Williаm E. Ware, convicted of exposing his sexual organs and exhibiting them lewdly/lasciviously in the presence of a disabled person, claims the trial court erred in denying his request to present evidence that the victim, L.R., was subjected to a sexual battery years ago. He claims the prior sexual battery was relevant because it may have impacted L.R.’s ability to “accurately perceive and testify about a new sexual assault.” We affirm.
I.
On a seasonable May afternoon in 2011, L.R. — who has a medical condition thаt makes walking extremely difficult — was out and about running errands at various stores on the Westside of Jacksonville with
Earlier that day, Officer Hysler of the Jacksonville Sheriffs Office had been dispatched to handle a call of a suspicious person at a bus stop near a CVS pharmacy, whose employеe phoned in the complaint. Upon arrival, the officer found Ware, who appeared “kind of out of it” and was yelling at people. The officer, who told Ware to leave the bus stop, soon left to respond to an unrelated call neаrby.
Shortly thereafter, L.R. and her daughter made the last stop on their agenda, which happened to be the same CVS pharmacy. Upon finishing their day of shopping together at the CVS, they crossed the street to the bus stop to await a ride home. Ware was still thеre. When L.R. and her daughter arrived, he was acting in a bizarre manner, yelling at passing cars for no reason and mumbling under his breath. Feeling uneasy, they tried to direct their attention elsewhere. Ware’s strange behavior continued, however, so L.R. and her daughter began tо practice gospel songs for their church choir practice that evening. Ware then asked the ladies if they were mother and daughter and what they were singing. L.R.’s daughter replied that they were singing church songs and looked away. Ware resumed his pacing back and forth between the bus stop bench and a nearby trash can into which he continually spat.
When he began “messing with the snaps on [his] shorts,” L.R. asked her daughter to move her further away from Ware, who was within only a few feet. Ware then walked to the trash can again, spat, and upon returning, stood right next to L.R. and asked her if “we could show [your] daughter how to swallow.” At that point, L.R. and her daughter decided they had enough of Ware’s crude behavior and started to leave. Ware walked back to the trash can, spat again, аnd approached the women, this time with his penis and testicles pulled out and fully exposed. L.R.’s daughter pushed her mom away from the bus stop as quickly as possible, back to the nearby CVS pharmacy from where the police were called a secоnd time. Officer Hysler, who responded to the first call about Ware, arrived to find L.R. distraught and traumatized by what happened.
Ware was arrested and charged with lewd or lascivious exhibition in the presence of a disabled person
II.
A.
Ware first argues that evidence that L.R. was subject to a prior sexual battery is relevant to show bias because she “may be so traumatized by the prior sex offense that [she] may be overly sensitive to what a reasonable person might deem suspicious or threatening behavior” and that trauma may affect “what the victim ‘thinks’ [she] saw happening.”
First, Ware’s core claim is that L.R.’s past experience as a victim of sexual battery makes her a potentially more sensitive victim in this case, which he views as a basis for examining her about the matter. But, in support of this point, Ware cites only Fehringer v. State,
No such parallelism is found here. Ware does not claim L.R. mаde prior accusations of sexual battery against him or others, only that she was the actual victim of such an attack and might be overly sensitive because of it. He also makes no claim that L.R. has ever made prior accusations that are remotely similar to the exposure of genitals here. He does not claim he knew either L.R. or her daughter before their unfortunate bus stop encounter with him, nor does he claim L.R. somehow consented to his actions. The situation is like that in Pantoja, where the Florida Supremе Court found no error in excluding a prior accusation that was against a different person, involved a onetime dissimilar act, and had the possibility of misleading the jury.
Second, L.R.’s reaction to Ware’s exposure of his genitalia is not an element of either of the crimes charged or of Ware’s defenses. Whether her reaction was exaggerated, subdued, or nonchаlant is legally insignificant as to whether he unlawfully exposed his genitals. Ware would be no less guilty of violating the two statutes if
Third, offenses involving the lewd exposure of sexual organs are akin to visual assault, which reflects an element of public decorum that cаn change as society’s norms change. As this Court has noted, this “change of attitude is illustrated by the fact that until recent times the waltz and the two-step were considered by a great many worthy and high-minded people as lewd and lascivious devices calculated to promote the works of the devil.” Duvallon v. State,
B.
Next, Ware argues that the prior sexual battery of L.R. “could possibly affect her ability to accurately pеrceive and testify about the events of this alleged offense.” Section 90.608, Florida Statutes (2012), states that any party may attack the credibility of a witness by showing a deficiency in her testimonial capacity or ability or opportunity to perceive, recall, or relate information. But Ware fails to identify any reason to suspect L.R.’s perceptive capabilities were deficient in any way. Her medical affliction does not affect her mental functions. L.R. testified that she had no vision problems that day; indeed, she had an unobstructed and closeup view of Ware’s exposed genitals. We agree with the State’s argument that no reason exists to believe that L.R.’s “ability to see, hear, and otherwise observe the events” at issue is in any way “altered by prior victimizatiоn.” Plus, her testimony was the same as that of her daughter, who also witnessed Ware’s genitalia and whose testimony was not alleged to lack credibility-
Finally, we fully agree with the State’s argument that “[e]ven if the victim’s prior sexual assault was marginally relevant, any relevanсe was outweighed by the inflammatory and prejudicial effect the evidence would have had on the jury.” The alleged value of the jury hearing cross-examination of L.R. about the prior sexual battery is far outweighed by the prejudice
III.
In conclusion, the trial court did not err in prohibiting cross-examination of L.R. abоut the prior sexual battery. Accordingly, we AFFIRM.
Notes
. " 'Lewd or lascivious exhibition in the presence of an elderly person or disabled person’ occurs when a person, in the presence of an elderly person or disabled person: 1. Intentionally masturbatеs; 2. Intentionally exposes his or her genitals in a lewd or lascivious manner; or 3. Intentionally commits any other lewd or lascivious act that does not involve actual physical or sexual contact with the elderly person or disabled person, including but not limited tо, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity, when the person knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give сonsent to having such act committed in his or her presence.” § 825.1025, Fla. Stat. (2013).
. "It is unlawful to expose or exhibit one’s sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose.” § 800.03, Fla. Stat. (2013).
. Ware claims on appeal that the trial court did not even allow a proffer of L.R.’s prior sexual battery, but his triаl counsel did make a proffer sufficient to apprise the trial court of the substance of Ware's intended cross-examination.
. The common law view has been discredited, and is now displaced by various rules and statutes. See, e.g., Fed. R. Evid. 412; § 794.022, Fla. Stat. (2013); Charles W. Eh-rhardt, Evidence, § 404.7 (2013); see generally Rebekah Smith, Protecting thе Victim: Rape and Sexual Harassment Shields Under Maine and Federal Law, 49 Me. L. Rev. 443, 454 (1997) ("Empirical research suggested that a woman’s sexual history was unrelated to her propensity to lie on the witness stand. Critics decried the defendant's use of the victim’s sexual past as a harassment device during cross-examination of the victim as outrageous and unacceptable. Unnecessarily vicious and humiliating cross-examination ‘resulted in nothing less than character-assassination in open court.’ Consequently, rules of evidence were proposed to protect victims from harassment on the stand and to limit the introduction of evidence of the victim’s sexual history.”).