claim that trial counsel was ineffective in advising him not to testify, the postconviction court determined that Appellant was not entitled to relief because he voluntarily agreed with counsel’s recommendation not to testify and because the recommendation was a reasonable strategic decision. “‘[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.’” Johnston, 70 So. 3d at 477 (citation omitted). The record establishes that trial counsel thoughtfully considered whether Appellant should testify, and reasonably advised him not to do so. As the postconviction court determined, Appellant is not entitled to relief on this claim. Ground³

As to Ground³ and Appellant’s claim that trial counsel was ineffective in failing to impeach A.F. with cellphone records, the postconviction court set forth in part: . . . The Court agrees with counsel that if he would have impeached [A.F.] with the cellphone records, his argument of false allegations could have been strengthened. However, outside of [A.F.’s] testimony, the jury was also presented with [W.F.’s] testimony regarding a sexual encounter between [A.F.] and

We agree with the court and find no error in the denial of relief as to this claim.

Ground⁴

As to Ground⁴ and Appellant’s claim that trial counsel was ineffective in not introducing A.F.’s sworn statement to impeach her, the postconviction court set forth in part: [A.F.’s] sworn statement is not found in the Court’s records, and Defendant did not introduce [her] sworn statement at the evidentiary hearing. . . .

. . . .

Neither [A.F.’s] deposition testimony nor her trial testimony was inconsistent with A.F.’s sworn statement. . . . Therefore, counsel had nothing to impeach.

Even assuming counsel was able to get A.F.’s sworn statement before the jury, the Court is not persuaded that the statement pitted against her inability to recall that statement would have undermined A.F.’s credibility to the extent that the outcome of the trial would have been different. The evidence of the shed incident was not necessary to convict Defendant.

We agree with the court that Appellant failed to establish the necessary prejudice with respect to this claim and that he is, therefore, not entitled to relief.

Ground⁶

In Ground⁶, Appellant claimed that trial counsel was ineffective in failing to object to certain statements made by the prosecutor during his closing argument. The postconviction court found that summary denial of the claim was appropriate because the challenged statements could be reasonably inferred from the evidence presented during trial, the prosecutor did not place the government’s prestige behind the witnesses or indicate that there was undisclosed evidence that proving Appellant’s guilt, and the prosecutor did not state his opinion of Appellant’s guilt. An attorney’s role in closing argument is to help the jury in analyzing and applying the evidence, “including the attorney’s suggestions as to what conclusions can be drawn from the evidence.” Valentine v. State, 98 So. 3d 44, 55 (Fla. 2012) (internal citation omitted). As such, attorneys are given wide latitude during closing argument to review the evidence, draw reasonable inferences from the evidence, and advance all legitimate arguments. Patrick v. State, 104 So. 3d 1046, 1065 (Fla. 2012). It is error for the State to make statements that invite the jury to convict the defendant for some reason other than that it proved its case beyond a reasonable doubt. Warmington v. State, 149 So. 3d 648, 652 (Fla. 2014). For instance, a prosecutor may not express his or her personal opinion on the credibility of the witnesses,

As for Ground⁹ and Appellant’s claim that trial counsel was ineffective in not challenging A.F.’s trial testimony regarding circumcision, the postconviction court set forth in part: The Court does not find that [A.F.’s] deposition testimony and [her] trial testimony regarding circumcision was “wholly inconsistent.” As such, [she] could not be impeached during her trial testimony.

That said, counsel acknowledged at the evidentiary hearing that he could have done a better job handling the circumcision issue. . . .

. . . .

Nonetheless . . . the Court is not persuaded that there was a reasonable probability that the outcome of the trial would have changed had the jury known that [A.F.] knew her younger [brother] was uncircumcised.

Accordingly, we affirm the order on appeal.

AFFIRMED.

LEWIS, MAKAR, and BILBREY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Troy M. Tuten, pro se, Appellant.

Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee.