Audano v. State

• Decision Date: 17 August 1994
• Docket Number: No. 93-00494.,93-00494.
• Citation: 641 So.2d 1356
• Parties: Peter Anthony AUDANO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

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.

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.

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 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 of the allegations sought to be established" required to meet the clear and convincing standard. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

Even had this evidence met the clear and convincing standard, it would have been inadmissible because the collateral offenses and the charged offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses. Heuring v. State, 513 So.2d 122, 124 (Fla. 1987). Recently, in Feller v. State, 637 So.2d 911 (Fla. 1994), the Florida Supreme Court, citing Heuring, reiterated that requirement of similarity where the only commonalities were the type of offense and the involvement of young girls. The charged offense there involved allegations of several incidents of penial and digital penetration of his stepdaughter's vagina while she was unclothed inside the family dwelling; the collateral offense involved a single episode of touching on the outside of the child's clothing while she sat on the defendant's knee as they were fishing.

The charged offenses here of penial and digital penetration, oral vaginal stimulation and vaginal fondling are clearly dissimilar to the collateral offenses of peeking in a shower, ripping open an existing hole in a child's jeans or fondling while his wife read "dirty" stories.

In cases involving sexual battery within a familial situation, evidence of other sexual batteries on another family member may be admitted to corroborate the testimony of the victim that the defendant had committed the sexual abuse upon the victim. Heuring. Our decision in Hallberg v. State, 621 So.2d 693, 701-03 (Fla. 2d DCA 1993) (Altenbernd, J., dissenting in part), review denied, 634 So.2d 627 (Fla. 1994), addresses at length the case law interpreting the term "custodial" in the context of section 794.041, Florida Statutes (1991), sexual activity with a child by a person in familial or custodial authority. We concluded there that the statute "was intended to protect a child from a person who stands in, holds or occupies a position of authority in relation to the child regardless of whether an offensive act was committed within the scope of the duties and responsibilities that such a position of authority contemplates." Hallberg at 702. The appellant here was not charged with a violation of section 794.041, and a Williams Rule issue was not raised in Hallberg, but nonetheless, the analysis of ...