Carlyle v. State
| Decision Date | 29 November 2006 |
| Docket Number | No. 2D04-4412.,2D04-4412. |
| Citation | 945 So.2d 540 |
| Parties | Etavius CARLYLE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.
Etavius Carlyle appeals his convictions for attempted second-degree murder and four counts of sexual battery with a deadly weapon or force causing injury. Carlyle contends that the trial court erred in not acquitting him on three of the sexual battery counts because only one act occurred and that the trial court abused its discretion in two evidentiary rulings. We affirm.
The State's main witness at trial, the twenty-eight-year-old victim, testified that on August 6, 2003, she asked her former boyfriend to take her to a certain church because she wanted to attend an AA meeting. Upon arrival, it was determined that there was no AA meeting—thus revealing the victim's true motive: i.e., to be in an area where she could obtain drugs. The two argued over the victim's plan to find and use drugs. The victim got out of the former boyfriend's car and walked away.
Soon thereafter, the victim entered a vehicle driven by Edward Cook, who had pulled over to assist and offer her a ride.1 The former boyfriend, having followed the victim, approached Cook, who was wearing a security guard outfit, and informed him that the victim had just been released from a hospital following a drug overdose. The former boyfriend said, Cook replied, Then, the victim and Cook drove off.
Cook told the victim that his name was "Shane." He had a bottle of vodka that he shared with the victim. The victim testified that she had $20 on her and that she was looking to get high. Cook told her that he knew where they could get crack cocaine, which is what she wanted. They went to a house already occupied by several other people. One of the men took Cook and the victim to a second house where they purchased drugs. The three returned to the first house and went inside to get high.
Back at the first house, the liquor and the recently obtained crack cocaine were shared and consumed by the victim and four men. The victim testified that there was no discussion with Cook regarding an exchange of sex for money or drugs. At some point, Cook introduced the victim to "Tay," whom the victim later identified as Carlyle.
When the drugs were gone, Cook, Carlyle, and the victim left in Cook's truck to buy more vodka. They drank the vodka and discussed where they would go to party. Cook produced more crack cocaine from under the seat of his truck, which the three shared. The victim testified that, at this point, she was not ready to go home. She also testified that there was no agreement for sex between her and either man, but both men were making "kind of rude comments." Cook said that he knew a guy in Clearwater who had drugs, and the trio headed in that direction.
According to the victim's testimony, as she, Cook, and Carlyle were driving toward Clearwater, Cook pulled off the causeway. Once the truck pulled off the road, the two men violently beat and sexually battered the victim. Eventually, the victim was able to get away, and she crawled, naked, onto the highway. From there, she saw Cook's vehicle speed off. Police found her and had her transported by ambulance to the hospital. Cervical and vaginal swabs taken from the victim contained semen that matched Carlyle's DNA profile.
On cross-examination, the trial court sustained objections when the victim was asked by the defense counsel whether it was unusual for her to get into a car with a strange man and whether it was something she had done before. The victim testified that the word "party" meant doing drugs and nothing else. When asked if there was any talk about going into the back bedroom of the first house, she stated:
A. There was a joke that it was the VIP room.
Q. What did that mean to you?
A. I know what VIP stands for. I just kind of chuckled it off.
Q. What did it mean to you?
A. I said I don't know about that. And then the conversation moved on into well where are we going to go.
Q. What does the VIP room mean to you?
A. Well, I am not accustomed to hanging out in someone's bedroom in someone's house that I don't know who they are. I was not agreeable to that.
The victim admitted that she had two prior felony convictions.
Carlyle presented a different version of the events in his trial testimony. He testified that he met the victim, through Cook, at the first house. When he entered the house, the occupants, including Cook and the victim, were "sitting there getting high." Carlyle testified that the victim told him that she wanted to party. According to Carlyle, Later, after he came out of the bedroom, Carlyle observed an argument between Cook and the victim. Carlyle then left the house and went to the farmer's market. He testified that he did not know what happened to either Cook or the victim. He admitted that he had seven prior felony convictions.
Carlyle first argues on appeal that the trial court erred in not granting a judgment of acquittal for three of the four sexual battery counts based on his assertion that the offenses arose from a single criminal episode. We reject this argument because the victim testified to four acts of sexual battery that were distinct and temporally separated. The victim described being forced to perform oral sex, followed by vaginal sex, followed by another act of oral sex, and, finally, anal sex. Because there was time between each penetration to reflect and form a new criminal intent, four convictions were appropriate. See Schwenn v. State, 898 So.2d 1130 (Fla. 4th DCA 2005); Saavedra v. State, 576 So.2d 953 (Fla. 1st DCA 1991), aff'd, 622 So.2d 952 (Fla.1993).
Carlyle next argues that the trial court erred in excluding evidence of the victim's prior sexual conduct. Carlyle filed a motion seeking permission to introduce evidence of the victim's prior arrest for prostitution and her admission that she had acted as a prostitute in the past. Specifically, in a pretrial deposition the victim admitted having been arrested for prostitution by an undercover officer at an adult club and admitted engaging in prostitution on other occasions when she worked as an escort. She also admitted that it was not unusual for her to get into cars with strangers for the purpose of partying, but the partying never involved sex. The defense argued that these prior activities should be admitted to demonstrate that the victim consented to have sex with Carlyle.
The defense motion also sought to admit evidence that the victim had recently accused another person of sexual battery. The defense presented the trial court with a "Sexual Battery History & Physical Examination" report prepared by a crisis center nurse in June 2003 in which the victim reported being raped by a man she met at a hotel where she was staying temporarily. The report stated her account of the incident as follows:
Woke up this AM & he was there. This is a hotel room. He had beer bottle in her vagina. Said he had sex with her during the night. Got up took a shower. When she got out man was gone & purse gone. Just met at hotel. Staying at hotel here temporarily. Earlier he approached her at laundry room. Asking directions. Had bottle of rum. Had one drink at pool. Then went to bar. He left and she doesn't remember anything until she woke up this AM.
The report also stated that the victim had bruises on her arms, legs, and breasts and bite marks on her buttocks. The defense argued this latter episode was admissible to establish a pattern that the victim engaged in sexual activity with strangers and "risqué" sex.
The trial court denied the defense motion based on the court's finding that Carlyle had not established a sufficient pattern between this case and the prior specific acts of the victim. The court stated that just showing that the victim exchanged sex for money in the past was not enough similarity to remove the rule of exclusion required by the rape shield law—"Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011." § 794.022(2), Fla. Stat. (2004). We conclude that the trial court did not abuse its discretion in excluding this evidence.
The trial court's ruling concerning the inadmissibility of the victim's prior activity as a prostitute is reviewed for an abuse of discretion. See Docekal v. State, 929 So.2d 1139, 1142 (Fla. 5th DCA 2006). Here, there were insufficient similar facts developed to show a pattern of conduct mandating admissibility of the victim's prior prostitution/escort employment. "It is within the sound discretion of the trial judge to determine the admissibility of evidence, and the trial judge's ruling on such an issue will not be disturbed on appeal absent a showing of an abuse of discretion." Penalver v. State, 926 So.2d 1118, 1132 (Fla.2006). The record supports the trial court's ruling.
Florida's rape shield law, section 794.022(2), further provides that
evidence [of prior sexual activity with others] may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.
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