Florida Third District Court of Appeal – Criminal Headnotes – October 10, 2018

  • Oct 10 2018


Direct appeal from conviction and sentence on two counts of sexual battery of a minor between ages twelve and eighteen by a person in a position of familial or custodial authority.

Prior to trial, the state had filed a notice under section 90.404(2)(b) of the Florida statutes of its intention to introduce the testimony of a woman, now in her thirties, whom the defendant had allegedly molested twenty years previously, when he lived with her mother and had undertaken the role of “stepfather.”  The trial court determined this testimony would be admissible under the “collateral crime” rule of Williams v. State, 110 So. 2d 654 (Fla. 1959).  On appeal, the defendant challenged this ruling as an abuse of discretion.

The appeals court affirmed, noting that in McLean v. State, 934 So. 2d 1248 (Fla. 2006), the Florida Supreme Court had read the statute as broadly allowing evidence of “other acts of child molestation” by the defendant “regardless of whether the charged and collateral offenses occurred in the familial context or whether they share any similarity” at all, provided the trial court determines that the evidence “clearly and convincingly shows” that the defendant committed the alleged prior act, and that the probative value of the evidence is not “substantially outweighed by the danger of unfair prejudice.”

Here, the appeals court found the alleged collateral acts to be factually “strikingly” similar to those charged: in each case, the victim was in her early teens and lacking in self-confidence, her natural father was incarcerated, her mother had past or ongoing issues with drug abuse and was financially dependent on the defendant, and the specifics of the manner in which the defendant abused the victim — vaginal penetration, but withdrawing before ejaculation — were identical.

Further, the trial court gave a requested cautionary instruction to the jury prior to introduction of the collateral crimes evidence, and the state did not focus on this testimony in closing argument.


Direct appeal from conviction and sentence on charges of second-degree murder with a firearm and accessory after the fact.  The defendant argues that the trial court erred: (1) in denying his request to exercise a peremptory strike of a prospective juror; (2) in denying his motion to suppress a witness’ identification of him from a photographic lineup he claimed was unduly suggestive; and (3) in admitting prior statements of a witness called by the state, ostensibly to impeach inconsistent statements the witness made at trial.

The appeals court rejected the first two assignments of error in a footnote and focused on the third.

The witness in question had identified the defendant from a photo lineup several years earlier, and had more recently confirmed his earlier statements, but at trial he seemed to recant, saying he had identified the defendant at the time in order to avoid arrest.  The defense moved to strike the prior identification testimony on the ground that the state had called the witness only for the purpose of introducing his prior statements, which were otherwise hearsay, by way of impeachment.  The trial court denied this motion.

The appeals court affirmed, agreeing with the trial court’s finding that the state had been surprised by the witness’ testimony, and had not called him “exclusively for — or even in large part to impeach him.”

Posted in: Criminal, Third DCA