Calloway v. State, BR-104

• Court: Florida District Court of Appeals
• Writing for the Court: NIMMONS; SMITH, C.J., and ERVIN
• Citation: Calloway v. State, 520 So.2d 665, 13 Fla. L. Weekly 528 (Fla. App. 1988)
• Decision Date: 24 February 1988
• Docket Number: No. BR-104,BR-104
• Parties: 13 Fla. L. Weekly 528 Jimmy Birl CALLOWAY, Appellant, v. STATE of Florida, Appellee.

Page 665

520 So.2d 665

13 Fla. L. Weekly 528

Jimmy Birl CALLOWAY, Appellant, v. STATE of Florida, Appellee.

No. BR-104.

District Court of Appeal of Florida First District.

Feb. 24, 1988.

Michael E. Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Bradford Thomas, Asst. Atty. Gen., Tallahassee, for appellee.

NIMMONS, Judge.

The defendant was convicted of two counts of sexual battery perpetrated on his stepdaughter while he was in a position of familial, custodial, or official authority. The defendant raises seven issues on appeal, three of which merit discussion. We affirm.

In the first issue, defendant contends that the trial court erred in failing to require the state to narrow the period of time within which the defendant was charged with sexually battering his stepdaughter. The first count covered the period between October 1, 1984 and May 31, 1985. The second count covered the period between September 30, 1982 and September 30, 1984.

Three months prior to trial, a hearing was held on the defendant's motion for statement of particulars in which the defense sought more definite dates as to the offenses charged. The state explained to the court that the defendant had sexually abused his stepchild over a period of years and that the state had been unable to obtain any more specific time periods from the child victim. Defense counsel said that he had been unable to obtain specific dates from the victim via her deposition. The prosecutor said that he would "go back and try to talk to the victim some more."

At the hearing, the trial court required the state to make reasonable efforts to narrow the time periods. The judge stated:

All right. I'll tell you what I'm going to ask you to do. The Child Protection Team of which you spoke, I'm going to ask that you ask the people on the Child Protection Team to see if they can't at least in connection with some known dates, for instance birthdays, to do the best they can. I agree with you. It is not the easiest thing in the world when you have got a small child like that. But see if they can't pin some times down just a little bit better because I see we have got here something going back to approximately 1982.

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But I do want to at least try to get something a little bit pinned down in terms of specific dates that can be used as points of reference for her. You know, school is out in June. Was it while vacation time? Was it while school was still going on? Things like that. Anything to help pin it down a little bit.

All right. That's all I'm going to require at this time. Do the best you can. I'll be available, Mr. Minerva [defense counsel]. Do what you can, Edgar [prosecutor].

The only further activity which appears in the record regarding the above issue is a statement of particulars filed a month later by the state. As to count one, the statement of particulars stated the same inclusive dates as the information while the time range of count two was narrowed by 2 1/2 months. No objection was raised by the defense directed to the statement of particulars.

It would be inappropriate for us to assume that it would have been futile for the defendant to have attacked the adequacy of the statement of particulars. It is obvious from the judge's above comments that he was sympathetic with the defendant's efforts seeking a narrowing of the time frames. Indeed, the gist of his final remark was an invitation to defense counsel to seek relief from the court should he be dissatisfied with the state's response to the court's directives. After the filing of the statement of particulars, several unrelated motions were heard three weeks prior to the trial, but nothing was said which could even remotely be construed as an attack upon the statement of particulars. We hold that the defendant has thus waived any right to complain on appeal concerning the dates set forth in the statement of particulars.

The defendant also claims that the trial court erred in receiving, over objection, evidence of collateral crimes involving two other girls during the time period covered by the information. Both girls are roughly the same age as the victim. ¹

Kim, a friend of the victim, testified that she spent the night with the victim at the defendant's home. She said that the defendant came in the victim's bedroom where Kim was situated, pushed her on the bed and commenced tickling her and touching her breasts. Kim pushed him off of her. Apparently he ceased this activity when others entered the room after she pushed him off. On a later occasion when the victim and Kim were together, Kim asked the victim if the defendant had ever tried to do anything like that to her (the victim). The victim told Kim that the defendant had done the same thing to her and had made her (the victim) engage in sexual acts. ²

On another occasion, a girl named Shan, the victim's aunt, ³ was spending the night at the defendant's home and was in bed with the victim when the defendant entered the bedroom and touched Shan's breasts and vaginal area. Shan pushed him away and told him to leave her alone. The defendant did the same thing to Shan the next night, again while she was in the victim's bed. Shan testified that on the following day she told the victim what the defendant had done, and she asked the victim if the defendant had ever done that to her. According to Shan, the victim responded in the affirmative. ⁴

Recently, the Florida Supreme Court addressed the problem of Williams Rule ⁵ evidence in sexual battery cases involving the familial setting. In Heuring v. State, 513 So.2d 122 (Fla.1987), the court stated:

Cases involving sexual battery committed within the familial context present special problems. The victim knows the perpetrator,...