Darrel Fred Swearingen, Appellant, v. State of Florida, Appellee. (2023)

Darrel Swearingen appeals his conviction on a single count of lewd and lascivious molestation of a person under twelve years of age. He argues that that there was fundamental error arising from the victim's emotional testimony at trial. In recounting being molested when she was about six years-old, the victim cried during parts of her direct testimony and cross examination and referred to having her innocence robbed by Appellant. The intensity of crying is not clear from the record. But counsel for both sides paused briefly at certain points to allow the victim to get tissues. According to Appellant, the victim's highly emotional testimony unfairly tipped the scales of justice at his trial and required a mistrial to be declared.

To reverse in a case like this one where the defendant did not object at trial, fundamental error must be demonstrated. See Serrano v. State, 279 So. 3d 296, 304 (Fla. 1st DCA 2019). An error constitutes fundamental error when it “reaches down 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.” Smith v. State, 320 So. 3d 20, 27 (Fla. 2021) (quoting Knight v. State, 286 So. 3d 147, 151 (Fla. 2019)).

The Florida Supreme Court has instructed appellate courts in emotional testimony-involved cases that “appellate courts should defer to trial judges’ judgments and rulings when they cannot glean from the record how intense a witness's outburst was” or its effect on jurors. Id. at 29 (quoting Thomas v. State, 748 So. 2d 970, 980 (Fla. 1999)). In this case, there is no indication that the victim's emotional testimony compromised the validity of the trial, or that the trial court should have taken different, alternative action due to reactions by the jurors to the victim's emotional testimony. See, e.g., id. at 29 (ordering a break in the trial after an outburst and removing the jury so that the witness could compose herself); Arbelaez v. State, 626 So. 2d 169, 176 (Fla. 1993) (removing the jury after an emotional outburst, polling them about the outburst, and giving a curative instruction to disregard the outburst). Thus, we see no basis for finding error by the trial court “who [was] in the best position to assess the intensity of the [victim's emotional testimony] and its potential effect on jurors.” Smith, 320 So. 3d at 29 (quoting Talley v. State, 260 So. 3d 562, 569 n.4 (Fla. 3d DCA 2019)).

Affirmed.

Per Curiam.

Osterhaus, C.J., and B.L. Thomas and Winokur, JJ., concur.