Audano v. State, No. 93-00494.

CourtCourt of Appeal of Florida (US)
Writing for the CourtRYDER, Acting
Citation641 So.2d 1356
PartiesPeter Anthony AUDANO, Appellant, v. STATE of Florida, Appellee.
Decision Date17 August 1994
Docket NumberNo. 93-00494.

641 So.2d 1356

Peter Anthony AUDANO, Appellant,
v.
STATE of Florida, Appellee.

No. 93-00494.

District Court of Appeal of Florida, Second District.

August 17, 1994.


641 So.2d 1357

Stuart C. Markman and James E. Felman, P.A., Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Acting Chief Judge.

Peter Anthony Audano seeks review of his conviction for three counts of committing a lewd and lascivious act upon a child under sixteen years of age in violation of section 800.04(3), Florida Statutes (1991), by committing an act defined as sexual battery under section 794.011(1)(h), Florida Statutes (1991), and one count of committing a lewd and lascivious act upon a child under sixteen years of age in violation of section 800.04(1), Florida Statutes (1991). We agree with the appellant that the trial court erred in admitting Williams1 Rule evidence, and accordingly, we reverse for a new trial. Because other issues raised have merit and will undoubtedly arise during retrial, we also address the other evidentiary and sentencing issues.

At the jury trial, B.H., the alleged victim, testified that she resided in a foster home with nine to thirteen other girls. At thirteen she was the youngest girl there, and most of the others were sexually active. The foster mother, suspicious that B.H. was sexually experienced, asked two older girls to obtain information from B.H. regarding her sexual experiences and to secretly tape record the discussion. To elicit information from B.H., the older girls first discussed some of their sexual experiences. B.H. revealed that on a few occasions she had engaged in sexual activity, including intercourse, with a 41-year-old man, Mr. Audano.

641 So.2d 1358

As a result of this conversation, the authorities were called, and, approximately nine months later, the instant charges were filed. At trial, B.H. testified that she had consensual sexual intercourse and other sexual contact with Audano a few times over a two-month period. Audano unequivocally denied each of her accusations.

The state sought to corroborate B.H.'s story with an eight-year-old uncharged accusation against Audano that the state sought to introduce under section 90.404(1)(a), Florida Statutes (1993), the Williams Rule. Eight different witnesses gave testimony concerning this incident.

The incident allegedly occurred when Audano and his wife were visited by a former neighbor, Lisa, and her girlfriend, Amy, both twelve or thirteen years of age. During that visit, the state claimed that Audano peeked at Lisa while she showered and on a different occasion fondled her while his wife read "dirty" stories aloud. The state also contended that during the same weekend Audano used his finger to rip open an existing hole in the back of Amy's jeans while he tickled her. The allegations were investigated by both law enforcement and HRS, but the matter was closed without an arrest or any other action. Audano's wife testified that the allegations were untrue. Lisa admitted at trial that the investigating authorities did not believe her story. Lisa insisted that she told Amy of the fondling incident immediately after it occurred, and that this prompted them to run away from the Audano home the next morning. But Amy stated that Lisa never told her of the fondling until approximately eight years later when they discussed their upcoming testimony a couple of months before the trial. At trial, Lisa and Amy were questioned about evidence showing the real reason they left the Audano home was because they had stolen certain items.

The judge admitted the Williams Rule allegations over defense objections. She did not find that the collateral offenses had been convincingly established, but deemed the accusations' truth or falsity to be a jury question. The court applied a relaxed standard of admissibility employed only in cases involving child abuse in the family context on the theory that the instant charges were "akin to a familial abuse."

Kathryn Kuehnle, a child psychologist, was permitted to offer over repeated objections an opinion as to the truth of B.H.'s accusations. In a lengthy hypothetical question, the prosecutor summarized the trial evidence and asked whether such a claim of abuse would be "consistent with the disclosure of a false allegation." Dr. Kuehnle answered that in her expert opinion, "that type of disclosure is more consistent with a true allegation of sexual abuse."

The prosecutor also presented a registered nurse who testified that B.H. showed physical signs of having engaged in sexual intercourse, but she was unable to state whether she had been penetrated by a penis or some other object. The defense unsuccessfully sought to introduce evidence that the nurse's findings were attributable to sexual abuse by B.H.'s mother, not Audano. The record showed that B.H.'s mother had the opportunity to abuse her. At the age of five, B.H. was taken from her mother in Georgia and placed in foster care until she was seven when she moved to Florida to live with her great aunt. B.H. told a court-appointed psychologist that she continued to have intermittent contact with her mother until a few months before the trial.

Norma Jean Anderson, B.H.'s close friend and confidante and the mother of B.H.'s best friend, testified in a proffer that B.H. told her that her mother had sexually molested her. The trial judge excluded Anderson's testimony on the ground that it was irrelevant.

At sentencing, the trial judge scored the recommended sentencing range as nine to twelve years with a permitted range of seven to seventeen years. She departed from the guidelines, however, and sentenced Audano to thirty years' imprisonment followed by thirty years' probation.

I. WILLIAMS RULE EVIDENCE

Audano argues that the admission of Williams Rule evidence was reversible error. Before evidence of a collateral offense

641 So.2d 1359
can be admitted under the Williams Rule, there must be clear and convincing evidence that the former offense was actually committed by the defendant. State v. Norris, 168 So.2d 541, 543 (Fla. 1964); Dibble v. State, 347 So.2d 1096, 1097 (Fla. 2d DCA 1977)

In determining the admissibility of collateral crime evidence, the trial court must make two determinations: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice. See §§ 90.402, 90.403 and 90.404(2), Fla. Stat. (1993).

The appellant urges first that the collateral accusations were not established by clear and convincing evidence. Moreover, even if the state could have proved the offense occurred, its admission would still be error because the allegation lacked the requisite unique similarity to the charged offenses, and the familial or custodial context exception to this requirement was inapplicable because all of the parties were unrelated.

We agree that the collateral accusations were not established by clear and convincing evidence. The stories were inconsistent. Although a conviction is not a prerequisite for admission of evidence of other crimes, Burr v. State, 550 So.2d 444, 446 (Fla. 1989), cert. granted and judgment vacated, 496 U.S. 914, 110 S.Ct. 2608, 110 L.Ed.2d 629 (1990), no offense was charged. The authorities did not believe the girls' stories at the time. Their stories do not yield the "firm belief or conviction, without hesitancy, as to the truth...

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38 practice notes
  • Robertson v. State, No. 3D98-2383.
    • United States
    • Court of Appeal of Florida (US)
    • March 28, 2001
    ...and convincing evidence that such crimes were, in fact, committed. See State v. Norris, 168 So.2d 541, 543 (Fla.1964); Audano v. State, 641 So.2d 1356, 1358-59 (Fla. 2d DCA 1994); Chapman v. State, 417 So.2d 1028, 1031 (Fla. 3d DCA 1982). In order to establish the alleged prior crime, the s......
  • Robertson v. State, No. 3D98-2383.
    • United States
    • Court of Appeal of Florida (US)
    • April 12, 2000
    ...and convincing evidence that such crimes were, in fact, committed. See State v. Norris, 168 So.2d 541, 543 (Fla.1964); Audano v. State, 641 So.2d 1356, 1358-59 (Fla. 2d DCA 1994); Chapman v. State, 417 So.2d 1028, 1031 (Fla. 3d DCA 1982). This requirement is the same whether the collateral ......
  • Cirota v. Jones, Case No. 3:17cv253-LC/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • September 20, 2018
    ...would not have prevented her testifying to Petitioner's prior conduct against her under the Williams rule. Id. (citing Audano v. State, 641 So. 2d 1356, 1359 (Fla. 2d DCA 1994) (holding a Page 56conviction is not required for admission of evidence of other crimes). The State appellate court......
  • Robertson v. State, No. SC01-890.
    • United States
    • United States State Supreme Court of Florida
    • October 10, 2002
    ...2001); Smith v. State, 743 So.2d 141, 143 (Fla. 4th DCA 1999); Smith v. State, 700 So.2d 446, 447 (Fla. 1st DCA 1997); Audano v. State, 641 So.2d 1356, 1359-60 (Fla. 2d DCA 1994); Malcolm v. State, 415 So.2d 891, 892 (Fla. 3d DCA 1982); Chapman v. State, 417 So.2d 1028, 1031 (Fla. 3d DCA 19......
  • Request a trial to view additional results
38 cases
  • Robertson v. State, No. 3D98-2383.
    • United States
    • Court of Appeal of Florida (US)
    • March 28, 2001
    ...and convincing evidence that such crimes were, in fact, committed. See State v. Norris, 168 So.2d 541, 543 (Fla.1964); Audano v. State, 641 So.2d 1356, 1358-59 (Fla. 2d DCA 1994); Chapman v. State, 417 So.2d 1028, 1031 (Fla. 3d DCA 1982). In order to establish the alleged prior crime, the s......
  • Robertson v. State, No. 3D98-2383.
    • United States
    • Court of Appeal of Florida (US)
    • April 12, 2000
    ...and convincing evidence that such crimes were, in fact, committed. See State v. Norris, 168 So.2d 541, 543 (Fla.1964); Audano v. State, 641 So.2d 1356, 1358-59 (Fla. 2d DCA 1994); Chapman v. State, 417 So.2d 1028, 1031 (Fla. 3d DCA 1982). This requirement is the same whether the collateral ......
  • Cirota v. Jones, Case No. 3:17cv253-LC/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • September 20, 2018
    ...would not have prevented her testifying to Petitioner's prior conduct against her under the Williams rule. Id. (citing Audano v. State, 641 So. 2d 1356, 1359 (Fla. 2d DCA 1994) (holding a Page 56conviction is not required for admission of evidence of other crimes). The State appellate court......
  • Robertson v. State, No. SC01-890.
    • United States
    • United States State Supreme Court of Florida
    • October 10, 2002
    ...2001); Smith v. State, 743 So.2d 141, 143 (Fla. 4th DCA 1999); Smith v. State, 700 So.2d 446, 447 (Fla. 1st DCA 1997); Audano v. State, 641 So.2d 1356, 1359-60 (Fla. 2d DCA 1994); Malcolm v. State, 415 So.2d 891, 892 (Fla. 3d DCA 1982); Chapman v. State, 417 So.2d 1028, 1031 (Fla. 3d DCA 19......
  • Request a trial to view additional results

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