Bierer v. State

• Citation: 582 So.2d 1230
• Decision Date: 16 July 1991
• Docket Number: No. 90-1526,90-1526
• Parties: Michael BIERER, Appellant, v. The STATE of Florida, Appellee. 582 So.2d 1230, 16 Fla. L. Week. D1833
• Court: Court of Appeal of Florida (US)

Page 1230

582 So.2d 1230

Michael BIERER, Appellant, v. The STATE of Florida, Appellee.

No. 90-1526.

582 So.2d 1230, 16 Fla. L. Week. D1833

District Court of Appeal of Florida Third District.

July 16, 1991.

Bennett H. Brummer, Public Defender, and Robert Kalter, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Joan L. Greenberg, Asst. Atty. Gen., for appellee.

Before NESBITT, FERGUSON and LEVY, JJ.

FERGUSON, Judge.

Bierer, the appellant, was convicted of lewd assault, two counts of battery, and one count of attempted battery on three second and third grade girls who were under his care or supervision. Two of the victims are his stepdaughters. The third victim is a neighborhood friend of the stepdaughters who frequented the appellant's home every day. The main issue on appeal is whether the court's failure to sever the offenses allegedly committed on stepdaughters S.V. and J.V., as charged in counts II, III, and IV of the five-count information, with the offenses allegedly committed on the stepdaughters' friend, G.S., as charged in counts I and V, was erroneous and prejudicial. ¹

Bierer contends that his motion to sever should have been granted because the offenses occurred at different times and places and involved different victims. In response, the State argues that the offenses were connected in an episodic sense because (1) the involvement of more than one victim does not preclude joinder, (2) the offenses were continuous in nature and overlapping during a seventeen-month period, and (3) the offenses usually occurred in the defendant's home, and were committed in the same fashion. Further, the State contends that even if joinder was not proper, the appellant was not prejudiced because, in a separate trial for the offenses committed against G.S., the evidence of the offenses committed against stepdaughters S.V. and J.V. would have been admissible to show a general pattern, motive, intent or absence of mistake.

We agree with the appellant that his argument for severance is supported by Wallis v. State, 548 So.2d 808 (Fla. 5th DCA 1989), and Ellis v. State, 534 So.2d 1234 (Fla. 2d DCA 1988). ² It was held in those cases that the offenses were not so connected in an episodic sense to justify consolidation. See Fla.R.Crim.P. 3.151. In Wallis the three victims were sisters. As grounds for reversing the convictions, the court ruled that "[t]he acts charged in each information related to a different victim and an entirely separate and different factual event than that charged in each other information." 548 So.2d at 809. In Ellis the court concluded that the acts committed against two of the victims were not connected in the episodic sense to the act allegedly committed against a third victim where the evidence showed only that the acts "were sex offenses occurring within the same two month period in defendant's home, the victims knew each other, and the defendant was allegedly guilty." 534 So.2d at 1236. In neither case, however, did the courts subject the improper consolidation to a harmless error analysis based on the "familial context" rule for similar fact evidence as announced in Heuring v. State, 513 So.2d 122 (Fla.1987).

In Heuring, the supreme court adopted the view that strict standards normally applicable to similar fact evidence should be relaxed in cases involving sexual battery committed on minor children "within the familial context." ³ What constitutes a familial context was not definitively explained. The first district, noting the legislature's intention "to protect minor children from the predatory influences of older persons who establish close family-type ties with them", Stricklen v. State, 504 So.2d 1248, 1250 (Fla. 1st DCA 1986), set forth a broad definition of the term "familial" in determining whether a defendant had "familial or custodial" authority over a child victim for the purposes of prosecution for familial sexual battery. ⁴

In Coleman v. State, 485 So.2d 1342, 1345 (Fla. 1st DCA 1986), the first district held that "familial or custodial" must be interpreted to include any person maintaining a close relationship with a child who lives in the same household as the child. That definition was subsequently broadened to include persons who merely have temporary custody of a child. Stricklen upheld the conviction of a defendant who did not reside in the victim's home but who had assumed responsibility for the child's care on weekends. The first district's broadened definition was adopted in Collins v. State, 496 So.2d 997 (Fla. 5th DCA 1986), rev. denied, 506 So.2d 1040 (Fla.1987), which upheld a conviction for familial sexual battery where the defendant had frequent contact with the child, she had ridden in his truck many times, the defendant had daily contact with the victim's mother, and the defendant's care and control of the child was with the mother's approval at the time the crime was committed.

Concluding, on the pivotal question, that the factual scenario of this case is contemplated by Heuring, a harmless error analysis is mandated. Sec. 924.33 Fla.Stat. (1989); State v. DiGuilio, 491 So.2d 1129 (1986). In Livingston v. State, 565 So.2d...