124 So. 3d 388
Fla. Dist. Ct. App.2013Background
- Ware was convicted of lewd or lascivious exhibition in the presence of a disabled person and exposure of sexual organs after a 2011 incident at a CVS bus stop in Jacksonville.
- The victim, L.R., has a disability that makes walking difficult and was with her daughter during the events.
- Ware sought to introduce evidence that L.R. was previously the victim of a sexual battery to impeach her credibility.
- The trial court granted the State’s motion in limine, excluding cross-examination about the prior sexual battery as irrelevant.
- The jury found Ware guilty on both counts and he was sentenced to four years in prison, one year of probation, and mandatory sex offender registration.
- On appeal, Ware challenges the exclusion of the prior sexual battery evidence as it pertains to bias, perception, and credibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is prior sexual battery relevant to bias? | Ware contends prior battery could bias L.R. | State argues no relevance under Pantoja. | Exclusion affirmed; no relevance. |
| Does L.R.'s reaction to exposure affect elements or defenses? | Reaction could show lack of offensiveness or lewdness. | Reaction is not an element and not dispositive. | Not a valid basis to deny lewd/exhibition charges. |
| May L.R.'s prior sexual battery be used to attack credibility under 90.608? | Prior victimization could affect perceptive ability and credibility. | No deficiency in perceptive capacity shown; no basis. | Cross-examination properly excluded; no credibility basis. |
| Does probative value of prior sexual history outweigh potential prejudice under 90.408? | Prior sexual history could be probative to impeach. | Evidence would be inflammatory and prejudicial. | Prohibition upheld; evidence excluded for prejudice. |
Key Cases Cited
- Pantoja v. State, 59 So.3d 1092 (Fla.2011) (abuse-of-discretion review for admissibility)
- Fehringer v. State, 976 So.2d 1218 (Fla.4th DCA 2008) (prior accusation context; admissibility of similar acts)
- Minus v. State, 901 So.2d 344 (Fla.4th DCA 2005) (prior accusations may cast doubt on current allegations)
- Ross v. State, 876 So.2d 684 (Fla.4th DCA 2004) (offensiveness of public lewd conduct; content not dispositive)
- Schmitt v. State, 590 So.2d 404 (Fla.1991) (deliberate nudity in public vs. involuntary exposure distinctions)
- State v. Kees, 919 So.2d 504 (Fla.5th DCA 2005) (offensiveness requirement in public place)
- Duvallon v. State, 404 So.2d 196 (Fla.1st DCA 1981) (changing societal norms regarding lewdness)