IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA JAMES RICHARD COOPER, Appellant, v. Case No. SC11-341 STATE OF FLORIDA, Appellee. ON DISCRETIONARY REVIEW OF THE DECISION OF THE DISTRICT COURT OF APPEAL FLORIDA, SECOND DISTRICT RESPONDENT S JURISDICTIONAL ANSWER BRIEF PAMELA JO BONDI ATTORNEY GENERAL ROBERT J. KRAUSS Chief Assistant Attorney General Bureau Chief, Tampa Criminal Appeals Florida Bar No. 238538 MARILYN MUIR BECCUE Assistant Attorney General Florida Bar No. 119581 Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 COUNSEL FOR RESPONDENT

TABLE OF CONTENTS PAGE NO. TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 ISSUE: THE DECISION OF THE DISTRICT COURT OF APPEAL DOES NOT DIRECTLY AND EXPRESSLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT OR OF THIS COURT; THEREFORE, THIS COURT SHOULD NOT GRANT DISCRETIONARY REVIEW... 4 CONCLUSION... 10 CERTIFICATE OF SERVICE... 10 CERTIFICATE OF FONT COMPLIANCE... 10 i

TABLE OF CITATIONS Cases In re Holder, 945 So.2d 1130 (Fla. 2006)... 4 Jenkins v. State, 385 So.2d 1356 (Fla. 1980)... 4 Knowles v. State, 848 So.2d 1055 (Fla. 2003)... 5 McLean v. State, 934 So.2d 1248 (Fla. 2006)... 3, 8, 9 Reaves v. State, 485 So.2d 829 (Fla. 1986)... 1 Robertson v. State, 829 So.2d 901 (Fla. 2002)... 5 State v. DiGuilio, 491 So.2d 1129 (Fla. 1986)... passim State v. Lee, 531 So. 2d 133 (Fla. 1988)... 3, 5 The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988)... 4, 5 Statutes Article V, Sec. 3(b), Fla. Const... 5 Rules Fla. R. App. P. 9.210(a)(2)... 10 ii

STATEMENT OF THE CASE AND FACTS Petitioner=s Statement of the Case and Facts is improper in that it cites to and discusses a previous decision from the Second District Court of Appeal in this case. Petitioner successfully sought this Court s discretionary review of that decision and this Court remanded the case back to the Second District for reconsideration. It is the opinion on remand that Petitioner is presently asking this Court to review. Conflict between decisions must appear within the four corners of the lower courts majority decisions in order to be considered express and direct for purposes of this Court=s discretionary jurisdiction. Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). A[I]t is pointless... to include a comprehensive recitation of facts not appearing in the decision below....@ Reaves, 485 So.2d at 830. The relevant facts as set forth in the opinion are that Petitioner was charged with two counts of lewd molestation and four counts of sexual battery on a person in familial custody that occurred over a period of four years. Each count charged Respondent with a single specific type of illegal act within a specified date range. Petitioner admitted committing each type of charged act on at least one occasion during the relevant time period. This admission was supported by the victim s testimony. On appeal, Respondent raised, among other issues, that the 1

trial court erred by permitting the State to present evidence of numerous instances of uncharged sex acts occurring during the relevant time period. The Second District Court of Appeal agreed that error had occurred but found it to be harmless under the specific facts of this case. Respondent successfully sought discretionary review in this Court alleging the Second District Court of Appeal s opinion conflicted with this Court s opinion in State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) regarding the proper application of the harmless-error test. This Court agreed and remanded the case back to the Second District to reconsider its harmless-error analysis. On remand, the Second District discussed DiGuilio at length and, after an examination of the entire record - including a close examination of the permissible evidence on which the jury could have legitimately relied, and an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict, ultimately determined that the error in this case was harmless beyond a reasonable doubt. Petitioner once again seeks this Court s discretionary review. 2

SUMMARY OF THE ARGUMENT The decision in this case does not expressly and directly conflict with either State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) or State v. Lee, 848 So. 2d 133 (Fla. 1988). Furthermore, even if misapplication of the law were a proper basis for this Court s review, as Petitioner argues, the Second District Court of Appeal properly applied this Court s precedent in conducting the harmless-error analysis in this case. Moreover, there is no conflict on the face of the two opinions between the Second District s opinion in this case and this Court s opinion in McLean v. State, 934 So.2d 1248 (Fla. 2006). The McLean opinion deals only with the constitutionality of and application of 90.404(2)(b) in child molestation cases where the identity of the perpetrator is not at issue. There is no mention of, let alone an analysis of, the harmless-error standard. Likewise, 90.404(2)(b) was not at issue in the instant case. This Court should deny review. 3

ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL DOES NOT DIRECTLY AND EXPRESSLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT OR OF THIS COURT; THEREFORE, THIS COURT SHOULD NOT GRANT DISCRETIONARY REVIEW. The jurisdiction of this Court is limited to a narrow class of cases enumerated in the Florida Constitution. For example, this Court may review any decision of a district court of appeal that Aexpressly and directly conflicts with the decision of another district court of appeal, or with the Supreme Court on the same question of law.@ Fla. Const.Art.V, '3(b)(3). The issue of the Court s jurisdiction is a threshold matter that must be addressed before the Court can reach the merits of the issue. In re Holder, 945 So.2d 1130, 1134 (Fla. 2006). The rationale for limiting this Court=s jurisdiction is the recognition that district courts Aare courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy.@ Jenkins v. State, 385 So.2d 1356, 1358 (Fla. 1980). As this Court explained in The Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla. 1988), the state constitution creates two separate concepts regarding this Court=s discretionary review. 4

The first concept is the broad general grant of subject-matter jurisdiction. The second more limited concept is a constitutional command as to how this Court may exercise its discretion in accepting jurisdiction. 530 So. 2d at 288. In order for this Court to exercise its discretionary jurisdiction based on express and direct conflict, the conflict must appear on the face of the allegedly conflicting opinions. Reaves, 485 So.2d 830. The standard is express and direct conflict; not misapplication of the law. See, Knowles v. State, 848 So.2d 1055, 1059 (Fla. 2003)(Wells, J. dissenting)(neither the concept nor words misapplication jurisdiction appear in Article V, Sec. 3(b), Fla. Const.) In order for a misapplication of the law to provide review jurisdiction, the misapplication must result in express and direct conflict with the decision of another district or this Court. Contrary to Petitioner s assertion, the decision in this case does not expressly and directly conflict with either State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) or State v. Lee, 848 So. 2d 133 (Fla. 1988). Furthermore, even if misapplication of the law were a proper basis for this Court s review, the decision below properly applied this Court s precedent in conducting the harmless-error analysis in this case. See, Robertson v. State, 829 So.2d 901 (Fla. 2002). In DiGuilio, this Court set forth the standard for a 5

harmless-error analysis. This Court stated: The harmless error test, as set forth in Chapman 1 and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. See Chapman, 386 U.S. at 24. Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict. DiGuilio, 491 So.2d at 1135. This Court reiterated the standard in Lee. The Second District Court of Appeal properly applied the standard in this case. This Court has stated that in determining whether the introduction to inadmissible evidence contributed to the conviction an examination of the admissible evidence is not only permitted, but required. The Second District Court of Appeal correctly applied the harmless-error test. After discussing DiGuilio at length, the district court stated: Turning to this case, we find that, unlike in DiGuilio, the admissible evidence against Cooper was conclusive. The victim clearly testified that he and Cooper had engaged in 1 Chapman, 386 U.S. 18. 6

at least one act of each type charged by the State during the period of time covered by the information. More important, the State introduced Cooper's taped statement, in which he specifically admitted to engaging in at least one act of each type charged by the State with the victim. While there were some discrepancies between the victim's testimony and Cooper's statement, those discrepancies went to issues such as the time the acts had started and who initiated the contact-not to whether the acts had occurred at all. And while Cooper did introduce evidence to show that the victim had once denied that any sexual acts had occurred to an investigator from the Department of Children and Family Services, this evidence conflicted with Cooper's own taped admission. Therefore, the admissible evidence against Cooper was extremely strong. As to the inadmissible evidence, the State did introduce evidence that Cooper had repeatedly engaged in this conduct with the victim during a period of about four years even though the information charged only six discrete instances of improper conduct. However, while the State elicited testimony from the victim that these acts had happened once or twice a week from the time he was thirteen until he was seventeen, the State's focus remained primarily on proving the individual acts. In closing, the State argued that the question for the jury was not whether each act happened more than once, but rather whether each of the different acts alleged in the information had occurred at least once. And while the State did, later in its initial closing argument, make reference to the multiple incidents, it made no reference to the repeated nature of the abuse in its rebuttal closing, and it did not make the repeated nature of the abuse a theme in any part of its case. 7

Considering this evidence in light of the DiGuilio standard, while the State did elicit improper testimony concerning the frequency of the acts by Cooper, we conclude that there is no reasonable possibility that this inadmissible evidence contributed to the verdict. The State charged Cooper with six separate counts of sexual activity. Thus, regardless of the time frame involved or the repeated nature of the abuse, the jury was going to hear evidence of six separate sexual incidents between Cooper and the victim. The victim's testimony was clear and unequivocal, and Cooper himself admitted to these acts in a taped statement that was played for the jury. Therefore, because on this record there is no reasonable possibility that the erroneously admitted evidence contributed to the jury's verdict, we find the error harmless and affirm Cooper's convictions. On its face, the decision in this case does not expressly and directly conflict with the decisions in DiGuilio or Lee. In fact, the Second District conscientiously applied the harmlesserror test and fully set forth its reasoning as guidance for litigants and courts as required by DiGuilio, 491 So.2d at 1139. Petitioner merely disagrees with the district court s analysis. This is not a basis for further review by this Court. Therefore, this Court should not exercise its discretionary jurisdiction in this case. Additionally, Petitioner alleges that the opinion in this case expressly and directly conflicts with this Court s decision in McLean v. State, 934 So.2d 1248 (Fla. 2006). In his attempt to establish conflict, Petitioner cites what at best is dicta 8

from this Court s McLean opinion, wherein this Court noted, Because of the commonly held belief that individuals who commit sexual assaults are more likely to recidivate as well as societal outrage directed at child molesters, the admission of prior acts of child molestation has an even greater potential for unfair prejudice than the admission of other collateral crimes. McLean, 934 So.2d at 1256. The actual legal issue before this Court in McLean was, Does section 90.404(2)(b) 2, Florida Statutes (2001), violate due process when applied in a case in which identity is not an issue? This Court s opinion deals only with the constitutionality of and application of the statute in child molestation cases where the identity of the perpetrator is not at issue. There is no mention of, let alone an analysis of, the harmless-error standard. Likewise, 90.404(2)(b) was not at issue in the instant case. Therefore, there is no conflict on the face of the two opinions between the Second District s opinion in this case and this Court s opinion in McLean. Petitioner has failed to establish a basis upon which this court can exercise its discretionary jurisdiction. 2 Section 90.404(2)(b) provides that in a case in which a defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. 9

CONCLUSION Respondent respectfully requests that this Court not exercise its discretionary review because Petitioner has failed to provide a legitimate basis for such review. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to WILLIAM SHARWELL, Assistant Public Defender, Office of the Public Defender, P.O. Box 9000 Drawer PD, Bartow, Florida 33831 this day of March, 2011. I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P. 9.210(a)(2). CERTIFICATE OF FONT COMPLIANCE Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL ROBERT J. KRAUSS Chief Assistant Attorney General Bureau Chief, Tampa Criminal Appeals Florida Bar No. 238538 MARILYN MUIR BECCUE Assistant Attorney General Florida Bar No. 119581 Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 10