Thomas v. StateThomas v. State
ZEHMER, Judge.
The state‘s motion for rehearing filed in this appeal raises for the first time the
After careful and lengthy consideration, we deny the state‘s motion for rehearing on this and all other grounds. The original opinion is withdrawn and the following revised opinion is substituted therefor.
REVISED OPINION
James Lee Thomas appeals his conviction for sexual battery of a child under the age of twelve in violation of
As to the third point challenging the legal sufficiency of the evidence, we affirm without discussion. The child victim‘s testimony is sufficient to send the case to the jury for decision.
We reverse on the first point, however, holding that the trial court‘s admission of the similar fact evidence of another crime is error requiring remand for a new trial because the similar fact evidence offered by the state and the facts underlying the instant case are not “strikingly similar” and fail to “share some unique characteristics or combination of characteristics which sets them apart from other offenses,” Heuring v. State, 513 So.2d 122, 124 (Fla. 1987), and such evidence is not relevant to prove any material fact in issue.
Thomas was charged by information with committing sexual battery on M.M., a child under 12 years of age, by penetrating her vagina with his penis in March 1988. Prior to trial the state filed a notice of intent to rely on similar fact evidence that stated in part:
On or about June 9, 1976, the defendant committed statutory rape, in Georgia, on a thirteen year old female. On December 7, 1976, he pled guilty to this offense in Bainbridge, Decatur County, Georgia (Case #F-575) before Superior Court Judge Culpepper, and was ordered to serve two years in prison and eight years on probation.
The notice then described the incident during which the female victim was driven to a plum orchard where the defendant had nonconsensual sexual intercourse with her.
Appellant argues that evidence of the Georgia crime should not have been admitted.1 He points out that the incident
The state counters that remoteness in time alone does not preclude admission of similar fact evidence. It argues for admissibility on the grounds that the evidence of the earlier incident is “relevant to show that Appellant availed himself of the opportunity to sexually molest young girls in his custody when the situation presented itself,” that appellant occupied a position of trust in a familial context in both cases so the “familial setting” rule should apply, and that “the similar fact evidence in this case establishes a pattern of criminality that makes the prior act relevant to the commission of the act in question under” the Williams decision.
In the 1976 incident in Georgia, the victim was not related to appellant by blood, although she testified that “he was supposed to be my uncle” because he was married to her mother‘s sister. Appellant did not occupy the same household with her. The thirteen-year-old victim testified that appellant had come to her house and taken her and three other children to a plum orchard while her mother was away in Atlanta, that the other children were dropped off at the orchard, and then she was taken by appellant down a road where the two of them got out of the car and appellant forced her to have sexual intercourse on the ground in front of the car.
In the incident now under review, the alleged child victim lived with her mother and two sisters, one of whom had been fathered by appellant. Appellant did not live in the household, and there was no blood relationship between appellant and the child victim. The incident took place on an occasion when appellant was visiting the house, and he and the child rode in his car to the store to purchase something for her mother. The child, nine years old at the time of the incident, testified that appellant took her down a dark road and that the sexual activity occurred on the front seat of the car, and then they continued on to the store and then home. Appellant‘s testimony denied turning down the road and having any sexual activity with the child. There is no dispute about the fact that appellant and the child went to the store and returned on this occasion. The main issue in dispute is whether appellant stopped on the way to the store and committed the battery as claimed by the child.
The issue under discussion is governed by the pertinent provisions in the Florida Evidence Code.
In view of the obvious conflicting nature of the interplay between
Similar fact evidence that the defendant committed a collateral offense is inherently prejudicial. Introduction of such evidence creates the risk that a conviction will be based on the defendant‘s bad character or propensity to commit crimes, rather than on proof that he committed the charged offense. [Citations omitted.] Such evidence is, therefore, inadmissible if solely relevant to bad character or propensity to commit the crime. [Citations omitted.] To minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristics which sets them apart from other offenses.
513 So.2d at 124 (emphasis added). Continuing, the court quoted from People v. Haston, 69 Cal.2d 233, 444 P.2d 91, 70 Cal. Rptr. 419 (1968), to the effect that even where the offense charged and the collateral offense share certain marks of similarity, these marks may also be shared equally by other acts or offenses that may be committed by persons other than the defendant, and thus the marks of similarity between the charged and the collateral offense sought to be admitted must operate logically to set these two offenses well apart from all other crimes of the same general variety that may have been committed by someone other than the defendant. The supreme court then stated that, “in addition to the above requirements, the evidence must be relevant to a material fact in issue such as identity, motive, opportunity, plan, knowledge, or absence of mistake or fact,” citing
A critical aspect of the test of admissibility under
For example, in Squires v. State, 450 So.2d 208 (Fla. 1984), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984), the supreme court approved the admissibility of evidence of other criminal acts as relevant to prove Squires‘s violent trait of character, but the court was careful to point out that such evidence was admissible
Thus, it is readily apparent that the test of admissibility under
We have carefully reviewed the record to determine in what respects the evidence of the Georgia incident was relevant to prove any material fact in issue, and how the prior criminal episode tended to prove such disputed issue of fact. Obviously, the Georgia episode was not admitted to prove each of the issues described in
There are fatal flaws in the state‘s contention. Neither opportunity nor scheme or plan is a disputed factual issue relevant to specific elements of the charge against appellant. None of the elements of the charged sexual battery requires the state to prove a scheme or plan; nor do the elements of the offense require proof of opportunity. Although the state had to prove that appellant was present at the time and place when the charged offense allegedly occurred, appellant admitted he was present at the time and place, and his defense at trial did not create any issue as to “opportunity” to commit the offense.
Even if it may be fair to say that the Georgia episode demonstrates that appellant had previously taken advantage of a similar opportunity to commit a sexual offense on a young girl, the only reasonably permissible inference to be drawn from that fact is the defendant‘s propensity to commit an offense, an improper purpose under
Nor do we discern how the 1976 Georgia episode demonstrates a plan or scheme of unique criminal conduct sufficient to support an inference that appellant committed the sexual battery in 1988. There simply is
There is likewise no basis for treating either episode as one involving the requisite familial relationship such as that involved in the supreme court‘s decision in Heuring. The only significant fact common to both incidents is that appellant purported to have sex with an underage child. That single similarity alone without some other unique characteristic is simply insufficient, however. We have not been referred to any authority for the proposition that sexual battery on underage children is so unique in itself that it is uniformly admissible under
Thus, we hold on this record that the evidence of the Georgia episode is not demonstrably relevant to any material fact in issue and fails to satisfy the “strict standard of relevance” set forth in Heuring and
The admission of the evidence of the Georgia offense violated
REVERSED AND REMANDED.
SMITH, J., concurs.
MINER, J., dissents with opinion.
MINER, Judge, dissenting with opinion.
In a revised opinion issued on rehearing, the majority has concluded that the trial court reversibly abused its discretion in admitting, as similar fact evidence, the details of a sexual assault committed by appellant on another child in Georgia some 12 years earlier. My review of the record persuades me that appellant failed to preserve this issue for appellate review and, further, that the disputed evidence was indeed admissible to corroborate the testimony of the child victim in this case. Accordingly, I respectfully dissent.
The stated grounds for reversal of appellant‘s conviction are that the similar fact evidence admitted below and the facts of the instant case are not “strikingly similar“, do not “share some unique characteristic or combination of characteristics which sets them apart from other offenses” and that such evidence is not relevant to prove any material fact in issue.
“There are some allegations, and I think we‘ll try to prove them at trial, that the girl‘s mother, Clara [M.], is the instigator of the entire affair, trying to get money from Mr. Thomas so she can buy a car.
.....
Our defense that we‘re going to intend to show today is that this is a plan by the mother to get money from Mr. Thomas.”
Counsel added:
“Now, in the state‘s case today, I believe their most damning evidence, if you will, is the little girl‘s testimony that Mr. Thomas sexually battered her. I don‘t believe there‘s going to be any corroborative evidence whatsoever.”
The trial court rejected counsel‘s argument, such as it was, and ruled that T.J. would be permitted to testify in accordance with the state‘s notice. T.J. did, in fact, so testify during the afternoon of the following day, without objection.
On appeal, appellant‘s appellate counsel represents that appellant‘s trial counsel argued below against admissibility of the questioned evidence on the grounds that it was (1) stale and too remote; (2) was admitted solely to show appellant‘s propensity to commit the charged crime in a non-familial context; and (3) was not uniquely similar enough to be admitted.
A careful review of the transcript of the chambers hearing at which the admissibility of the evidence at issue was determined reflects that appellant‘s trial counsel did, in fact, refer to the evidence as “old.” With regard to propensity, following is the sum total of what counsel had to say on that subject:
“As to propensity, Mr. Thomas had had these children stay at his house in the past several years for periods of time. And from our deposition of the victim in the case, she said nothing happened, nothing has ever happened to her before, other than this one time.
So, I don‘t think this prior case could be used to show propensity or — what‘s the word I‘m thinking of — the fact that the conditions were there that he could take advantage of. Because I think that with the children staying at his house over the past several years and he having visited their house during the past several years, the opportunity must have arisen many many times.”
The hearing transcript is wholly and totally devoid of any defense argument with respect to uniqueness and/or similarity of the circumstances surrounding the instant offense and the Williams Rule offense. Likewise, as can be gleaned from the above quoted reference to propensity, counsel did not argue that the evidence was inadmissible because it tended to show appellant‘s propensity or bad character. He argued just the opposite — that such evidence did not show propensity. He made no argument whatsoever regarding consanguinity or familial or custodial authority and did not once contend that such evidence was not relevant to prove some material fact in issue. In sum, other than urging that it was “old” and would “inflame” the jury, appellant‘s trial counsel did not argue anything specific in support of his effort to exclude the evidence in question.
In an unbroken line of cases stretching back almost to the turn of this century, the Florida Supreme Court has been committed to the proposition that an appellate court will consider the grounds or objections to the admissibility of evidence as were specifically made in the trial court and cannot
Even if it could possibly be concluded on the record before us that appellant‘s trial counsel made the specific arguments attributed to him by appellate counsel, the issue of the trial court‘s admission of collateral crime evidence was waived for purposes of appellate review because defense counsel failed to object to such evidence when it was introduced at trial. In Correll v. State, 523 So.2d 562, 566 (Fla. 1988), cert. den., 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988), habeas corpus den. 558 So.2d 422 (Fla. 1990), a unanimous Florida Supreme Court, citing to Phillips v. State, 476 So.2d 194 (Fla. 1985) and German v. State, 379 So.2d 1013 (Fla. 4th DCA), cert. den. 388 So.2d 1113 (Fla. 1980), held that “[e]ven when a prior motion in limine has been denied, the failure to object at the time collateral crime evidence is introduced waives the issue for appellate review.”
The majority, in footnote 1 on p. 159 et seq. of the majority opinion, first suggests that the rule on waiver/timely objection, as announced in Correll, is not applicable where the defendant‘s objections are presented immediately prior to trial. It reasons that a timely objection at trial would be unnecessary and futile where the defendant‘s objections had been overruled so soon before the trial commenced. However, the authority cited in the footnote as supportive of this reasoning is in no way related to the issue involved in the instant case. Mercer v. State, 40 Fla. 216, 24 So. 154, 159-60 (1898) and Webb v. Priest, 413 So.2d 43 (Fla. 3rd DCA 1982) only make it unnecessary to raise additional objections after an objection has already been made and rejected at trial. The Am.Jur. cite makes it clear that while a witness is relating objectionable testimony in answer to counsel‘s questions at trial, opposing counsel need not repeat an objection as the witness answers each question. At best, these authorities hold only that an objection, once made at trial, is not subsequently waived by counsel‘s failure to make additional identical objections when similar testimony is later introduced. They do not even begin to suggest that an objection is futile simply because a defense objection to the admissibility of evidence was rejected prior to trial.
In German, cited in Correll, the Fourth DCA held that appellate review was waived by the defendant‘s failure to make a timely objection at trial though the court noted that the defendant‘s pre-trial motion in limine was denied “immediately prior to trial.” German v. State, 379 So.2d at 1013. (Emphasis added). Similarly, in Bonham v. State, 450 So.2d 269 (Fla. 3rd DCA 1984), the Third DCA held that the defendant waived his right to appellate review of the trial court‘s denial of his motion to suppress, where he unsuccessfully moved to suppress evidence before trial but
Seeking to further justify its reasoning on this issue, in the same footnote, the majority states that the trial court‘s pre-trial ruling on the similar fact evidence “has been treated by both the state and defense counsel as conclusive on the issue without the necessity of further objection when the evidence was actually put before the jury.” Since there is not one whit or scintilla of factual support in the record for this conclusion, I can only suppose that it is predicated on the majority‘s interpretation of the state‘s failure to raise the preservation issue in its answer brief. Otherwise stated, the majority seems to suggest that a trial court‘s ruling of intention to admit certain evidence at trial, made pre-trial but close in point of time to the commencement of trial, together with the state‘s subsequent failure to raise the preservation issue in its answer brief on appeal somehow combines to produce an “unwaiver” of that which a defendant waived by failing to object to the evidence at the time it was offered at trial. Extensive research has uncovered no support for this novel proposition either within or without this state.
Although I do not wish to further belabor the preservation issue, I feel compelled to make one last observation about the majority‘s position on the matter. In footnote 1, my colleagues seem to recognize the inadequacy of appellant‘s pre-trial objection. I so conclude because as soon as they assert that the matter was thoroughly discussed prior to trial, they immediately proceed to speculate that an objection was made at trial in an unrecorded side bar conference held just prior to introduction of the evidence in question. Although they note that “it is not entirely clear what transpired” at the conference, the majority concludes that a defense objection to the Williams Rule testimony must have been made at that time. It bases this conclusion on the following facts: 1) the giving of the Williams Rule instruction immediately after the unrecorded conference; and 2) when the trial court denied appellant‘s motion for new trial, which motion was based upon the inadmissability of the collateral
Rather than indulge in surmise and conjecture about what transpired at the unrecorded bench conference, it seems to me that the appellant is in the best position to enlighten us about whether or not an objection was made at trial to the collateral crime evidence. Indeed, we have only to read paragraph 15 of appellant‘s response to the state‘s motion for rehearing to find that “[D]efense counsel vigorously opposed the introduction of this evidence immediately prior to trial and raised the issue a second time at the hearing on the motion for new trial.” (Emphasis added.) Since even the appellant does not argue that he made a preserving objection to the Williams Rule evidence at trial, I confess to some discomfiture that the majority would argue this position for him. In my view, given appellant‘s representation, it is wholly unnecessary to read volumes from a blank record; to judicially create a scenario wherein the appellant‘s silence at trial is interpreted as an objection and the state‘s silence in the answer brief it was not required to file in the first place is interpreted as a recognition that appellant made an objection at trial. In sum, in his rehearing response, appellant acknowledges that he did not object to the similar fact evidence at trial as required by the cases cited above. Accordingly, we are unable to address on appeal the matter of the admission of the evidence in question. Crespo v. State, supra.
Lastly, on the merits, I disagree with the majority‘s conclusion that the similar fact evidence admitted below was not relevant to prove any material fact in issue. Witness credibility is a material fact always in issue3 and, in my view, the evidence in question was admissible under Heuring v. State, 513 So.2d 122 (Fla. 1987) and Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), rev. den., 529 So.2d 693 (Fla. 1988) to corroborate the testimony of the child victim, whose credibility most assuredly was placed in issue by appellant‘s defense that the charge against him was fabricated by the child‘s mother.
In Heuring, the defendant was charged with having committed sexual battery upon his step-daughter in violation of
In Calloway, the defendant was accused of committing sexual battery on his step-daughter; as in Heuring, the charged offense referred to the defendant‘s “position of familial or custodial authority.” See
Unlike Heuring and Calloway, the instant case does not involve a charge of sexual battery committed in the familial context.4 As the majority notes “[a]ppellant did not live in the household, and there was no blood relationship between appellant and the child victim.” From this, the majority concludes that there “is no basis for treating either episode [of sexual battery] as one involving the requisite family relationship such as that involved in the supreme court‘s decision in Heuring.” (Emphasis in majority opinion). The majority‘s attempt to distinguish the instant case from Heuring and Calloway based on the lack of consanguinity between the appellant and his victim is, in my view, contrary to the rationale upon which Heuring is based.
Admissibility in Heuring and Calloway is predicated upon the victim‘s familiarity with the perpetrator. This familiarity eliminates identification as an issue at trial and leaves the child victim‘s credibility as the critical question for the jury. In such cases, evidence that the defendant committed a similar crime is admissible to corroborate the victim‘s testimony and to refute the defendant‘s assertion that the testimony was fabricated. This rationale is as applicable where the victim is closely acquainted with the defendant, as in the instant case, as it would be if the defendant and victim were related by blood. See Ehrhardt, Florida Evidence, § 404.168 (1989 pocket part) (“while the Heuring opinion speaks only to the familial situation, its rationale would seem to be applicable whenever the defense in a sexual battery prosecution is that the victim has fabricated the incident, rather than that the wrong person has been charged“). The UCLA Law Review article, cited by the supreme court in Heuring, does not suggest that corroborative evidence of other sex offenses is limited to offenses committed in the familial context. The author of the article explains:
In cases involving alleged sex offenses where the victim is acquainted with the accused, identity is not at issue. Instead, the victim‘s credibility will be of paramount importance. The victim‘s credibility or apparent lack thereof may be determinative on the question of the defendant‘s ultimate guilt or innocence. In many sex crimes, where the only eye witnesses are the complaining witness and the perpetrator, and where there is a dearth of any independent physical evidence tending to establish the crime‘s commission, admission of corroborative evidence serves the dual purpose of reducing the probability that the prosecuting witness is lying, while at the same
time increasing the probability that the defendant committed the crime.
Comment, Defining Standards for Determining the Admissibility of Evidence of Other Sex Offenses, 25 UCLA L.Rev. 261, 286 (1977). (Emphasis added). Clearly, this reasoning does not depend upon the existence of a blood relationship or the place a defendant chooses to reside. Familiarity sufficient to eliminate identity as an issue at trial is all that is required.
I would grant rehearing and affirm appellant‘s conviction and sentence in all respects.
Notes
We consider this issue properly preserved for appellate review, the contentions and case authorities discussed in the dissenting opinion notwithstanding. We specifically note that the state did not timely argue that this issue was not adequately preserved.
The defense‘s objection to the admissibility of the collateral crime evidence was first made during the state‘s proffer of this evidence on the morning of trial at a hearing in chambers just before the judge and counsel went into the court room to select a jury. At this hearing, the court took up several matters that had to be considered out of the presence of the jury. The substance of the collateral crime testimony being offered by the state pursuant to
The trial transcript indicates that a bench conference was held just before the collateral crime witness was called by the state in its case, but it is not entirely clear what transpired because the conference was noted as “off the record” by the court reporter. We are confident, however, that the trial judge and counsel discussed the collateral crime evidence about to be presented and the court‘s prior ruling thereon because, at the conclusion of this conference, the court instructed the jury on the limited purpose of the collateral crime evidence it was about to hear without any request for such instruction being made on the record by defense counsel, although such an instruction is to be given only if so requested.
At the hearing on appellant‘s motion for new trial, which again raised the inadmissibility of the collateral crime evidence, neither the prosecutor nor the trial court expressed any concern that appellant‘s objection had not been properly made or preserved during trial, and they proceeded to argue and rule on the merits of the defense‘s objection. As further confirmation of our interpretation of the trial record, the court commented on appellant‘s objection as follows:
The testimony of this defendant‘s prior sexual battery in Georgia, the argument that was made in the motion for new trial was made prior to the presentation of that testimony. I think it‘s relevant. I think that‘s a test that is required to be met. Not only is it relevant but it would meet the old criteria of similar fact testimony. I think that testimony is all properly admissible. (Emphasis added).
In view of this comment, there can be no doubt that the trial judge and the prosecutor were fully aware of the defense‘s timely objection to this collateral crime evidence, a fact that most likely accounts for the state‘s not raising the waiver issue until after it was discussed in the dissenting opinion.
We are aware of the decision in Correll v. State, 523 So.2d 562 (Fla. 1988), in which the supreme court indicated that where the defense objected to the use of similar fact evidence in response to the state‘s notice filed before trial and the trial court ruled it admissible over defense objections, defense counsel‘s subsequent failure to object when that evidence was admitted during trial waived the issue for appellate review. We find that rule of waiver inapplicable in this case, however, in view of the fact that the trial court‘s ruling was made on the morning of trial and has been treated by both the state and defense counsel as conclusive on the issue without the necessity of further objections when the evidence was actually put before the jury. The substance of the similar fact evidence was fully discussed as on a proffer when the trial court considered defense counsel‘s objections at that hearing, and the court‘s ruling thereon was unequivocal and final. Hence, the purpose of preserving error below, i.e., to afford the trial court an opportunity to consider the issue in question, Corbett v. Dade County Board of Public Instr., 372 So.2d 971, 974-75 n. 3 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1192 (Fla. 1980), was fairly and completely served in this case. The courts of this state have recognized that there is no need to make further obviously vain and futile objections once an issue has been clearly ruled on by the trial judge. Mercer v. State, 40 Fla. 216, 24 So. 154, 159-60 (1898) (when an objection to the introduction of incompetent evidence has been once properly taken and overruled by the court, it is not waived by failure to object to such evidence through subsequent witnesses); Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982) (party not required to renew his objection each time in what would have been an obviously futile gesture). See 75 Am.Jur.2d Trial § 176 (1974). Since this issue was fully considered by the trial court when making its ruling, we see no valid purpose to be served by declining to review the issue at this time on this appeal. Moreover, we cannot overlook the fact that in Correll v. State, 523 So.2d 562 (Fla. 1988), the supreme court, after stating the rule of waiver, nevertheless ruled on the merits of the objection as if an objection had been made.
The state‘s motion for rehearing acknowledges that this procedural waiver issue was not timely argued in its answer brief. However, in view of the dissent, the state now characterizes its omission as “an oversight” and contends that, “This oversight is not authority for this court to address an issue which, as a matter of law, is procedurally barred” because waived by appellant, and, further, that “the State‘s failure to apprise the Court of this waiver in its brief most certainly does not constitute an `unwaiver’ which confers judicial authority to consider an unpreserved issue.” We reject the state‘s contention that appellant waived his objection to this evidence, not only because the state improperly attempts to insert this issue for the first time on motion for rehearing, but also because this contention is not supported by the record.
I believe it to be of no legal moment that Bonham involved a defendant‘s motion to suppress and the case at hand involved the state‘s motion to admit. In each case, the defendant sought to exclude certain evidence.