FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4242
                 _____________________________

LARRY MICHAEL THORNE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

                           May 13, 2019

B.L. THOMAS, C.J.

     Appellant challenges his judgment and sentence for lewd and
lascivious battery and sexual battery, arguing that the court
erroneously excluded critical evidence under the Rape Shield
statute, failed to order a competency evaluation before sentencing,
and imposed a sentence based on an erroneous scoresheet.
                               Facts
     In 2014, Appellant was charged by information with (Count
One) lewd or lascivious battery (victim over 12 but under 16 years
of age), and with (Count Two) sexual battery (slight force), in
violation of sections 800.04(4) and 794.011(5), Florida Statutes.
Before trial, the State filed a motion in limine, in which the State
anticipated that Appellant would attempt to introduce evidence of
the victim’s prior sexual relationships “or make some reference
thereto,” and argued that such evidence was inadmissible under
section 794.022(2), Florida Statutes, commonly referred to as the
“Rape Shield.”
     The court addressed the motion at a pre-trial hearing. The
victim testified that she met Appellant through church when she
was in fifth grade but didn’t establish a relationship with him until
she was a freshman in high school. She testified that Appellant
helped her pay for things, including clothes and a cellphone, and
helped her get a scholarship to a dance academy. The victim
testified that Appellant would occasionally pay for her pedicures
and give her gift cards, and she testified that Appellant stopped
giving gifts to her when she stopped attending church.
     The victim testified that on November 22, 2013, she was
interviewed during a counseling session at the Children’s
Advocacy Center. Parts of a recording of this interview were
played to refresh the victim’s memory. In this interview, she
reported that, when she was ten, her mother’s boyfriend had put
his fingers inside her vagina and had severely beaten her a few
months earlier. During the interview, the victim also described
being touched inappropriately by her great grandfather, and by
someone she referred to as “the Dominican.”
    The victim stated in the interview that the three incidents she
mentioned were the only times she had been touched
inappropriately. The victim testified that she didn’t mention
Appellant during this interview because he asked her not to
because his church “was on the line.”
     Appellant moved to admit evidence that the victim had
reported during three prior instances of sexual battery this
interview. Appellant argued that the victim was asked if she had
been inappropriately touched by anyone, and the victim named
three men but not Appellant. Appellant argued that the victim
was being truthful in the meeting and that she had not been
touched by Appellant at the time of the interview. He argued that,
when considered along with evidence of a falling-out Appellant and
the victim had in December 2013 or January 2014, soon after the
interview, her naming of three assailants other than Appellant
tended to prove the victim’s motivation to fabricate the
accusations. Appellant argued that after he stopped giving her

                                 2
gifts, the victim fabricated an allegation against him, and this
defense was bolstered by evidence that she did not accuse
Appellant, but did name three other men, in the interview less
than a month earlier.
     The court ruled that Appellant would not be allowed to
introduce evidence that the victim had named three men but not
Appellant in the November 22, 2013 interview. The court stated
that the instances were “precluded by the Rape Shield Law” and
were not relevant to Appellant’s defense. The court allowed
Appellant to ask the victim whether she had accused him during
the interview, but not about her reporting of sexual batteries by
three other men.
     At trial, the victim testified before the jury about the
November 22, 2013 interview. The victim testified that the
interviewer asked her if anyone had touched her inappropriately,
and that she did not name Appellant. The victim testified that she
did not name Appellant during that interview because she was
“terrified to tell” and that no one would believe her.
     At sidebar, Appellant argued that, with this testimony, the
victim had opened the door to the evidence of the three prior
reports of sexual battery. He argued that, although she said she
was terrified to name Appellant, she had named three other men
in the same interview. The court denied Appellant’s request to
question the victim about her reporting the three prior sexual
batteries.
     The victim testified that she met Appellant through the
church where she was a member and he was pastor; she was
fourteen when she first began spending time with Appellant. She
testified that she would spend the night at Appellant’s house and
share his bed. The victim testified that on several occasions
Appellant massaged her body and inserted his fingers and tongue
inside her “vaginal area.” The victim testified that, once,
Appellant inserted his penis partially inside her.
    The victim testified that she decided to “cut off all ties” with
Appellant in November 2014 after he showed her a box of condoms
while they were shopping. She testified that this made her
uncomfortable, and after Appellant dropped her off at her family’s


                                 3
home that night, her “family could tell something had happened.”
She testified that she reported Appellant’s actions.
    At trial the State played a recording of a controlled phone call
between Appellant and the victim. On the recording, the victim
asked Appellant “why did you do that to me, though? That’s the
only thing that’s bothering me right now.” Appellant asked, “You
mean us fooling around?” and stated “I don’t know . . . but when
you get two people together . . . done anything.” The victim
continued, “But you never answered my question. Why did you do
that stuff?” Appellant responded “Yeah, it was wrong. I don’t
know.” Appellant stated “Just know that my heart is pure. I’d
never do anything to hurt you ever again. You have my word.”
Appellant then told the victim she “had a way of coming on to guys
quickly.”
     Over Appellant’s objections, two Williams 1 rule witnesses
testified regarding their relationships with Appellant. The first
Williams rule witness was thirty-nine years old at the time of the
trial. She testified she met Appellant when she was thirteen or
fourteen, when she started attending the church where Appellant
was a youth pastor. She testified that she and Appellant began
spending time alone, and that eventually they developed a
physically intimate relationship, during which Appellant
penetrated her vagina with his penis. She testified that she was
fourteen at the time of this relationship with Appellant, which
lasted several months.
     The second Williams rule witness, who was forty-three years
old at the time of trial, testified that she was fourteen or fifteen
when she began “hanging out” with Appellant when he became the
youth pastor at her church. She testified that she would go over to
Appellant’s house alone, and that he would give her massages. She
testified that she was sixteen and Appellant twenty-seven when
they began a physically intimate relationship, involving sexual
intercourse, that lasted “about a year.” On cross examination,
when asked about Appellant’s inability to defend himself against
her testimony twenty-seven years after the incident allegedly



    

. State, 

(Fla. 1959).

                                   4
occurred, the witness replied, “Then he shouldn’t have done it” and
asked counsel “Did he say he didn’t do it?”
     A woman who worked in children’s ministry for the church
where Appellant was a pastor testified that she met the victim
when the victim was fifteen. She testified that she continued to
have contact with Appellant after he was arrested and charged in
the present case, and that she would relay messages to the victim
on behalf of Appellant. The witness testified that she provided gift
cards to the victim and promised her a car and money for an
apartment, if she dropped the charges against Appellant. This
witness conceded that she had been charged with tampering with
a witness related to her contact with the victim and had pleaded
to the lesser included offense of tampering with evidence.
    The jury found Appellant guilty as charged in the information.
     In Appellant’s pre-sentencing report, a probation/parole
officer wrote the following:
    [Appellant] stated he is suffering mentally now since
    being incarcerated. He stated he can hear his deceased
    father’s voice at night. He kept crying while speaking to
    this Officer. He could not concentrate on what this
    Officer asked him. He feels his life is in danger due to
    other inmates.
Appellant’s counsel filed an emergency motion to continue
sentencing, stating that, while meeting with Appellant on August
21 and 22, 2017, “it became apparent to counsel that [Appellant]
was unable to comprehend the issues with regard to sentencing or
to assist his counsel in preparation for sentencing.” Appellant’s
counsel stated that he had “reasonable grounds to believe that
[Appellant] is not mentally competent to proceed.” At a hearing,
Appellant’s counsel testified to reiterate the assertions in his
motion to continue sentencing.
    At the hearing, the State played recordings of jail calls
between Appellant and his mother, which, according to the State,
were made on August 18 and 22, 2017. In the recordings,
Appellant and his mother discussed Appellant’s mother meeting
with an acquaintance, Appellant receiving a birthday card from his
daughter, Appellant requesting an extension of time with the court

                                 5
to accommodate an expert witness, Appellant’s mother gathering
letters from acquaintances to attest to Appellants’ character, and
about gathering witnesses to testify at Appellant’s sentencing
hearing. The State argued that the jail calls showed that
Appellant was participating in the preparation of his sentencing
hearing, and thus understood the proceedings and was competent.
The court stated it had no “reasonable belief that [Appellant]
suffers from any condition, which would subject him to a
competency review,” and did not continue the sentencing hearing.
     On Appellant’s Criminal Punishment Code scoresheet, the
State assessed Appellant 80 points for “Sex Penetration” for both
counts, which increased Appellant’s lowest permissible sentence to
182.5 months. However, the information for Count One alleged
that Appellant had violated section 800.04(4) Florida Statues by
inserting his penis into the victim’s vagina or mouth or by “union”
of his tongue with the victim’s “vaginal area.”           The jury
instructions for both counts stated that the State only needed to
prove that “the sexual organ of [Appellant] penetrated or had
union with the vagina of” the victim. Appellant did not object to
the State’s guidelines sentence calculation based on the
penetration points. The court sentenced Appellant to consecutive
180-month sentences for both counts.
    Appellant filed a motion to correct sentence under Florida
Rule of Criminal Procedure 3.800(b). Appellant argued that
because the jury instructions stated that both counts could be
proven if the jury found either “union” or “penetration,” and
because the verdict form did not specify whether union or
penetration was found, Appellant’s minimum scoresheet sentence
was impermissibly increased by a factor not found by the jury.
     In an order on Appellant’s motion to correct sentence, the
court agreed that Appellant should only have been assessed 40
victim injury points for the sexual contact in Count One, rather
than 80 points for sexual penetration, and ordered a corrected
scoresheet be prepared. However, the court found that any
scoresheet error was harmless, as the court demonstrated, through
its imposition of consecutive 180-month sentences (the maximum
permissible by law), that it would have imposed the same sentence
even with a correct scoresheet.


                                6
                              Analysis
I. Whether the trial court erred in limiting evidence of the victim’s
                       sexual abuse history
     Appellant argues that the trial court erred in excluding his
proffered evidence that the victim had initially identified three
other assailants and did not name him until a later interview.
Appellant argues that this evidence was outside the ambit of the
Rape Shield.
     “As a general rule, a trial court’s ruling on the admissibility of
evidence will not be reversed, absent an abuse of discretion.”
McCray v. State, 

, 649 (Fla. 1st DCA 2006).
“However, a trial court’s discretion over such decisions is limited
by the evidence code and the applicable case law, and its
interpretation of those authorities is subject to de novo review.”
Hendricks v. State, 

, 822 (Fla. 1st DCA 2010).
     “The rape shield law does not exclude evidence that would
otherwise be admissible under the Florida Evidence Code; instead,
section 794.022 is a codification of Florida's relevance rules as
applied to the sexual behavior of victims of sexual crimes.”
Teachman v. State, 44 Fla. L.W. D159 at *3 (Fla. 1st DCA 2019).
    The statute reads, in relevant part:
      (2) Specific instances of prior consensual sexual
    activity between the victim and any person other than the
    offender may not be admitted into evidence in a
    prosecution under s. 787.06, s. 794.011, or s. 800.04.
    However, such evidence may be admitted if it is first
    established to the court in a proceeding in camera that
    such evidence may prove that the defendant was not the
    source of the semen, pregnancy, injury, or disease; or,
    when consent by the victim is at issue, such evidence may
    be admitted if it is first established to the court in a
    proceeding in camera that such evidence tends to
    establish a pattern of conduct or behavior on the part of
    the victim which is so similar to the conduct or behavior
    in the case that it is relevant to the issue of consent.



                                  7
    (3) Notwithstanding any other provision of law,
    reputation evidence relating to a victim’s prior sexual
    conduct or evidence presented for the purpose of showing
    that manner of dress of the victim at the time of the
    offense incited the sexual battery may not be admitted
    into evidence in a prosecution under s. 787.06, s. 794.011,
    or s. 800.04.
§ 794.022(2-3), Fla. Stat. (2018) (emphasis added).
     As the statute plainly states, the Rape Shield “only relates to
consensual sexual activity with a person other than the accused.”
Gomez v. State, 

, 953 (Fla. 4th DCA 2018); see also
McLean v. State, 

, 182 (Fla. 2d DCA 2000) (holding
“[t]he Rape Shield Statute . . . prohibits evidence of specific
instances of prior consensual activity between the victim and any
person other than the offender in sexual battery cases) (emphasis
added)).
     Appellant did not proffer any evidence of the victim’s
consensual sexual acts, but rather proffered an interview in which
the victim reported that three men had sexually battered her.
Because the proffered evidence was of the victim’s allegations of
nonconsensual conduct by other men, the Rape Shield did not
apply. See 

(“The appellant sought to
introduce the victim’s prior allegation against her employer of
sexual assault. As the victim did not attribute this to prior
consensual conduct, it does not fit within the rape shield law”).
However, the evidence was subject to the general rules of
relevance.
     “[R]elevant evidence is that which tends to prove or disprove
a material fact.” Grau v. Branham, 

, 378 (Fla. 4th
DCA 2000) (citing § 90.401, Fla. Stat.). “All relevant evidence is
admissible unless its probative value is substantially outweighed
by the danger of unfair prejudice, or unless otherwise excluded by
law.” 

90.402, 90.403, Fla. Stat.).
     Appellant’s theory of defense was that the victim fabricated
her allegations against him after he stopped giving her gifts, and
Appellant argues that the victim’s accusing three men without
accusing Appellant tended to support this theory. “Because liberty
is at risk in a criminal case, a defendant is afforded wide latitude
                                 8
to develop the motive behind a witness's testimony.” Williams v.
State, 

, 68 (Fla. 4th DCA 2005) (citations omitted).
“The ability to expose an improper impetus for a witness's
testimony is an essential component of the right to a jury trial.”

v. State, 

, 925 (Fla. 1991), the supreme
court recognized the general rule of relevancy regarding the prior
sexual conduct of a sexual battery victim: “a victim of a sexual
assault should not be subjected to having her sexual history
brought up in open court,” but where “application of this rule
interferes with confrontation rights, or otherwise precludes a
defendant from presenting a full and fair defense, the rule must
give way to the defendant's constitutional rights.” Here, the
proffered evidence tended to prove the victim’s motivation to
fabricate her allegations, if the jury believed the victim did not
accuse the defendant in the initial interview because the sexual
activity did not occur. By excluding this evidence, the trial court
prevented Appellant from “presenting a full and fair defense.” 

This was error.

                II. Whether the error was harmless

     The State argues alternatively that any error in excluding the
evidence of the victim’s other accusations was harmless. As the
beneficiary of the error, the State has the burden to show that the
error was harmless. State v. DiGuilio, 

, 1139 (Fla.
1986). “If the appellate court cannot say beyond a reasonable
doubt that the error did not affect the verdict, then the error is by
definition harmful.” 

grappled with this analysis for decades. The
harmless-error test is frequently explained in the negative, defined
by what it is not: “The test is not a sufficiency-of the-evidence, a
correct result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test.” 

“[T]he 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.” 

                                 9
     Although DiGulio states that the harmless error test is not
simply one of overwhelming evidence, later supreme court cases
suggest that the overwhelming evidence of a defendant’s guilt may
be considered in the harmless-error analysis where guilt has been
established by evidence not related to the claimed error. In Cuervo
v. State, 

, 178 (Fla. 2007), the jury heard
unimpeached and corroborated testimony that Cuervo had stabbed
the victim, thus establishing his guilt to the charged offense of
attempted first-degree murder with a weapon. The supreme court
held that “[a]ny error in admitting Cuervo’s confession was
harmless due to the overwhelming evidence of guilt against
Cuervo,” as “[n]one of the facts revealed in Cuervo’s confession
established elements of the crime that were not already
established by the victim’s testimony.” 

In
Chavez v. State, 

, 753 (Fla. 2002), Chavez’s guilt for
the abduction, molestation, and murder of a nine-year-old victim
was established by extensive evidence, including an initial,
uncoerced confession, and the supreme court held that “even
assuming that suppression [of a later confession] were
appropriate, given the overwhelming evidence of Chavez’s guilt, the
error in admitting his last confession would be harmless.”
(emphasis added). In Larkins v. State, 

, 98 (Fla.
1995), “there was direct evidence of Larkins’ guilt, including
eyewitness testimony” separate from the testimony of two
witnesses whom the defense was precluded from cross examining
regarding pending charges against them. The supreme court held
that, “[i]n light of the overwhelming evidence of guilt and the
questionable weight of the evidence of pending charges considered
in the context of the other matters elicited in the proffer, we
conclude that it was harmless error to deny cross-examination of
the [two witnesses] with regard to pending charges.” 

(emphasis added). See also Burr v. State, 

, 280 (Fla.
1991) (holding that while admission of collateral crimes evidence
was error, “we believe this error was harmless in light of the
overwhelming evidence of guilt discernible in our review of the
entire record” where the erroneously admitted evidence was “in
addition to other evidence of guilt,” Burr v. State, 

,
446 (Fla. 1989) (emphasis added)).
    Errors even can also be deemed harmless where the
defendant’s guilt was established by evidence unrelated to the

                                10
error, even where the court did not deem that properly admitted
evidence to be “overwhelming.” Bradley v. State, 

,
656 (Fla. 2017) (holding error related to improper impeachment of
a witness was harmless where the jury also saw murder in patrol-
car video and heard the defendant’s confession); Johnson v. State,

, 964-65 (Fla. 2008) (holding error in denying
defendant a jury trial on the second phase of felony DUI proceeding
was harmless where the defendant’s driving record indicated he
had three requisite DUI convictions, establishing guilt of felony
DUI). Conversely, error can be harmful even where “properly
admitted evidence was sufficient to support a jury verdict of
guilty.” State v. Lee, 

, 136 (Fla. 1988) (holding that,
even though evidence was sufficient to support a guilty verdict, “we
decline to modify the DiGuilio test to require only a showing that
the permissible evidence would support the conviction in order to
find the erroneous admission of improper collateral crime evidence
harmless”). Viewing these two propositions together and
acknowledging that the State bears the burden of proving beyond
a reasonable doubt that error did not affect the verdict, it follows
that an error cannot be harmless if guilt is not established by the
evidence unrelated to the error.
     Here, the trial court erred by excluding admissible evidence
offered to challenge the victim’s credibility during the November
22, 2013, interview. The State argues that its case “does not rest
solely on the victim’s credibility” and that Appellant’s guilt was
established by evidence unconnected to the credibility of the
victim. The State points to the controlled call, the testimony from
two Williams rule witnesses, and testimony that Appellant
attempted to persuade the victim to drop the charges by enlisting
his assistant to offer the victim gifts.
    Appellant argues conversely that because the victim’s
credibility was a key issue in the case, the trial court’s error in
preventing him from challenging that credibility cannot be
harmless beyond a reasonable doubt. Appellant asserts the error
was harmful because he was “prevented from informing the jury
regarding the true nature of the alleged victim’s November 22,
2013, denial.”
    At trial, the State established Appellant’s guilt through
evidence unrelated to the nature of the November 2013 interview.

                                 11
The victim testified in detail about her spending the night at
Appellant’s house and sharing a bed with him and testified that he
inserted his fingers and penis into her vagina. The State bolstered
her credibility through extensive evidence unrelated to the
November 22, 2013, interview; the Williams rule witnesses, with
their devastating answers on cross-examination, the controlled
call, and testimony of evidence tampering all supported the State’s
theory that the victim’s testimony was not fabricated.
      In addition, Appellant was allowed to establish that the victim
did not accuse him during the November interview, although we
recognize that the error allowed the victim to testify she was
“afraid” to report Appellant, when one of the perpetrators that she
did name had beaten her. While Appellant was not allowed to
elicit testimony that the victim accused others who had molested
her, such collateral impeachment did not wholly deprive Appellant
of the opportunity to demonstrate to the jury that the victim had
not accused Appellant when she had the opportunity. And had
Appellant cross examined the victim about the people who had
sexually molested her, there is a reasonable possibility the answer
could have engendered empathy from the jury for the victim,
thereby increasing her credibility. In addition, the victim would
have explained that Appellant urged her not to report him as it
would cause him to lose his church. Also, the victim testified that
she reported Appellant’s actions after he showed her a box of
condoms in November 2014, nearly a year after interview at the
advocacy center. This indicates that, at the time of the interview,
the victim had not yet decided that she wanted to report Appellant.
Thus, we hold the error was harmless beyond a reasonable doubt
in light of the extensive inculpatory evidence and the entire
context of the November 2013 interview.
 III. Whether the trial court erred by not ordering a competency
                            evaluation
     A trial court’s determination whether to hold a competency
hearing is reviewed for an abuse of discretion. Pickles v. State, 

, 692 (Fla. 4th DCA 2008). A trial court only abuses its
discretion if “no reasonable person would take the view adopted by
the trial court.” Scott v. State, 

, 911 (Fla. 1998).



                                 12
    “[A] trial court has a duty to conduct a competency proceeding
when it has ‘reasonable ground[s] to believe that the defendant is
not mentally competent to proceed[.]’” Mars v. State, 

, 345 (Fla. 1st DCA 2018) (quoting Fla. R. Crim P. 3.210(b)).
“Competency to stand trial” means the defendant can consult with
counsel with a reasonable degree of rational understanding and
has a rational and factual understanding of the proceedings. 

hearing on Appellant’s 3.210(b) motion, Appellant’s
counsel testified, as he had sworn in his motion, that Appellant
was unable to comprehend the issues regarding sentencing or to
assist his counsel in preparation for sentencing. The court
considered the presentencing report, and also considered the
recordings of phone calls between Appellant and his mother, made
during the time in which Appellant’s counsel said Appellant was
unresponsive. During the calls, Appellant conversed with his
mother about multiple topics, including getting witnesses to testify
and write letters on his behalf for sentencing.
     Considering this evidence, the court found no reasonable
ground to hold a competency hearing. The evidence presented at
the hearing was conflicting, and “it is the duty of the trial court to
determine what weight should be given to conflicting testimony.”
Mason v. State, 

, 779 (Fla. 1992). Because a
reasonable person could view the recordings of the phone calls
between Appellant and his mother as evidence that Appellant had
a “rational and factual understanding” of the pending proceedings,
the trial court did not abuse its discretion in denying Appellant’s
motion for a competency proceeding.
          IV. Whether the scoresheet error was harmless
     The State concedes that the court erroneously included
“penetration points” on Appellant’s scoresheet but argues that this
error was harmless, because the court indicated it would have
imposed the maximum 360-month sentence regardless of the
lowest permissible sentence. “When scoresheet error is presented
[through, inter alia, a rule 3.800(b) motion], any error is harmless
if the record conclusively shows that the trial court would have
imposed the same sentence using a correct scoresheet.” Brooks v.
State, 

, 241 (Fla. 2007) (emphasis removed). Despite
Appellant’s arguments to the contrary, the sentencing court’s “post

                                 13
hoc” statements in an order on a rule 3.800 motion explaining the
considerations it made during sentencing can serve to conclusively
show that the court would have imposed the same sentence with a
correct scoresheet. White v. State, 

(Fla. 5th DCA
2004) (holding that the record conclusively showed the trial court
would have imposed the same sentence even if it had a correct
scoresheet where the court, in an order on a 3.800 motion, stated
that the scoresheet was used “only as part of the overall sentencing
decision,” and that the sentence “was lawful and correct”).
     The court stated it would have imposed the maximum
sentence regardless of the lowest permissible sentence, as
indicated by its sentencing Appellant to consecutive 180-month
sentences. The scoresheet error was therefore harmless.
    AFFIRMED.
M.K. THOMAS, J., and GAY, SHONNA YOUNG, ASSOCIATE JUDGE,
concur.


                 _____________________________

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


Michael Ufferman, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




                                14