Zerbe v. StateZerbe v. State
- Reporters:
- ,
- Before:
- May, Polen, Klein
The defendant appeals his convictions and sentences on one count of lewd and lascivious molestation and one count of child abuse. He has raised several issues, two of which we find have merit: (1) the denial of the defense motion for judgment of acquittal and (2) the admission of collateral act evidence. We reverse his convictions and remand the case to the trial court to vacate the conviction on the child abuse count and to conduct a new trial on the lewd and lascivious molestation count.
The defendant was a karate instructor; he opеrated his studio out of an old one-room schoolhouse. The students were both male and female and ranged in age from young children to adults. The schoolhouse was located in a wooded area and did not have indoor plumbing. The port-o-lets behind the schoolhouse were often turned оver. As a result, the students used the wooded area and buckets as bathroom facilities.
Around Easter, a five-year-old female student was changing her clothing for class when her grandmother entered the dressing area and observed the child with her pants down around her ankles and the karate instructor standing nеarby. She asked her granddaughter why her pants were down. The child replied that her
This call рrompted the child‘s mother to contact the parents of an eleven-year-old girl, who also attended class at the studio. Those parents in turn questioned their daughter, who initially had nothing to report, but then told them that the instructor pestered her to go to the bathroom. Subsequently, she told her parents about an incident that occurred approximately six months earlier.
According to the eleven-year-old, she was standing on the back porch of the schoolhouse and needed to use the bathroom. She did not want to go into the woods. The instructor told her it would be easier for her if she could urinate from a standing position. He told her to remove her pants and stand with her legs apart, at which point he touched her genital area. On another occasion, when the young girl did not have to use the bathroom, the instructor squeezed her stomach and said that maybe she could go then. These incidents involving the eleven-year-old are the basis of the molestation count.
The eleven-year-old child also told her parents that the instructor repeatedly told her to go to the bathroom, which annoyed her. It is these repeated requests that are the subject of the child abuse count. Throughout the trial, and specifically in closing argument, the State limited the child abuse count to these facts; it did not include the touching incidents as part of the child abuse count.2
Prior to trial, the State filed a “Notice of Intention to Use Hearsay Statement of Child Victim Pursuant to
The State then filed a “Notice Pursuant to
In its opening statement, the State did not refer to the incident involving the five-year-old. When the State called the five-year-old‘s grandmother to the stand, the trial court failed to give a limiting instruction. Shortly thereafter, the court held a sidebar conference and instructed the jury that it would receive “evidence of other crimes allegedly committed by [the defendant] . . . [the defendant] is not on trial for
The evidence you are about to receive concerning evidence of other acts committed by the defendant will be considered by you only for the purposes of corroborating the testimony of [the victim] and you should consider it only as it relates to the issue of corroborating. And [the defendant] is not on trial for any acts involving the [five-year-old] child.
(Emphasis added).
The defense moved for a judgment of acquittal at the clоse of the State‘s case. With regard to the child abuse count, defense counsel argued there was absolutely no evidence that the defendant intended to cause mental injury to the child or that any mental injury had in fact occurred. The trial court denied the motion. The defense renewed the motion at the close of the defense case.
During closing arguments, the five-year-old‘s statements were prominent. The State recounted the grandmother‘s testimony. The defense argued that the eleven-year-old had fabricated the story.
The jury found the defendant guilty of the two counts charged. Thе jury also answered a special interrogatory requested by the State to avoid a perceived double jeopardy issue. The question was: “Did [the defendant] commit the crime [of child abuse] without engaging in conduct that was lewd or lascivious?” The jury responded in the negative.
Immediately after thе jury was discharged, the State raised the double jeopardy issue with the trial court. The State was concerned that the jury‘s answer to the special interrogatory meant that the defendant did not commit child abuse outside of the lewd or lascivious act for which he was charged with molestation. Therеfore, it posited the defendant‘s right against double jeopardy would be violated if the court sentenced the defendant on the child abuse count. To avoid the problem, the State did not include the child abuse count on the defendant‘s scoresheet. Subsequently, however, the State reversed its рosition and advised the court that it could sentence the defendant for both offenses. Nevertheless, the State did not ask the court to do so.
The trial court denied the defense motion for new trial and adjudicated the defendant guilty on the molestation count. The court sentenced the defеndant to ninety months in prison followed by fifteen years of sex offender probation and found him to be a sexual predator. The court also adjudicated him guilty of child abuse but did not sentence him on that count. The trial court denied the defense motion for rehearing.
The defendant first argues the trial court erred when it denied his motion for judgment of acquittal on the child abuse count. The State responds that the statute does not require proof of an actual injury.
Generally, “an appellate court will not reverse a conviction that is supported by competent, substantial evidence.” Johnston v. State, 863 So.2d 271, 283 (Fla.2003). However, a judgment of acquittal is proper if the State fails to prove a prima facie case of guilt when the evidence is viewed in the light most favorable to the State. Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001). We review court rulings on motions for judgment of acquittal de novo. Johnston, 863 So.2d at 283.
The legislature defined child abuse, in part, as “[a]n intentional act that could reasonably be expected to result in . . . mental injury to a child.”
To survive a motion for judgment of acquittal, the State must establish а prima facie case. The State chose to proceed on the child abuse count solely on the allegation that the defendant pestered the victim about going to the bathroom. In closing argument, the State specifically restricted the count to these facts and advised thе jury that the count had nothing to do with the touching. The question then becomes whether the evidence established a prima facie case for child abuse as defined by the applicable statutory subsection. We hold it does not.
We find this case similar to King v. State, 903 So.2d 954 (Fla. 2d DCA), review denied, 908 So.2d 1058 (Fla.2005). There, the court reversed a school administrator‘s convictiоn for child abuse based on the paddling of an eight-year-old child. The Second District concluded that as a matter of law, “the injuries inflicted during the paddling did not constitute felony child abuse.” Id. at 955. We find the same to be true here. There simply was no evidence that the defendant‘s repetitive requests for the child to go to the bathroom was done intentionally or “could reasonably be expected to cause mental injury.” We find that as a matter of law, these facts taken in the light most favorable to the State, are insufficient to establish a prima facie case of child abuse. We thereforе reverse the defendant‘s conviction on that count.
The defendant‘s second argument concerns the trial court‘s admission of collateral act evidence. The defendant argues the trial court abused its discretion in admitting evidence of the incident with the five-year-old because it was not similar to the crime charged, occurred during different time frames, and was extremely prejudicial. The State suggests the evidence was relevant and corroborated the victim‘s testimony. Alternatively, the State suggests any error was harmless.3
“A trial judge‘s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Dessaure v. State, 891 So.2d 455, 466 (Fla. 2004). The same standard applies to rulings on admitting collateral act evidence. LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001). However, this wide discretion is limited “by the rules of evidence.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).
In child molestation cases, “evidence of the defendant‘s commission of other crimes, wrongs, or acts of child molestation
In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior aсts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presenсe or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.
Id. at 1262. The trial court should also assess whether the evidence is cumulative and whether it becomes a feature of the trial. Id. Lastly, the trial court must give approрriate cautionary instructions at the time the evidence is admitted and during its final instructions to the jury. Id.
The threshold question is whether there is clear and convincing evidence that the defendant committed the collateral act. Here, the evidence concerning the five-year-old was in conflict; it сannot be said that it was clear and convincing. Second, that evidence did not tend to prove or disprove any fact concerning the molestation charge. Third, there was no need to lay out the sequence of events giving rise to the charged crime after the testimony concerning thе molestation charge had been elicited earlier in the trial.
Fourth, the acts were not sufficiently similar. While both events occurred at the karate school the charged crime involved a touching while the collateral act involved the defendant‘s observation of a young child partially undressed. Fifth, the events took place five-and-a-half months apart with the collateral act occurring subsequent to the charged crime. Sixth, the probative value was outweighed by the prejudicial effect of the collateral act evidence.
And last, the mandated cautionary instruction was improper. The first instruction referenced other crimes allegedly committed by the defendant. Since this was not an accurate representation of the facts, the next morning, the court instructed the jury a second time. While correcting an error from the day before, the second instruction аgain called attention to the collateral act evidence.
This analysis causes us to conclude that the trial court abused its discretion in admitting the collateral act evidence in this case. We cannot say that this error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
We therefore reverse the defendant‘s convictions and remand the case to the trial court for a new trial on the lewd and lascivious molestation count and to vacate the conviction for child abuse.
Reversed and Remanded.
POLEN and KLEIN, JJ., concur.