Adkins v. State, No. 91-1389

CourtCourt of Appeal of Florida (US)
Writing for the CourtMINER
Citation605 So.2d 915
Decision Date11 September 1992
Docket NumberNo. 91-1389
Parties17 Fla. L. Week. D2141 Wayne ADKINS, Appellant, v. STATE of Florida, Appellee.

Page 915

605 So.2d 915
17 Fla. L. Week. D2141
Wayne ADKINS, Appellant,
v.
STATE of Florida, Appellee.
No. 91-1389.
District Court of Appeal of Florida,
First
District.
Sept. 11, 1992.
Rehearing Denied Oct. 1, 1992.

Page 916

Louis O. Frost, Jr., Public Defender, James T. Miller, Asst. Public Defender, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

MINER, Judge.

Raising two points on appeal, appellant, Wayne Adkins, seeks review of his conviction on four counts of sexual battery upon a child under twelve years of age. We affirm.

Citing to Kopko v. State, 577 So.2d 956 (Fla. 5th DCA 1991), quashed, 596 So.2d 669 (Fla.1992), appellant first argues that the trial court erred in permitting more than one witness to testify as to the child victim's prior consistent statements regarding sexual abuse. We find no merit in this argument and affirm on this point without further comment. Pardo v. State, 596 So.2d 665 (Fla.1992). Secondly, appellant maintains that the trial court reversibly erred in admitting evidence of other crimes that were not sufficiently similar to the charged offenses. Finding to the contrary, we affirm on this point also for the reasons discussed herein.

Appellant was charged by information with four counts of sexual assault committed on K.T., his stepson, when the boy was between 7 and 9 years of age. 1 Each count of the information alleged that appellant forced K.T. to take appellant's penis into his mouth.

Pre-trial, the state served notice of intent to rely in part on evidence of other crimes, wrongs or acts pursuant to section 90.404(2), Florida Statutes. Specifically, the notice provided that the state would introduce evidence that appellant had, during a portion of the same time frame when the charged offenses were allegedly committed, fondled the vagina of R.T., K.T.'s younger sister, and attempted to force her to place her mouth on his penis. Additionally, the state sought to introduce evidence that about the same time as appellant allegedly committed the offenses against R.T., he had fondled the breasts and vagina of C.C., who is the maternal aunt of K.T. and R.T., but is only a year or two older than the siblings.

After a hearing on the collateral crime evidence and over appellant's objection that the offenses testified to by R.T. and C.C. were irrelevant because they were not sufficiently similar to the charged offenses to be admissible as similar fact evidence, the court ruled that such testimony would be admitted and granted appellant a standing objection to that evidence. In March 1991, the case proceeded to trial.

At trial, K.T. testified that at the time the charged offenses were committed on him, he lived with his mother, S.A., his younger sister, R.T., and appellant, his stepfather. His mother worked at night and he and his sister were left in the charge of appellant, who by all accounts was an alcohol abuser. The incidents of which K.T. complained occurred in the living room when his sister was in bed or taking a bath, and primarily when appellant had been drinking. According to the boy, on "a lot of these nights" appellant "made me suck his penis." Appellant would warn K.T. that if he told of those acts, appellant would kill him, his sister

Page 917

and his mother, and burn the house down. Although the child's testimony was lacking in various details and conflicted to some degree with what he had previously told Child Protection Team investigators, his testimony that he had been sexually abused remained substantially unshaken under adroit and searching cross-examination.

R.T., who was 10 years old at the time of the trial, testified that appellant touched her on "[my] boobies, where you pee at and your bottom." She was unsure how many times this happened but did say that it happened "a lot of times", usually when appellant had been drinking. These incidents took place when she was alone with appellant and usually occurred in her bedroom or in her mother's room. She recounted that appellant warned her not to tell what had happened or he would burn the house down. 2

C.C., who was 13 years old at the time of trial, testified to an incident which took place "a year or so" prior to the trial when she was spending the night at appellant's home. She and R.T. were sleeping in the same bed when appellant entered the room wearing his robe and pajamas. C.C. was awakened when appellant moved her night clothes aside and began to fondle her in the vaginal area. He told C.C. that he would hit her if she made any outcry.

After the state rested its case, appellant called a number of witnesses who testified that he had a good relationship with his stepchildren. He took the stand in his own behalf and testified that his drinking had caused problems during his marriage to S.A. but that he had a "wonderful" relationship with the children. He denied all allegations of sexual abuse and, as his counsel had suggested during opening statement to the jury, intimated that his ex-wife had persuaded the children to lie "because she didn't want me around. She's afraid of me." Nevertheless, the jury found appellant guilty as charged and he was sentenced to concurrent life terms on each count.

Citing to Ables v. State, 506 So.2d 1150 (Fla. 1st DCA), rev. denied, 513 So.2d 1063 (Fla.1987), in which this court reversed a conviction for sexual battery upon a child because the panel concluded that the "similar fact evidence" admitted at trial was not sufficiently similar to the charged offense to be admissible, 3 appellant reminds us that the similar fact evidence admitted below involved children of the opposite sex. He argues that the acts themselves were different and took place at different times and places. Thus, he concludes that the evidence was improperly...

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7 practice notes
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...at issue. Florida district courts have adopted the rationale of Calloway in familial sexual battery cases. 5 See, e.g., Adkins v. State, 605 So.2d 915 (Fla. 1st DCA1992); Gould v. State, 558 So.2d 481 (Fla. 2d DCA1990); Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA), rev. denied, 591 So.2d 1......
  • Phila. Indem. Ins. Co. v. Stazac Mgmt., Inc., Case No. 3:16-cv-369-J-34MCR
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 31, 2018
    ...construe the "contract in its entirety, striving to give every provision meaning and effect.") (citation omitted); see also Weldon, 605 So. 2d at 915 ("[I]n construing contracts of insurance we must apply a construction that is practical and reasonable as well as just."). Based on the foreg......
  • Dahl-Eimers v. Mutual of Omaha Life Ins. Co., DAHL-EIMER
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 9, 1993
    ...Excelsior, 369 So.2d at 942. Further, ambiguity is not invariably present when a contract requires interpretation, Weldon, 605 So.2d at 915; Gulf Tampa Drydock, 757 F.2d at 1175, and failing to define a term does not create ambiguity per se. Jefferson Ins. Co. v. Sea World, Inc., 586 So.2d ......
  • Moore v. State, No. 1D19-2209
    • United States
    • Court of Appeal of Florida (US)
    • February 26, 2021
    ...than probative, but " ‘similar’ does not mean ‘exactly the same.’ " See Stewart , 147 So. 3d at 124 (quoting Adkins v. State , 605 So. 2d 915, 919 (Fla. 1st DCA 1992) ). Here, the victims were biological children of Appellant, and all the acts happened while they were asleep in Appellant's ......
  • Request a trial to view additional results
7 cases
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...at issue. Florida district courts have adopted the rationale of Calloway in familial sexual battery cases. 5 See, e.g., Adkins v. State, 605 So.2d 915 (Fla. 1st DCA1992); Gould v. State, 558 So.2d 481 (Fla. 2d DCA1990); Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA), rev. denied, 591 So.2d 1......
  • Phila. Indem. Ins. Co. v. Stazac Mgmt., Inc., Case No. 3:16-cv-369-J-34MCR
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 31, 2018
    ...construe the "contract in its entirety, striving to give every provision meaning and effect.") (citation omitted); see also Weldon, 605 So. 2d at 915 ("[I]n construing contracts of insurance we must apply a construction that is practical and reasonable as well as just."). Based on the foreg......
  • Dahl-Eimers v. Mutual of Omaha Life Ins. Co., DAHL-EIMER
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 9, 1993
    ...Excelsior, 369 So.2d at 942. Further, ambiguity is not invariably present when a contract requires interpretation, Weldon, 605 So.2d at 915; Gulf Tampa Drydock, 757 F.2d at 1175, and failing to define a term does not create ambiguity per se. Jefferson Ins. Co. v. Sea World, Inc., 586 So.2d ......
  • Moore v. State, No. 1D19-2209
    • United States
    • Court of Appeal of Florida (US)
    • February 26, 2021
    ...than probative, but " ‘similar’ does not mean ‘exactly the same.’ " See Stewart , 147 So. 3d at 124 (quoting Adkins v. State , 605 So. 2d 915, 919 (Fla. 1st DCA 1992) ). Here, the victims were biological children of Appellant, and all the acts happened while they were asleep in Appellant's ......
  • Request a trial to view additional results

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