Dimitric Jermaine Koonce v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
DIMITRIC JERMAINE KOONCE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2024-1016
[November 12, 2025]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach 	County; 	Sherri 	L. 	Collins, 	Judge; 	L.T. 	Case 	No. 	50-2022-CF-
001788-AXXX-MB.
Daniel Eisinger, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.
James Uthmeier, Attorney General, Tallahassee, and Richard Valuntas,
Senior Assistant Attorney General, West Palm Beach, for appellee.
S HAW , J.
This appeal follows the defendant’s conviction at trial of four counts of
sexual 	battery 	on 	a 	child 	and 	one 	count 	of 	transmission 	of 	child
pornography. 	The defendant raises multiple issues on appeal. 	In broad
strokes, the defendant claims the trial court erred in five respects: (1)
admitting evidence from outside the time period charged in the amended
information; (2) using incorrect jury instructions; (3) admitting irrelevant
evidence; (4) questioning one prospective juror outside the defendant’s
presence; and (5) depriving the defendant of his constitutional right to a
twelve-person jury. For the reasons discussed more fully below, we affirm.
I. 	BACKGROUND
The State charged the defendant by an amended information with five
counts, all related to sexual abuse of the same victim: (1) sexual battery
on a person less than twelve years of age, alleged to have occurred on or
between January 1, 2017 and August 28, 2019, based on the defendant’s
penis penetrating or having union with the victim’s mouth; (2) sexual

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battery with a child between twelve and eighteen years old, while in a
position of familial or custodial authority over the victim, alleged to have
occurred between August 29, 2019 and May 31, 2020, based on the
defendant’s sexual organ penetrating or having union with the victim’s
mouth; (3) transmission of child pornography; (4) sexual battery with a
child between twelve and eighteen years old, while in a position of familial
or custodial authority over the victim, alleged to have occurred between
August 29, 2019 and May 31, 2020, based on the defendant’s sexual organ
penetrating or having union with the victim’s vagina; and (5) sexual battery
with a child between twelve and eighteen years old, while in a position of
familial or custodial authority over the victim, alleged to have occurred
between August 29, 2019 and May 31, 2020, based on the defendant’s
finger penetrating the victim’s vagina.
The 	case 	proceeded 	to 	a 	jury 	trial. 	The 	trial 	court 	rejected 	the
defendant’s argument that he was entitled to a twelve-person jury under
the Sixth and Fourteenth Amendments of the United States Constitution,
and empaneled a six-person jury.
At trial, the jury heard evidence of the relationship between the victim
and the defendant. 	The victim was born in August 2007. 	The defendant
was named on the victim’s birth certificate and believed he was her father,
though the victim’s mother testified at trial that he was not the victim’s
biological father. 	Instead, the defendant was the biological father of the
victim’s half-brother.
For the first few years of the children’s lives, their mother raised the
victim and her half-brother as a single parent and did not seek child
support from the defendant. 	When the victim started kindergarten, the
defendant took custody of the children and sought child support from the
mother, which she was ordered to pay.
The victim testified that during the first time period when she lived with
the defendant (kindergarten through fourth or fifth grade), the defendant
forced the victim to perform oral sex on him numerous times. 	She
estimated that it occurred between two or three times per week. The victim
and her half-brother then returned to their mother’s custody for a year or
two.
When the victim was in sixth grade, the defendant regained custody of
the children. 	The victim testified that during this second time period, the
defendant resumed sexually abusing her. 	The victim testified about
multiple instances of the defendant forcing her to perform oral sex on him
or sticking his finger into her vagina. 	The victim also described at least

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two 	incidents 	of 	the 	defendant 	forcing 	her 	to 	have 	vaginal 	sexual
intercourse with him.
On May 31, 2020, after the victim texted her mother that the defendant
had come into her room late at night, the mother contacted the Florida
Department of Children and Families. 	Police came to the defendant’s
house, spoke with the victim, and seized some of the victim’s clothing and
belongings as evidence.
Forensic evidence revealed male DNA on the victim’s underwear and
her blue blanket, and stains on the blanket contained sperm cells and
seminal fluid. 	Two semen stains from the victim’s underwear were tested
and each produced a DNA profile of two individuals. It was 110,050 times
more likely that the DNA from the first stain came from the victim and the
defendant than from the victim and an unknown person, and it was
261,160 times more likely that the DNA from the second stain came from
the victim and the defendant than from the victim and an unknown
person. 	The DNA profiles from the semen stains on the victim’s blue
blanket were between one quintillion and one nonillion times more likely
to have come from the victim and the defendant than from the victim and
an unknown person.
In 	addition 	to 	this 	forensic 	evidence, 	law 	enforcement 	viewed
conversations and a video from the victim’s Facebook Messenger account
and obtained the defendant’s Facebook records. 	Of particular note is a
conversation 	between 	the 	victim 	and 	the 	defendant 	on 	Facebook
Messenger on May 6, 2020. 	The conversation contained sexually explicit
messages from the defendant and a sexually explicit video showing the
defendant putting his fingers in the victim’s vagina.
After the State rested its case, the parties discussed jury instructions.
The 	defendant’s 	counsel 	did 	not 	object 	to 	the 	proposed 	instructions
defining each charge’s elements.
The defendant took the stand in his defense. He denied doing anything
sexually inappropriate with the victim and denied sending the victim the
sexually explicit messages and video on Facebook Messenger.
After the defendant rested his case, the trial court read instructions to
the jury. 	Following deliberations, the jury found the defendant guilty as
charged on all five counts. The jury also found that the defendant’s penis
penetrated the victim’s mouth, and that the defendant’s penis penetrated
the victim’s vagina.

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II. 	STANDARDS OF REVIEW
Several standards govern our review in this appeal. First, the defendant
raises several issues that were unpreserved, but contends that we must
address those issues, because fundamental error occurred. See Mansueto
v. State, 148 So. 3d 813, 815 (Fla. 4th DCA 2014) (“Issues not properly
raised 	in 	the 	lower 	tribunal 	are 	typically 	waived 	on 	appeal 	save 	for
unpreserved issues that constitute fundamental error.”). 	Fundamental
error is error that “‘reach[es] 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.’” Polls v. State, 134 So. 3d 1068, 1070 (Fla.
4th DCA 2013) (quoting State v. Delva, 575 So. 2d 643, 644–45 (Fla.
1991)). 	We review issues of unpreserved fundamental error under the de
novo standard. 	See Holton v. State, 318 So. 3d 654, 658 (Fla. 1st DCA
2021).
The defendant also argues that the trial court improperly admitted
irrelevant evidence. 	“‘The standard of review for admissibility of evidence
is abuse of discretion, limited by the rules of evidence.’” Jeanbart v. State,
299 So. 3d 3, 7 (Fla. 4th DCA 2020) (quoting Holloway v. State, 114 So.
3d 296, 296 (Fla. 4th DCA 2013)).
Finally, 	the 	defendant 	raises 	two 	constitutional 	claims, 	which 	are
reviewed de novo. 	See Davis v. State, 227 So. 3d 137, 139 (Fla. 4th DCA
2017); Singletary v. State, 338 So. 3d 318, 320 (Fla. 3d DCA 2022) (“A
claim 	arguing 	a 	denial 	of 	due 	process, 	a 	constitutional 	question, 	is
reviewed de novo.”).
III. 	DISCUSSION
We divide our discussion into four parts. 	First, we explain that no
fundamental error occurred at the trial. 	Second, we explain that the trial
court did not abuse its discretion in allowing the victim’s mother to testify
that she did not seek child support from the defendant. Third, we explain
that the defendant was not denied due process when the trial court
questioned one juror in the defendant’s absence. 	Finally, we explain that
a six-person jury was constitutional in this case.

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A. No Fundamental Error Occurred at Trial
The 	defendant 	argues 	that 	fundamental 	error 	occurred 	as 	to 	the
conviction for Count I because the trial court allowed testimony about
sexual offenses committed against the victim by the defendant prior to the
earliest time period charged in the amended information (January 1,
2017). 	Relatedly, the defendant argues that the prosecution’s use of this
collateral crime evidence was so extensive and improper that it requires
the reversal of all his convictions.
These arguments fail. 	Extensive evidence existed for the jury to find
that the defendant made the victim perform oral sex on him between both
January 1, 2017 and August 28, 2019 (Count I), and between August 29,
2019 and May 31, 2020 (Count II). Moreover, the evidence of sexual abuse
prior to January 1, 2017 was a rather limited portion of the trial.
Furthermore, section 90.404(2), Florida Statutes (2016), provides that
evidence of a defendant’s commission of other acts of child molestation is
admissible and may be considered for its bearing on any matter to which
it is relevant. 	Thus, no error occurred here. 	Though the State does not
raise this point, we can affirm on this basis under the tipsy coachman
doctrine. 	See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“[T]he
tipsy coachman doctrine … allows an appellate court to affirm a trial court
that reaches the right result, but for the wrong reasons[,] so long as there
is any basis which would support the judgment in the record.”) (cleaned
up).
Next, the defendant argues that the trial court committed fundamental
error as to Counts IV and V by instructing the jury using the wrong
definition of “sexual battery.” 	The trial court used the definition found in
the 2022 version of section 794.011, Florida Statutes, rather than the
statutory definition at the time of the crimes. 	While this was an error, it
was not fundamental. 	The convictions could have been obtained without
the assistance of the error. The victim’s testimony about being penetrated
in her “vagina” and other evidence (including a video of the defendant
sticking his finger in her vagina and DNA evidence from the victim’s
underwear) were sufficient to convict the defendant under the “sexual
battery” definitions in both versions of section 794.011, Florida Statutes.
This is fatal to the defendant’s argument that his constitutional rights were
violated by the erroneous jury instruction. 	See Bartels v. State, 410 So.
3d 21 (Fla. 4th DCA 2025) (in a child sexual battery case, finding no
fundamental error where the trial court used the wrong jury instruction
because the evidence was sufficient to convict under either the old or new
version of the statute).

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The defendant makes the same argument as to Count III. 	In the jury
instructions, the trial court erroneously used the “child pornography”
definition from the 2022 version of section 847.001(3), Florida Statutes,
rather than the statutory definition at the time of the crime. 	Again, while
the trial court erred in instructing the jury with the 2022 definition, the
error was not fundamental. 	The state presented sufficient evidence to
convict 	the 	defendant 	under 	either 	definition 	of 	“child 	pornography.”
Moreover, the error did not relate to an element in dispute.
B. The Trial Court Did Not Abuse Its Discretion by Allowing the Victim’s
Mother to Testify That She Did Not Seek Child Support from the
Defendant
The trial court allowed the victim’s mother to testify that she did not
seek child support from the defendant. 	The defendant contends this
testimony was irrelevant. It was not. “To be relevant, evidence must prove
or disprove a fact in issue.” 	Frizzle v. State, 982 So. 2d 1292, 1293 (Fla.
4th DCA 2008) (citing § 90.401, Fla. Stat. (2006); Coler v. State, 418 So.
2d 238, 239 (Fla. 1982)). 	Here, this testimony was highly relevant to the
defendant’s defense, which was that the mother and victim fabricated
these allegations because the defendant and the victim’s mother were
involved in a nasty child custody battle and the mother was very unhappy
with the defendant for seeking child support. 	No error occurred.
C. The Defendant Was Not Denied Due Process during the Jury Selection
Process
The defendant argues that he was denied due process when he was
absent during the trial court’s questioning of a prospective juror. 	During
voir dire, while the jurors had been excused for lunch, a prospective juror
requested to speak with the trial court. 	The defendant was in a holding
cell and not in the courtroom at this time. 	The trial court asked the
defendant’s counsel if he consented to the court speaking with the juror
while the defendant was absent, and counsel assented. 	Outside the
presence of the other jurors, the juror expressed concern with her address
being published if she were to be selected for the jury. 	Neither attorney
participated in this conversation between the prospective juror and the
trial court. 	Later, both parties agreed to this juror’s dismissal for cause
(specifically, a medical condition).
No due process violation occurred here. 	The defendant’s reliance on
Francis v. State, 413 So. 2d 1175 (Fla. 1982), is misplaced. In Francis, the
defendant 	was 	absent 	while 	the 	parties 	exercised 	their 	peremptory

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challenges, which is a crucial stage of the trial. 	Id. at 1178. 	Here, the
defendant was present for almost the entirety of voir dire, including when
all challenges were made. 	The prospective juror who spoke with the trial
court outside the presence of the defendant and the other jurors was
dismissed for a cause unrelated to the matter which she had discussed
with the trial court. Even if it were error for the trial court to have spoken
with the juror outside of the defendant’s presence, it was not reversible
error.
D. A Six-Person Jury Was Proper in This Case
Here, over the defendant’s objection, the trial court empaneled a six-
person jury. 	Under the Florida Constitution, “the qualifications and the
numbers of jurors, not fewer than six, shall be fixed by law.” 	Fla. Const.
art. I, § 22. 	Florida law provides that “[t]welve persons shall constitute a
jury to try all capital cases, and six persons shall constitute a jury to try
all other criminal cases.” 	§ 913.10, Fla. Stat. (2020). 	However, the
defendant argues that a twelve-person jury was required by the Sixth and
Fourteenth 	Amendments 	to 	the 	United 	States 	Constitution. 	As 	the
defendant 	acknowledges, 	binding 	precedent 	forecloses 	this 	argument.
See Williams v. Florida, 399 U.S. 78 (1970) (Florida’s use of a six-person
jury 	does 	not 	violate 	the 	Sixth 	or 	Fourteenth 	Amendment); 	see also
Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th DCA 2022) (relying on
Williams to conclude that a six-person jury was constitutional in a case
where a defendant was convicted of sexual battery on a child under twelve
years old, among other crimes).
In State v. Hogan, 451 So. 2d 844 (Fla. 1984), the Florida Supreme
Court held that sexual battery on a person less than twelve years of age is
not a capital offense for purposes of determining whether the twelve-
person jury is required, because the Eighth Amendment to the United
States Constitution prohibits a death sentence for capital sexual battery.
However, 	two 	years 	ago, 	the 	Florida 	legislature 	amended 	section
794.011(2)(a) to authorize the death penalty for capital sexual battery. See
Ch. 2023-25, § 1 Laws of Fla. (eff. Oct. 1, 2023).
We need not decide now whether Hogan should be revisited in light of
the 2023 amendment. In this case, the defendant’s crimes were committed
between January 1, 2017 and May 31, 2020. 	“[P]ursuant to article X,
section 9, of the Florida Constitution, ‘the punishment in effect at the time
of the crime controls the penalty at sentencing.’” Morales-Alaffita v. State,
376 So. 3d 791, 792–93 n.1 (Fla. 2d DCA 2023) (quoting State v. Reininger,
254 So. 3d 996, 999 (Fla. 4th DCA 2018)). 	Thus, we look to the 2020
version of section 794.011(2)(a) when considering whether sexual battery

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on a child is a capital offense in this case for purposes of determining the
appropriate 	jury 	size. 	Under 	this 	analysis, 	a 	six-person 	jury 	was
constitutional. 	See Guzman, 350 So. 3d at 73; see also Morales-Alaffita,
376 So. 3d at 792 (“At the time the crimes were committed here, the sexual
battery of a child under twelve years of age was not punishable by death.
We are bound to follow the existing precedent of the Florida Supreme
Court, and as the courts reiterated in both Guzman and Gonzalez, we have
no 	authority 	to 	overrule 	United 	States 	Supreme 	Court 	precedent.”)
(citations omitted).
IV. 	CONCLUSION
For the foregoing reasons, we affirm the defendant’s convictions.
Affirmed.
KUNTZ , C.J., and MAY , J., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.