Anderson v. State, 87-1835
| Decision Date | 05 October 1989 |
| Docket Number | No. 87-1835,87-1835 |
| Citation | 14 Fla. L. Weekly 2360,549 So.2d 807 |
| Parties | 14 Fla. L. Weekly 2360 Bruce Douglas ANDERSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
ON MOTION FOR REHEARING
We grant appellee's motion for rehearing, withdraw our prior opinion, and in its place, issue the following.
Anderson appeals from his convictions on four counts of engaging in sexual activity with his stepdaughter, a child under eighteen years of age, with whom he stood in a position of familial or custodial authority. 1 We agree that one conviction should be reversed because the child was unable to testify with certainty that Anderson abused her on or between December 4 and December 9, 1985, as was specified in the amended information. We remand this cause for resentencing on the three remaining convictions and direct that the trial court provide for a procedure to determine the amounts to be ordered in restitution in the future for the child's rehabilitation and therapy, in view of Anderson's ability to pay the sums to be required. 2
Anderson argues that the three remaining counts of sexual battery should be reversed for new trial because the state introduced at trial evidence that Anderson prostituted his stepdaughter to other men, that he sexually abused her almost every day or night for six years since she was nine years old, and that Anderson sexually abused his sister some eighteen years before the trial. We think all of this claimed improper Williams 3 Rule evidence provides no basis for reversal on appeal because no objection was made to its admission at trial. Steinhorst v. State, 412 So.2d 332 (Fla.1982).
In this case the state filed a notice of intent to offer specified Williams Rule evidence some two months before trial: that for six years (commencing when the child was nine years old) Anderson had vaginal, anal, and oral intercourse with her on an almost daily basis; that he prostituted her to other men; and that he sexually abused his sister some eighteen years prior to the date of the trial. On the first day of the trial, the defense filed a motion in limine as to the proposed Williams Rule evidence, alleging the acts were not sufficiently similar nor specifically described and too remote in time. Prior to commencement of the proceedings before the jury, the trial judge apparently was not asked to rule on the motion.
During the state's opening argument, defense counsel objected to the prosecutor's reference to the collateral evidence. At a bench conference, the trial judge denied defense counsel's motion in limine. Later in the trial when testimony about the collateral crimes was given by Anderson's stepdaughter and sister, no objections were raised by the defense. Further, much of the child's testimony about being prostituted to other men was brought out by defense counsel on cross-examination. 4
Defense counsel's contemporary objection to the testimony when it is offered at trial is essential to raise the propriety of its admission on appeal. The controlling law is clearly stated in Correll v. State, 523 So.2d 562 (Fla.1988), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988). The Court held:
Even 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. Phillips v. State, 476 So.2d 194 (Fla.1985); German v. State, 379 So.2d 1013 (Fla. 4th DCA), cert. denied, 388 So.2d 1113 (Fla.1980).
Correll at 566. Because the evidence against Anderson in this case was overwhelming, we reject any suggestion that the admission of any of the claimed erroneously admitted Williams Rule evidence constituted fundamental error. Craig v. State, 510 So.2d 857 (Fla.1987).
We agree that the sister's testimony was properly admitted under the dictates of Heuring v. State, 513 So.2d 122 (Fla.1987). These collateral events involving Anderson's sister took place nineteen years before the trial, but those in the Heuring case took place twenty years prior to the trial. With regard to the argument that the abuse of the sister was too remote in time, the court in Heuring noted:
[T]he opportunity to sexually batter young children in the familial setting often occurs only generationally. Heuring sexually battered the young female members of his family when the opportunity arose.... We agree with the district court that the passage of time in this instance did not affect the reliability of the evidence.
Indeed, Anderson's sexual advances against his sister were not successful. The sister was twelve when he abused her; the stepdaughter was fourteen when the acts charged under the indictment took place and nine when the pattern of abuse began. However, exact identity or similarity of crimes is not a requirement under Heuring v. State, 513 So.2d 122 (Fla.1987). The court said:
[S]ome courts have in effect relaxed the strict standard normally applicable to similar fact evidence. These courts have allowed evidence of a parent's sexual battery on another family member as relevant to modus operandi, scheme, plan, or design. We find that the better approach treats similar fact evidence as simply relevant to corroborate the victim's testimony, and recognizes that in such cases the evidence's probative value outweighs its prejudicial effect.
Accordingly, we affirm Anderson's conviction on counts II, III and V, and reverse his conviction on count VI. We remand for resentencing on those three counts, as specified in this opinion.
AFFIRM in part; REVERSE in part and REMAND for resentencing.
While I agree in all regards with the majority opinion, I write to address additional issues involved in my decision. I would rule that all of the claimed improper Williams Rule evidence was properly admitted in this case.
The evidence concerning Anderson's sexual activity with the child victim prior to the more recent dates set forth in the indictment (when she was fourteen years old) was necessary in this case to explain why the child victim was unable to pin down the specific dates and circumstances of her ordeals with Anderson. This was because Anderson had sex with her almost every night, beginning when she was only nine years old and ending only when HRS took her away from Anderson's custody and control, at age fourteen. She only survived because she blanked out the present and removed herself mentally from her nightly degradations. As it was, the defense succeeded in having two counts directed in Anderson's favor, because the child was unable to clearly recall the one week out of six years she was not abused nightly. Pathetically, the key to the defense in this case was not when did he rape you, as in a normal rape case, but when did he stop raping you for a short time?
Further, the continuous pattern of sexual abuse committed on this child was necessary and relevant to explain the child's physical condition. At age fourteen, the child was sexually mature. The expert witness [Dr. Frederick Weber, Associate Professor of Pediatrics at Gainesville] testified her cervix and sex organs were in a state consistent with what a doctor would find in examining a married woman. Obviously, she had engaged in frequent sex with someone. Anderson and the child both testified she was never permitted by him to have a boyfriend or a date, or even to attend school regularly, and that she shared the same bed and bedroom as her mother and stepfather for five years.
The child's testimony about being forced by Anderson to have sex with other men for Anderson's pecuniary benefit was but a small wrinkle in the pattern of constant abuse at his hands. He was always present to direct her about how to please his customers. In my view it was a sufficiently collateral aspect of his own abuse to make it admissible as part of the overall pattern of child incest. 1
The defendant was convicted of four counts of violating section 794.041(2)(b), Florida Statutes (1985) by engaging in sexual activity with his stepdaughter, a child under 18 years of age with whom the defendant stood in a position of familial or custodial authority. In addition to evidence material to the crimes charged and over objection of defense counsel, the trial court allowed the State to introduce testimony of the stepdaughter that at times and places not involved in the acts charged, the defendant made her sleep with other men and made her get in bed and "seduce" other men while the defendant sat at the bedside and watched. The State was also permitted, over objection, to introduce testimony of the defendant's sister that, during the years 1974-1978 when the sister was about 12 years old and the sister and the defendant were living in the same household, the defendant fondled the sister's breasts and made sexual advances towards her.
The conviction on Count VI should be reversed because of lack of evidence that the alleged crime occurred within the dates specifically alleged in the information. See State v. Jefferson, 419 So.2d 330 (Fla.1982) and Smith v. State, 434 So.2d 18 (Fla. 5th DCA 1983).
Charge: D defendant is charged with a sexual offense on V victim at T time and P place.
Issue: At trial, the factual issue is simply whether D committed the act charged on V at T time and P place.
Proffer 1:
The State proffers the testimony of witness V that she saw D commit the charged offense on V (herself) at T time and P place. This sworn testimony is admissible, of course, because...
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