The State of Florida appeals the trial courts order granting Michael Millers (“Miller”) motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Approximately ten years ago, Miller was convicted of lewd or lascivious molestation on a person twelve years or older but less than sixteen years old in violation of section 800.04(5)(c)2., Florida Statutes (2011), and lewd or lascivious battery in violation of section 800.04(4)(a), Florida Statutes (2011). After an unsuccessful direct appeal,
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Miller filed a rule 3.850 motion, alleging ineffective assistance of counsel. The trial court granted Millers motion, and the State appealed. See State v. Miller, 288 So. 3d 1281 (Fla. 5th DCA 2020). We reversed and remanded for “reconsideration of Millers claims pursuant to the Strickland standard” because the trial court failed to make the required prejudice findings. See id. at 1284. On remand, the trial court held an evidentiary hearing, found that Miller established ineffective assistance of counsel, and entered the order on appeal, which granted Miller a new trial. We agree with the State that the trial court erred because Miller failed to carry his burden under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, we reverse and remand.
I. BACKGROUND
At trial, the victim, who was fifteen years old, testified that she was walking home from a friends house when she mistakenly got into Millers vehicle, thinking that it was her boyfriends vehicle. According to the victim, when she attempted to exit the vehicle, Miller grabbed her arm, preventing her from doing so, and offered to give the victim a ride home. On the way to the victims house, Miller stopped at two convenience stores to purchase a beer and sweet tea, and when Miller was about two minutes from the victims house, he parked his vehicle on the side of the road. According to the victim, Miller partially undressed her, placed his mouth on her breasts and genitals, and penetrated the victims vagina with his fingers. The victim ordered Miller to stop and, at one point, she urinated on herself. Meanwhile, the victim yelled out to a familiar truck that drove past Millers vehicle, but the truck did not stop. Shortly after, Miller resumed driving and dropped the victim off near her house.
In contrast, Miller testified that before the victim entered his vehicle, he rolled down his back window, because his front windows were not working, and turned on his dome light to ask the victim if she needed a ride. He claimed that during the drive, the victim began flapping her shirt to cool down because his air conditioning system was not working. Miller then offered the victim a rag that he used to wipe his sweat off and the victim dabbed the towel around her belly area to wipe her sweat. Finally, Miller admitted that he stopped at two convenience stores, but denied parking his car on the side of the road and sexually assaulting the victim.
II. ANALYSIS
Millers claims of ineffective assistance can be divided into three categories, trial counsels failure to: challenge the DNA evidence, collect cell phone GPS evidence, and present evidence of the condition of Millers car.
We apply a mixed standard of review to the trial courts ruling on a claim of ineffective assistance of counsel following an evidentiary hearing by giving deference to the trial courts factual findings, provided they are supported by competent, substantial evidence, while conducting an independent de novo review of its legal conclusions. See Keith v. State, 46 So. 3d 85, 87 (Fla. 5th DCA 2010) (citing Sochor v. State, 883 So. 2d 766, 771–72 (Fla. 2004)); see also State v. Ellis, 273 So. 3d 1126, 1128 (Fla. 3d DCA 2019) (applying same standard where the lower court grants postconviction relief).
To establish ineffective assistance of counsel, two requirements must be met:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986)). Trial counsels strategic decisions will not be deemed ineffective “if alternative courses have been considered and rejected and counsels decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). Moreover, mere speculation that the outcome would have been different but for trial counsels ineffective performance is not sufficient to show prejudice. Derrick v. State, 983 So. 2d 443, 462 (Fla. 2008); Maharaj v. State, 778 So. 2d 944, 951 (Fla. 2000).
A. DNA Evidence
Miller initially argues that trial counsel was ineffective in several respects with regard to the DNA evidence that was presented at trial. Specifically, he claims that trial counsel should have conducted independent DNA testing, she should have called a DNA expert regarding the possibility of DNA transfer, and she should have cross-examined the States expert witness differently. He additionally claims that trial counsel should have filed a motion to exclude evidence based on the improper handling of the evidence because the victims clothing was placed in one bag instead of separate bags. We disagree that Millers claims rise to the level of ineffective assistance of counsel.
At trial, there was no conclusive evidence establishing that Millers DNA was on the victims bra. Rather, the testimony showed that the DNA found on the victims bra matched one out of every 2300 males, including every male in Millers paternal lineage. Additionally, trial testimony established that it was possible for DNA to transfer from one article of clothing to another when the clothing was comingled, as occurred in this case. In fact, the forensic scientist testified, “[i]f you have a t-shirt in the same bag with jeans and theres a DNA stain on the t-shirt and you rub them together, yeah, its probably going to transfer.” Trial counsel emphasized the forensic scientists testimony during closing argument and also argued that the victims use of Millers sweat rag could have resulted in the potential presence of Millers DNA on the victims bra and would explain the absence of Millers DNA on the victims underwear.
Given the facts that were presented at trial, counsels representation with regard to the DNA evidence was not deficient. Although she did not request independent DNA testing or attack the evidence in the way that Miller claims she should have, trial counsel offered a reasonable explanation at trial for the presence of Millers DNA on the victim. She further argued in closing arguments that the evidence that was present was inconsistent with the victims testimony. Contrary to Millers claims, these arguments were reasonable and were not outside the realm of professional norms. See Doyle v. State, 526 So. 2d 909, 912 (Fla. 1988) (concluding that trial counsel was not deficient in failing to present testimony at trial from mental health experts where defense counsel offered information for jurys consideration during closing argument).
In addition, even if trial counsels performance was deficient, Miller has not established prejudice. First, as the State argues, Miller failed to present any evidence at the evidentiary hearing to establish that he was prejudiced by trial counsels failure to seek the exclusion of all DNA evidence based on improper handling and he also failed to show that trial counsel had the capability of testing the victims clothing to determine whether the DNA evidence came from saliva or skin cells, given the lack of staining on the victims clothing. Therefore, these arguments have been waived. See State v. Bright, 200 So. 3d 710, 737 n.10 (Fla. 2016) (holding a defendant waived claims with regard to a DNA expert and latent print expert when he failed to present any such experts during the evidentiary hearing); Ferrell v. State, 918 So. 2d 163, 174 (Fla. 2005) (explaining that when a party foregoes the presentation of evidence on a fact-based issue at an evidentiary hearing, he waives that particular claim for postconviction relief).
Second, as explained, there was no conclusive evidence presented at trial showing that Millers DNA was the DNA that was found on the victims bra. Moreover, there was evidence at trial showing that the DNA could have been transferred to the victim from the sweat rag or because the evidence was comingled. Thus, additional evidence challenging the States DNA evidence would have been cumulative and would not necessarily have altered the outcome of the trial. See Maharaj, 778 So. 2d at 957 (“Failure to present cumulative evidence is not ineffective assistance of counsel.”); see also Derrick, 983 So. 2d at 462 (holding that, “in order to sufficiently undermine this Courts confidence in the outcome ․ [a defendant] must rely on more than mere speculation”).
For these reasons, Miller did not demonstrate at the rule 3.850 hearing that there was a reasonable probability that the outcome of the trial would have been different had trial counsel moved to exclude the victims clothing, conducted additional testing on the clothing, or presented additional evidence to undermine the States DNA evidence. Accordingly, we disagree with the trial courts conclusion that Miller satisfied the prejudice prong regarding the DNA evidence at the rule 3.850 hearing.
B. GPS Data
Next, Miller claims that trial counsel was ineffective for failing to obtain his and the victims cellphone GPS records to contradict the victims testimony that he parked his vehicle on the side of the road near the victims house. Notably, the events in question occurred in 2010, a time when cellphones with GPS capabilities were not as ubiquitous as they are now. Millers argument presumes that his and the victims cellphones had GPS capabilities. However, Miller did not present any evidence at the rule 3.850 hearing demonstrating that to be the case, nor did he present any evidence their cellphones were capable of transmitting the precise location of Millers vehicle minute by minute on the night in question. Without evidence showing that such information existed prior to trial, we cannot find that trial counsel was deficient for failing to request this information. See Hall v. State, 212 So. 3d 1001, 1019 (Fla. 2017) (concluding that trial counsel was not deficient for failing to request a toxicology screening to corroborate the defendants statement that he was under the influence of drugs at the time of murder where trial counsel had no notice of defendants alleged drug use and, therefore, he could not have known that a toxicology screening was warranted).
Furthermore, without knowing what the GPS information could have shown, it is impossible to find that there is a reasonable probability that the outcome of the trial would have been different had that evidence been presented to the jury. See Calhoun v. State, 312 So. 3d 826, 846 (Fla. 2019) (rejecting ineffective assistance of counsel claim where the defendant did not present evidence at the postconviction hearing supporting his claim); Clark v. State, 35 So. 3d 880, 888 (Fla. 2010) (“Trial counsel cannot be ineffective for failing to present evidence that did not exist at the time of trial.”). Therefore, Miller failed to establish ineffective assistance regarding the lack of cell phone GPS evidence.
C. Evidence Concerning Millers Car
Finally, Miller contends that trial counsel was ineffective for failing to present evidence regarding the condition of his vehicle, which would have undermined the victims testimony. Specifically, he claims that trial counsel should have presented evidence challenging the victims claim that she urinated on herself before Miller supposedly removed her shorts and underwear and that he tossed a beer bottle out of the window while they were stopped on the side of the road. We disagree with the trial court that Miller established ineffective assistance of counsel in this regard.
Even if we were to assume that trial counsels performance related to the condition of Millers vehicle was deficient, Miller cannot establish prejudice. See Schwab v. State, 814 So. 2d 402, 408 (Fla. 2002) (explaining that appellate court need not address both components of the Strickland inquiry where the defendant is unable to show either deficiency or prejudice). Miller presented no evidence at the rule 3.850 hearing that the car seat could reliably be tested for the presence of urine after trial counsel appeared in the case, more than a year and a half after the incident. Therefore, Millers claim that he was prejudiced by trial counsels failure to test the car for the presence of urine is grounded in speculation, which is insufficient to establish prejudice. See Derrick, 983 So. 2d at 462; Maharaj, 778 So. 2d at 951.
Further, even if such testing were possible and revealed the absence of urine, it would only undermine one aspect of the victims version of events. The victims claim that Miller committed the sexual offense is still supported by other evidence. In particular: the victims brother testified that he saw a vehicle matching the description of Millers vehicle parked along the road near their house; the State presented evidence showing abrasions on the victims hymen and the DNA evidence on the victims bra could have been Millers DNA; and, Miller testified that when he spoke to the victims mother after the night in question, he lied to her about not giving anyone a ride home on the night of the incident. For these reasons, trial counsels failure to confirm the presence of urine does not create a reasonable probability that the outcome of the trial would have been different.
Finally, Miller did not establish that trial counsels failure to present evidence showing that the front windows of his vehicle were not functioning was prejudicial because such evidence would have been cumulative and would not have contradicted the victims trial testimony. Specifically, Miller testified that his front windows were not functioning and that he had to open his rear windows to speak to the victim when he initially offered to give her a ride. And, the victim testified that Miller threw a beer bottle “out of the window,” without specifying which window. Therefore, because the evidence that Miller claims should have been presented did not undermine the victims testimony and it would have been, at best, cumulative, Miller has failed to establish prejudice. See Maharaj, 778 So. 2d at 957. Consequently, Miller failed to demonstrate ineffective assistance of counsel regarding the evidence of the condition of his car.
Accordingly, we reverse and remand with instructions that the conviction and sentence be reinstated. See State v. Oliver, 442 So. 2d 1073, 1076 (Fla. 3d DCA 1983) (reversing lower courts order granting postconviction relief and remanding with instructions to reinstate the defendants conviction and sentence).
REVERSED and REMANDED with Instructions.
FOOTNOTES
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. See Miller v. State, 120 So. 3d 572 (Fla. 5th DCA 2013).
NARDELLA, J.
LAMBERT, C.J., and WALLIS, J., concur.