Ivan Waylen Easterly, Appellant, seeks review of his conviction of engaging in sexual activity with a minor between the ages of twelve and eighteen while in a position of familial or custodial authority. He raises three issues: (1) whether the trial court abused its discretion in declining to dismiss the State’s second amended information due to its refusal to narrow the timeframe of the charged offenses; (2) whether the trial court abused its discretion in admitting similar fact evidence; and (3) whether fundamental error occurred when the prosecutor argued, in the State’s rebuttal closing argument, that the evidence had “torn away” the presumption of innocence. Finding no error, we affirm and write to explain our decision.
FACTS
The State filed an amended information charging Appellant with two crimes: engaging in sexual activity with a child twelve years of age or older but less than eighteen, while standing in a position of familial or custodial authority, in violation of section 794.011(8)(b), Florida Statutes (2004) (count one); and unlawful activity by a person twenty-four years of age or older with a person sixteen or seventeen years of age, in violation of section 794.05, Florida Statutes (2004) (count two). The time period alleged for the commission of both crimes was “on or about or between April 1, 2004, and June 30, 2004.” The alleged victim was K.D., who was Appellant’s stepdaughter and the mother of his
Upon Appellant’s motion, the trial court ordered the State to file a statement of particulars with as much detail as possible about the date, time, and location of the offenses. After the State failed to timely comply with the order, Appellant filed a motion to compel the State’s compliance. In response, the State filed a second amended information, which contained essentially the same language as the amended information, except that it added an allegation that the offense listed in each count occurred “one or more times.” Appellant, in turn, filed a motion to dismiss, arguing that the alleged offenses were not “continuing offenses” and that the changes in the second amended information had compounded the problem by making issues of time, date, and place more uncertain.
At a hearing on the motion, defense counsel argued that the State was required to narrow the timeframe because it knew of at least two separate dates when K.D. alleged Appellant sexually abused her. The prosecutor explained that Appellant had sexually abused K.D. on a regular basis, but that K.D. could recall only one or two specific incidents. The prosecutor further explained that K.D. had a clear memory of one incident in particular’ and that the State intended to elicit the details of that event at trial. Finally, the prosecutor argued that the State’s difficulty in narrowing the timeframe resulted from the fact that, although it had conclusive evidence that K.D. had conceived a child by Appellant, there was no evidence that either of the specific incidents K.D. recalled was the one that led to the conception.
Defense counsel argued that the issue was not when K.D. became pregnant, but when she was sexually abused. Defense counsel pointed out that, in deposition, K.D. had specifically described an incident that occurred on May 1, 2004, and one that occurred on May 2, 2004. The court asked defense counsel if he was willing to stipulate to one of those incidents as the one that resulted in the pregnancy, and defense counsel responded that he was not required to do so. The trial court denied the motion to dismiss, opining that the State had narrowed the timeframe as much as possible.
The State had previously filed a Williams 1 rule notice, indicating that it intended to introduce evidence of five offenses that Appellant perpetrated against K.D. outside the timeframe alleged in the information. Two of these offenses occurred between February 1, 2001, and March 24, 2001; one occurred between March 25, 2001, and December 31, 2001; and two occurred between January 20, 2005, and March 19, 2005. The offenses varied in detail, from the fondling of KD.’s breasts and vaginal area, to penile-vaginal penetration or union, to the penetration of or union with KD.’s vagina by Appellant’s tongue. One of the offenses included the use of force. The State alleged that three of these offenses occurred in the family home in the vicinity of Chiefland, Florida, and two occurred in the family home in the vicinity of Trenton, Florida.
Appellant filed a motion in limine, arguing that the proposed Williams rule evidence was improper because his identity was not at issue and the acts were not similar enough to one another. He also argued that, due to the number of incidents and the length of time they spanned, the proposed Williams rule evidence would become a feature of the trial.
After hearing oral arguments from both parties, the trial judge observed that,
Prior to trial, Appellant requested a special jury instruction, which included his knowledge that he was committing the charged act as an element of the crime. The trial court denied the request, determining instead to use the standard instruction. The case proceeded to trial.
In the defense’s opening statement, counsel conceded that K.D. was sixteen years old in April, May, and June of 2004 and that a DNA test established that her child’s DNA matched Appellant’s DNA. Defense counsel stated that Appellant had “no clue” how K.D. became pregnant with his child and that he could only speculate. Defense counsel alleged that “there was one event,” that Appellant could not describe it, and that Appellant “was not the one [who] initiated it.”
K.D. gave the following testimony. One night between April 1, 2004, and June 30, 2004, she was alone with Appellant in the family home in Trenton. The home was not air-conditioned, so K.D. went to lie down in the coolest room in the house, the one Appellant and her mother shared. K.D. later awoke to find Appellant under the covers with her, fondling her breasts and, later, her vagina. She tried to push Appellant off of her and to knee him, but he did not stop. Later in the encounter, Appellant “started performing penis-vaginal” intercourse. K.D. again tried to push Appellant off and to knee him, and Appellant held her by the shoulders, pushing her “more down onto the bed.” During this encounter, Appellant’s eyes were closed but would “open once in a while, basically quiver[ing] open and then close, like he was trying to pretend that he was asleep.” Appellant had sexual intercourse with K.D. more than once between April 1, 2004, and June 30, 2004, but she could specifically recall only one incident that occurred during that timeframe.
K.D. testified that she learned she was pregnant in June of 2004 and that her child was born on January 19, 2005. The State later presented evidence that, based on a DNA test, there was a greater than 99.99 percent probability that Appellant was the biological father of this child. Based on this evidence, an expert in forensic DNA and population genetics opined that Appellant was the father.
After the trial court gave a limiting instruction regarding the
Williams
rule evidence, K.D. testified as follows regarding three events that occurred in the family home in Chiefland. K.D.’s first sexual encounter with Appellant occurred when she was “about 12 going on 13.” At that time, K.D. and her sister were sharing a bedroom, and Appellant came in to say “good night.” K.D. was lying on a mattress on the floor, and her younger sister was lying in a twin bed. After saying “good night,” Appellant lay on the floor next to K.D. and acted as if he had fallen asleep. As K.D. was beginning to fall asleep, she felt Appellant’s arm around her. Appellant had placed his hand under her shirt and was beginning to fondle her. K.D.’s sister was “sound asleep” at the time. There was no talking between K.D. and Appellant. Appellant later began to fondle her vaginal area. A week or two later, Appellant repeated the “same general routine,” but this time, he engaged in penile-vaginal intercourse with her. Another incident oc
K.D. testified that Appellant continued to sexually abuse her after she gave birth. Specifically, she recalled an incident that occurred when her family was moving residences. Because the family had already packed most of its belongings, there was only one bed in the house, the one that Appellant and KD.’s mother had shared. K.D. went to sleep on that bed and was awakened by Appellant, who was having vaginal intercourse with her.
KD.’s sister testified that she had never seen Appellant “wandering around at night” and had never awakened to find him near her bed.
In his own defense, Appellant testified that K.D. would sometimes sleep on a camping mat, but that he had never gone into her bedroom and lain down next to her on the mat. He denied ever touching K.D. “in her sexual, private areas” or fondling her breasts or vaginal area while the family was living in Chiefland. He also denied having had “any sort of sexual intercourse” with K.D. in that home. Appellant testified that, to his knowledge, he had also never sexually molested K.D. in the home in Trenton or at any time after the birth of her child.
Appellant further testified that he would often awake to find K.D. in the bed with him instead of his wife. He stated that he would argue with his wife about this occurrence and that it would then “stop for a short period of time.” He claimed that his wife had informed him that she would sometimes have sex with him while he was asleep. He recalled that such occurrences “gained in frequency as [they] were married a longer time” and continued throughout the marriage. Appellant testified that when he heard of the accusations against him, he requested a DNA test because “[w]hat was being said wasn’t rationale [sic],” as he “had no knowledge of anything like that ever happening.” Appellant’s parents corroborated his claim that he had a tendency to engage in sexual intercourse while he was sleeping. They testified that Appellant’s wife had bragged to them about such occurrences.
At the charge conference, defense counsel again raised the issue of inserting “knowingly” into the jury instructions. The State acquiesced in the request, and the trial court approved it. The case proceeded to closing arguments.
The State began its closing argument by echoing comments from its opening statement that K.D. had lost her childhood “at the hands of this man.” The prosecutor then discussed the May 2004 incident in detail. The prosecutor argued that the May 2004 incident “was not the first time this had ever happened, nor was it the last time.” Arguing that Appellant began taking a “markedly different approach” toward K.D. once she reached puberty, the prosecutor recalled some of K.D.’s testimony regarding inappropriate kissing, hugging, and compliments from Appellant. After stating that Appellant’s inappropriate behavior began before K.D. was sixteen years old, the prosecutor advised the jury that it could consider the previous events only for “very specific reasons,” according to the court’s instructions. The prosecutor discussed testimony from Appellant’s wife that he had not had any sleeping disorders and testimony from K.D.’s sister that Appellant had never approached her during the night. The prosecutor then pointed out that Appellant had “unerringly” found K.D. in the night, indicating that he was conscious of his actions. The State did not discuss the details of the pre-2004 incidents again except to state that Appellant began to abuse K.D. when
The testimonial evidence in this case, the physical evidence in this case, has not only removed the presumption of innocence from this man, it has torn it away and shown him for what he did to [K.D.] on [sic] May of 2004 when he raped her.
There was no objection to this comment. Later, the trial court instructed the jury that it must presume Appellant’s innocence. The court further explained, “The presumption stays with the defendant as to each material allegation in the information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.”
Ultimately, the jury found Appellant guilty as charged of both counts alleged in the information. The trial court adjudicated Appellant guilty only as to the charge of engaging in sexual activity with a minor between the ages of twelve and eighteen while in a position of familial or custodial authority, and Appellant was sentenced to thirty years in prison.
ANALYSIS
I. Timeframe Alleged in Information
First, we consider Appellant’s argument that the trial court erred in declining to dismiss the second amended information after the State refused to provide a statement of particulars as ordered. Generally, a trial court’s ruling on a motion to dismiss based on the State’s failure to comply with an order requiring a statement of particulars is reviewed under the abuse of discretion standard.
State v. Del Gaudio,
Florida Rule of Criminal Procedure 3.140(n) entitles a criminal defendant to a statement of particulars “when the indictment or information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense.” Rule 3.140(n) provides that “[t]he statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney.”
The Florida Supreme Court’s opinion in
Dell’Orfano v. State,
The Dell’Orfano court held that “a trial court on a proper motion is required to dismiss an information or indictment involving lengthy periods of time if the State in a hearing cannot show clearly and convincingly that it has exhausted all reasonable means of narrowing the time frames further.” Id. The court noted that a defendant would be entitled to a hearing if he or she made allegations that, if true, “would support the existence of prejudice in preparing a defense attributable to the length of time stated in the charging instrument.” Id. at 35 n. 2. Under the Dell’Orfano holding, once the defendant shows entitlement to a hearing, and the State shows that it cannot narrow the timeframe, the burden shifts to the defendant to show that the defense more likely than not will be prejudiced by the length of the timeframe. Id. at 35. The Dell’Or-fano court declined to hold that the twenty-seven month period at issue was too lengthy as a matter of law. See generally id. Instead, it remanded the case to the trial court for a hearing. Id. at 36.
In its arguments below, the State made it clear that the crime with which it was attempting to charge Appellant was the one that led to KD.’s pregnancy. Although the State knew the specific date of one incident of sexual abuse, it could not be certain that this incident was the one that caused the pregnancy. At the same time, the State could not be certain that this incident did not cause the pregnancy. For this reason, it would have been improper for the State to charge Appellant with two separate crimes based on both the pregnancy and the May 1, 2004, incident. 2 To be sure the timeframe alleged in the information captured the act that led to the pregnancy, the State needed to expand it beyond May 1, 2004. 3
We are aware that the State could have chosen to proceed specifically on the May 1, 2004, incident without attempting to prove that Appellant fathered the victim’s child. However, the State’s decision to charge Appellant for the offense that led to the pregnancy, even though it could not pinpoint a date of the offense, was a matter of prosecutorial discretion. In
Dell’Or-fano,
the supreme court noted, “[Cjommon sense dictates that admitted wrongdoing should not be shielded from prosecution merely because the State is unable to provide greater specificity in an information or indictment.”
Dell’Orfano v. State,
II. Similar fact evidence
Next, we consider Appellant’s argument that the trial court erred in admitting evidence of the other acts of sexual abuse he perpetrated against the victim. A trial court’s decision to admit similar fact evidence, or
Williams
rule evidence, is reviewed for abuse of discretion.
See Moore v. State,
Under the
Williams
rule, evidence of a criminal defendant’s other crimes or bad acts is generally admissible if it is relevant to a material fact in issue, unless it is relevant only to demonstrate the defendant’s bad character or propensity to engage in criminal conduct.
Hodges,
Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
Courts applying the
Williams
rule have observed that “the relevance of collateral crime evidence is often a function of similarity.”
McLean v. State,
The Legislature has adopted a relaxed standard of admissibility for similar fact evidence in child molestation cases.
See
§ 90.404(2)(b), Florida Statutes (2007);
McLean,
Even under the relaxed standard of admissibility codified at section 90.404(2)(b), however, evidence of other acts of child molestation is subject to relevancy requirements and the section 90.403 balancing test.
McLean,
Here, the collateral offense evidence the trial court admitted was highly relevant due to Appellant’s defense that he did not know he had molested K.D. All of the acts were similar because they occurred against the same victim in a familial setting while the victim was asleep or attempting to go to sleep. The acts show an absence of mistake and a plan, particularly because the State adduced evidence that Appellant never molested K.D.’s sister, even though he claimed to have been unaware of his actions. Appellant argues that the number of similarities is insufficient. However, the number of similarities is not as important as the nature of the similarities in comparison to the purpose in admitting the evidence because, even under the general Williams rule standard, similarity is only a way of showing relevance. Appellant argues that the evidence was irrelevant because if he was unconscious of his actions during one incident, he also may have been unconscious of his actions during the others. The State correctly argues, however, that the evidence showed that Appellant targeted K.D., as opposed to any other person in the house. The State’s arguments at trial show that it used the evidence for this purpose.
Appellant contends that the collateral offense evidence was unduly prejudicial because it tended to show that he was a child predator. However, as explained above, the evidence was made necessary by the defense strategy and the jury instructions. Each separate offense made it less likely that Appellant was molesting K.D. unconsciously because the evidence showed that, each time, Appellant targeted K.D. rather than her sister, who testified that she never had an experience similar to the ones K.D. described. Under these facts, we cannot agree with Appellant that the trial court abused its discretion in determining that the potential for this evidence to cause unfair prejudice substantially outweighed its probative value.
In contesting the admission of the similar fact evidence, Appellant also argues such evidence improperly became a feature
Below, Appellant argued that the evidence threatened to become a feature of the trial due to the number of incidents and the amount of time it would take for the State to elicit testimony about them. He did not raise any concerns regarding the State’s argument that K.D.’s childhood was taken. All of the discussion of the tendency of the evidence to become a feature of the trial occurred during the pretrial stage of the case. The theme of the State’s case emerged only at trial, where there was no objection. The unfair prejudice caused by the State’s theme could have been averted if Appellant had raised a proper objection when the State began its arguments regarding the loss of KD.’s childhood. Accordingly, we find no reversible error in the trial court’s allowing the State to use such a theme.
To the extent Appellant argues that the evidence became a feature of the trial independently of the State’s theme, there is no error. A review of the State’s arguments reveals that it did not unduly focus on the collateral offenses, other than, perhaps, by forwarding this theme. The prosecutor went into more detail about the May 1, 2004, incident than any other. He also cautioned the jury that evidence of the other acts were to be considered for limited purposes, and he made clear that the relevance of that evidence was to show absence of mistake.
III. Comment on the Presumption of Innocence
Finally, Appellant argues that fundamental error occurred when the prosecutor made the following argument to the jury:
The testimonial evidence in this case, the physical evidence in this case, has not only removed the presumption of innocence from this man, it has torn it away and shown him for what he did to [K.D.] on May of 2004 when he raped her.
Fundamental error is that which “reach[e]s 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.”
Odom v. State,
Appellant contends that the challenged comment is indistinguishable from one deemed erroneous in
Nurse v. State,
At the beginning of this trial in jury selection and when the judge read to you the law he explained to you that the defendant carries the presumption of innocence and that the State has the burden of proving this case beyond a reasonable doubt. [Mr. Nurse] no longer has that presumption.
Id.
at 292. Notably, the
Nurse
court did not decide the case on that basis or opine
The comment in the instant case is distinguishable from the comment in Nurse because, here, the comment was tied directly to the prosecutor’s perspective on the strength of the evidence, while in Nurse, the comment suggested that the presumption of innocence no longer applied at all, simply because the presentation of the evidence had concluded. Because the prosecutor in the instant case tied the comment to his belief that the evidence was strong, the comment comes across as an opinion about the evidence, rather than a statement of the law, unlike in Nurse. Moreover, any confusion the jurors may have had regarding the presumption of innocence was likely cleared up by the subsequent, proper instruction on the subject. Thus, Appellant has not shown error. Furthermore, even if we found the comment to be erroneous, we would not find it fundamentally so because any potential misinterpretation of the prosecutor’s comment could have been readily cured by a contemporaneous objection, followed by a curative instruction.
CONCLUSION
For the foregoing reasons, Appellant’s conviction for engaging in sexual activity with a person between the ages of twelve and eighteen while in a position of familial or custodial authority is AFFIRMED in all respects.
Notes
.
Williams v. State,
. Although the State did charge Appellant with two separate crimes occurring during the relevant timeframe, and Appellant was found guilty as charged, the trial court did not adjudicate Appellant guilty of count two. It is unclear what facts the State was relying on to support its allegations in count two.
. Arguably, the State could have isolated the date of conception to within a smaller period of time. However, Appellant has not contested the State’s contention that it could not do so. Instead, he has maintained simply that the date of conception is irrelevant, as he was not charged with impregnating the victim. This argument misses the point that the State’s intention was to charge him with committing the offense that led to the pregnancy.