Portillo v. State
2017 Fla. App. LEXIS 2348
| Fla. Dist. Ct. App. | 2017Background
- Defendant Pedro Portillo convicted of attempted sexual battery for alleged digital penetration; sentenced to 3 years prison and 2 years probation and appealed.
- Victim testified on direct that she had prior sexual experience with another man and that experience let her recognize Portillo’s conduct as an attempt to "stick his fingers in my vagina."
- Defense objected at trial only on the ground "Relevance;" the objection was overruled and the testimony was admitted.
- On appeal Portillo argued the testimony violated Florida's Rape Shield Law, § 794.022(2), because it referenced specific instances of the victim’s prior consensual sexual activity with another person.
- The majority affirmed, holding the claim both unpreserved and substantively without merit; any error, they held, was harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether victim's reference to prior consensual sexual activity violated § 794.022(2) (Rape Shield) | State relied on victim’s prior experience to prove defendant’s intent to digitally penetrate. | Portillo argued the Rape Shield barred admission of specific prior consensual sexual activity, so testimony was improper. | No — appeal rejected: objection not preserved; Rape Shield does not bar victim's voluntary testimony on direct; any error harmless. |
| Whether defense preserved the Rape Shield objection | N/A | Portillo contends relevance objection preserved the issue (relevancy under rape‑shield principle). | No — two‑word relevance objection insufficient to alert trial court to novel Rape Shield claim. |
| Proper scope/purpose of § 794.022(2) | N/A | Portillo (and dissent) argue statute is neutral and should bar admission regardless of proponent (benefits victim and defendant equally). | Majority: statute intended to shield victims from abusive defense inquiry; not meant to limit victim's voluntary direct testimony. |
| Prejudice / harmless‑error inquiry | N/A | Portillo argues admission was harmful and required reversal. | Held harmless — reference was brief, not focal, and unlikely to have affected verdict. |
Key Cases Cited
- Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013) (defines/clarifies attempted digital penetration elements)
- Richemond v. State, 126 So.3d 281 (Fla. 3d DCA 2011) (preservation requires specificity to apprise trial court of grounds)
- DiGuilio v. State, 491 So.2d 1129 (Fla. 1986) (harmless‑error standard)
- Marr v. State, 494 So.2d 1139 (Fla. 1986) (Rape Shield statutes codify relevancy rule excluding prior sexual activity)
- Docekal v. State, 929 So.2d 1139 (Fla. 3d DCA 2006) (victim opening the door permits cross‑examination about prior sexual history)
- Larimore v. State, 2 So.3d 101 (Fla. 2008) (statutory construction principles; legislative intent guides interpretation)
- Johnson v. Moore, 472 F.Supp.2d 1344 (M.D. Fla. 2007) (discusses Rape Shield purposes: privacy, encourage reporting, avoid prejudice)