Gould v. StateGould v. State
Robert A. Butterworth, Atty. Gen., Tallahassee, and Stephen A. Baker, Asst. Atty. Gen., Tampa, for appellee.
Gary Gould appeals from his convictions and sentences for kidnapping,1 sexual battery while threatening to use a deadly weapon,2 two counts of sexual battery while threatening to use force or violence likely to cause serious personal injury to the victim,3 two counts of sexual battery on a victim physically helpless to resist,4 and three counts of battery.5 Appellant contends: (1) the victim was not physically helpless, (2) it was error to allow Williams6 rule evidence, and (3) the court erred in failing to grant a judgment of acquittal on the kidnapping charge. We affirm in part, reverse in part and remand with directions.
Tracy was the victim of appellant‘s brutal attack, and she testified to the following at trial. Tracy and her son resided with appellant, and on the evening of October 26, 1986, appellant went out to get beer and returned with two six-packs. A short time later, appellant came into the bedroom yelling and proceeded to tape Tracy‘s hands and feet with duct tape. He slapped her five or six times and stated that he hated her and was going to cut her hair off, which he proceeded to do. He then made Tracy hop into the bathroom where he began shaving her head. Next, appellant removed the duct tape and tied Tracy with bedsheets to fixtures in the bathroom.
Appellant tore off her underwear and hit her again. With respect to the details of the first three sexual batteries, suffice it to say that appellant‘s vile actions and use of foreign objects for vaginal and anal penetration manifest appellant‘s severe sexual perversity and depravity. Tracy resisted these activities, told appellant to stop and tried to talk to him. At one point Tracy told appellant that her hands hurt, and he loosened the bindings. She screamed several times and asked appellant to “please stop.” Tracy stated that she stopped screaming because she did not want to awaken her child. In addition to the sexual batteries, appellant blindfolded Tracy and beat her with a spatula until it broke, and he struck Tracy in the face with what she believed was a hammer. She told him that she did not want to die and asked him to stop.
After appellant untied Tracy, he held a knife to her throat and told her to perform oral sex on him. He then took her into the
After appellant fell asleep, Tracy got up, took her child to a neighbor‘s house and went to the police station. Officer Rickus interviewed Tracy. He then went to appellant‘s apartment and awakened appellant. He believed that appellant had been drinking, but that he was not intoxicated. After hearing his Miranda rights, appellant stated that he had gotten into a fight with Tracy, that he had pulled her into the bathroom and pushed her against the shower. Appellant stated that he understood that he had committed a serious crime. Tracy testified that the attack on her was unprovoked and that appellant had been drinking, but he was not intoxicated.
The following testimony was offered as Williams rule evidence over appellant‘s objections. Appellant‘s former girlfriend, Karen, testified that some eleven months previously, in November of 1985, she and her child were living with appellant. On November 21st she came home and could tell that he had been drinking, but that he was not intoxicated. She and appellant had been fighting during the day, and she had hung up on him earlier. Appellant wanted to talk, and she refused. Karen went into the bedroom, and appellant dragged her into the living room, pushed her into a chair and began yelling at her. He then returned her to the bedroom where he handcuffed her and tied her legs with strips of cloth. Appellant got a pocket knife, a sword and a hatchet, and at one point threatened to kill her if she made noise. Appellant cut off a piece of her hair with a knife and threatened to cut her legs off. Appellant then untied Karen, and they sat and talked. Appellant then ate and went to bed. Karen got her child and went to the police. Karen stated that she had allowed appellant to restrain her previously as part of their sexual relationship. On the evening of November 21st, she was not sexually assaulted.
Officer Rickus testified that he recognized appellant from the incident with Karen. Officer Rickus had interviewed Karen, and he testified as to her appearance. He went to appellant‘s apartment and arrested him. Officer Farrell interviewed appellant after his arrest on November 21, 1985. Appellant stated that he and Karen had argued and that he had tied her. He also slapped her and may have threatened her. Photographs, restraints and weapons relating to the November 21st incident were admitted into evidence over appellant‘s objection.
The trial court denied appellant‘s motions for judgment of acquittal on each count. The jury found appellant guilty as charged on all counts, and the trial court sentenced appellant within the guidelines to twenty-seven years’ incarceration.
Appellant‘s first contention, which involves his convictions under counts two and three for sexual battery on a victim physically helpless, is meritorious. It is even more clear than it was in Davis v. State, 538 So. 2d 515 (Fla. 2d DCA), rev. denied, 544 So. 2d 201 (Fla. 1989), that the victim in this case did not meet the statutory definition of “physically helpless.” See
The defense requested a jury instruction on the category two lesser included offense of sexual battery under
When the appellate court determines that the evidence does not prove the offense
for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.
(emphasis supplied).
Appellant agrees that the evidence supported a simple battery conviction. The same evidence is sufficient to show physical force and violence not likely to cause serious personal injury under
Thus, it would appear that subsection (5) sexual battery is a “lesser statutory degree of the offense” as set forth in
Determination of degree of offense. If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.
In its analysis the court stated that “[s]ection 919.14 applies only to those crimes which are divided into degrees, e.g., unlawful homicide (
We therefore turn our attention to whether subsection (5) sexual battery is a “lesser offense necessarily included in the offense charged.” Appellant argues that it is not because it is a category two lesser offense in the Florida Standard Jury Instructions in Criminal Cases, while simple battery is the only category one lesser offense. We disagree. In Gallo v. State, 491 So. 2d 541 (Fla. 1986), the defendant was charged with a variety of offenses including sexual battery. The opinion does not state the precise sexual battery charge, but it is clear that the charge was not under subsection (5). The defendant requested that the trial court instruct the jury on no lesser included offenses. The state objected and requested instructions as to all applicable lessers. The court, complying with the state‘s request, instructed on a series of lesser included offenses including subsection (5) sexual battery. As in this case, subsection (5) sexual battery was a category two lesser of the crime charged. In affirming the defendant‘s conviction of subsection (5) sexual battery, our supreme court said: “This Court has long held that upon a proper request, a trial judge must instruct the jury on necessarily included lesser offenses.” (emphasis provided). Gallo, 491 So. 2d at 543. A category two lesser offense, therefore, can constitute a “necessarily included lesser offense,” and we so hold that subsection (5) sexual battery is such an offense in this case.
Appellant argues that
Next, appellant contends that it was reversible error for the trial court to allow the Williams rule evidence. The evidence regarding the previous incident involving Karen was relevant to the issue of intent for the kidnapping count. Kidnapping requires proof of specific intent, and appellant sought to use voluntary intoxication as a defense. The fact that appellant displayed extremely similar behavior in binding Karen, forcing her into another room to batter her and threatening her life with a sword is relevant to show that when appellant eleven months later kidnapped Tracy by forcing her into the bathroom to threaten her life, beat her and also commit sexual batteries, he had the specific intent to do so. An analogous situation arose in Rossi v. State, 416 So. 2d 1166 (Fla. 4th DCA 1982), where the defendant‘s defense to kidnapping, sexual battery and attempted second degree murder was insanity. The court held that evidence of a similar prior crime was admissible to prove intent and negate the insanity defense.
As appellant contends, identity is not an issue in this case. Similar fact evidence relevant to prove a material fact other than identity need not meet the rigid similarity requirement applied when collateral crimes are used to prove identity. See Calloway v. State, 520 So. 2d 665, 668 (Fla. 1st DCA 1988), rev. denied, 529 So. 2d 693 (Fla. 1988). Although a sexual battery did not occur in the incident, the two attacks did share unique points of similarity. Appellant argues that binding a victim‘s hands is commonplace. In both cases here, however, appellant forced his live-in girlfriend into another room, bound her, threatened her life, cut off her hair and hit her, all while a child was asleep in the home. Appellant then calmly went to sleep after each attack.
The state argues, based on Jones v. State, 398 So. 2d 987 (Fla. 4th DCA), rev. denied, 408 So. 2d 1094 (Fla. 1981), that the
Yet, some argue that permitting the state to submit similar fact testimony to show a “pattern of criminality” amounts to nothing more than allowing proof of bad character and propensity. They argue that one‘s “pattern of criminality” is not a legitimate issue upon which the state is entitled to submit relevant evidence to prove.
Hodge v. State, 419 So. 2d 346, 347 (Fla. 2d DCA 1982), rev. denied, 426 So. 2d 26 (Fla. 1983). The Hodge court affirmed the admission of the similar fact evidence, but supported its decision with the additional fact that the evidence was relevant to lack of consent. Thus, the better view is to affirm the Williams evidence as relevant to the issue of intent for the kidnapping, rather than, as the state asserts, to prove a pattern of criminality.
Finally, appellant asserts that the trial court should have granted a judgment of acquittal on the kidnapping charge. Appellant was convicted of kidnapping with the intent to commit or facilitate the commission of a felony.
(a) Must not be slight, inconsequential and merely incidental to the other crimes;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially less in risk of detection.
Ferguson v. State, 533 So. 2d 763, 764 (Fla. 1988) (citations omitted). Appellant‘s movement and confinement of Tracy to the bathroom from the bedroom was not inconsequential and was not inherent in the sexual batteries. The evidence also indicated that binding her limbs to bathroom fixtures made it substantially easier for appellant to commit sexual batteries involving foreign objects without physical opposition from the victim. The sexual battery that he committed in the bedroom was forcing Tracy to perform oral sex on him. Although he could have performed the other sexual batteries in the bedroom, the jury could reasonably conclude that the movement to the bathroom made those crimes much easier to commit, and thus the kidnapping conviction must stand.
Based on the foregoing, the convictions under counts two and three are reversed with directions to enter convictions for sexual battery under
Affirmed in part, reversed in part, and remanded.
CAMPBELL, C.J., and RYDER, J., concur.