Coler v. State, 54250

• Decision Date: 13 May 1982
• Docket Number: No. 54250,54250
• Citation: 418 So.2d 238
• Parties: Daniel Lowell COLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 238

418 So.2d 238

Daniel Lowell COLER, Appellant, v. STATE of Florida, Appellee.

No. 54250.

Supreme Court of Florida.

May 13, 1982.

Rehearing Denied Aug. 31, 1982.

Tyrie A. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, Margaret Good, Louis G. Carres and Thomas S. Keith, Asst. Public Defenders, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Doris E. Jenkins, Gregory C. Smith and A. Sidney Johnston, Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

Coler was convicted and sentenced to death on three counts of rape of a child under eleven years and one count of sexual battery of a child eleven years or younger. ¹ Each count charged Coler with a separate episode of sexual battery on his daughter during the years 1972 through 1977. At the outset we vacate the death sentence since we have held in Buford v. State, 403 So.2d 943 (Fla.1981), that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and therefore forbidden by the eighth amendment as cruel and unusual punishment. Further we find that although there is sufficient evidence in the record, if believed, to support a conviction, we find that Coler was convicted in part by the use of irrelevant, unfairly prejudicial testimony which deprived him of a fair trial. We therefore reverse his convictions and order a new trial.

After Coler and his wife were divorced early in 1972, the three Coler children lived half the time with each parent. In July 1972 Coler obtained exclusive custody of the children, and they lived with him until late in 1974 when their mother regained custody. Coler was granted weekend visitation privileges with the children. In March 1977 the children complained that they did not want to visit their father. When pressed by their mother for a reason, one of the children indicated that their father had been sexually abusing the daughter. Following an investigation by the Division of Family Services, including a gynecological examination, the state attorney's office sought and received an indictment.

In addition to the testimony of the children concerning the four specific incidents of sexual battery, the state introduced testimony from the children, over objection, of other examples of Coler's deviant sexual behavior. They testified that Coler had the children watch from the doorway as he fondled a woman, that he told them that they or the neighborhood children could use his bed for sexual intercourse, that he told one of his sons to have sex with three women he brought home, and that on a visit to Michigan he made the children eat a cucumber which, just prior thereto, he had inserted into the daughter's rectum. None of this testimony was relevant to prove a material issue of the indictment. It served only to prove the defendant's bad character and was obviously prejudicial.

For a discussion of evidence of a collateral nature we return to the fine opinion of Justice Thornal in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). That case states the general rule that similar fact evidence is admissible if relevant to a fact in issue even though it also points to the commission of a separate crime. Such evidence is inadmissible, however, if its sole relevancy is to establish bad character on the part of the accused. The prosecution is not permitted to present evidence simply to show a defendant's bad character or to show a disposition toward the commission of the crime charged. If relevant, the bad character exception may have to yield if incidental to a relevant issue, but, when there is no relevance except bad character, it is error to allow such evidence.

To be relevant, evidence must prove or tend to prove a fact in issue. The state argues that the objected-to evidence proves Coler's state of mind. ² Coler's state of mind, however, was not an issue. State of mind is not a material fact in a sexual battery charge, nor is intent an issue. Cf. Askew v. State, 118 So.2d 219 (Fla.1960) (specific intent is not the essence of the crime of rape). In this instance the state overstepped the threshold of responsible prosecution with the introduction of this loathsome and despicable testimony. We cannot say it did not affect the jury's verdict.

Coler raises other issues, but most of these alleged errors are unlikely to reoccur in a new trial, and we decline to address them. In any event we are unable to discern other clear reversible error on the issue of guilt.

The convictions and sentences are vacated, and Coler is granted a new trial.

It is so ordered.

BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.

ADKINS, J., dissents with an opinion with which SUNDBERG, C. J., concurs.

ALDERMAN, J., dissents with an opinion with which ADKINS, J., concurs.

ADKINS, Justice, dissenting.

I dissent.

It is true that the evidence of other sexual offenses, just as any evidence tending to prove guilt, may serve to prove defendant's bad character and be prejudicial. On the other hand, the evidence was relevant to show a state of mind or a pattern of criminality.

Ross v. State, 112 So.2d 69 (Fla.3d DCA 1959), was a prosecution for assault, in a lewd and lascivious manner on a girl under fourteen years of age. In affirming the conviction, the court said:

We hold against the contentions of appellant regarding the testimony of the other girl who at the time or times involved was 10 or 11 years old. Testimony of the latter to the effect that appellant had fondled her in a lewd and lascivious manner was presented by the state to show the character of the deed as to motive, intent and absence of mistake, for which it was relevant and admissible, under Talley v. State, 160 Fla. 593, 36 So.2d 201; and Williams v. State, Fla.1959, 110 So.2d 654.

Id. at 70.

While the record may permit conclusion that the earlier occasion of fondling the other girl was as much as two years before the date of the offense involved here, counsel for the defendant on cross examining the girl established that the defendant engaged in such conduct with her on a continuing series of occasions, the last of which was said by her to have taken place as late as November of 1957, approximately six months prior to the offense charged here.

Id. at 70-71.

The defendant in Summit v. State, 285 So.2d 670 (Fla.3d DCA 1973), was convicted and sentenced for lewd and lascivious conduct upon a female child under the age of fourteen years. On appeal defendant contended that the trial court committed error in admitting into evidence testimony concerning prior sexual offenses with the victim and the victim's sister. In affirming the conviction the court said:

[W]e find the testimony of the victim and her sister regarding prior similar conduct on the part of the defendant with them to show the character of the deed as to motive and intent to be relevant and admissible. Therefore, we hold the trial court to be correct in denying defendant's motion for mistrial on the grounds that the above testimony was admitted improperly.

Id. at 670 (emphasis supplied).

Gossett v. State, 191 So.2d 281 (Fla.2d DCA 1966), was an appeal by a husband and wife from a conviction of assault and rape upon a female under the age of fourteen years. In affirming the conviction the court said:

The only possible error here is whether it was proper for the trial court to permit the introduction of evidence of similar illicit acts, imposed by the appellants on the children, that occurred prior to the time of the act in question.

Id. at 282.

We conclude that the trial judge had authority under Williams v. State, ... [110 So.2d 654 (1959) ], and Talley v. State, ... [160 Fla. 593, 36 So.2d 201 (Fla.1948) ], to permit the evidence of former acts of the two defendants in connection with the children involved in the instant case to show a pattern of criminality that makes the prior acts relevant to the commission of the acts in question.

Id. at 283 (emphasis supplied).

Cantrell v. State, 193 So.2d 444 (Fla.2d DCA 1966), was a prosecution for the commission of a lewd and lascivious act on an eight-year-old female child. The defendant was convicted and on appeal claimed error in the admissibility of evidence of similar acts committed by defendant with other female children. In affirming the conviction the court said:

During the course of the trial, the state was allowed to present the testimony of two other female children to the jury. These two witnesses testified essentially that defendant had on previous occasions improperly fondled them while in the swimming pool. Because of the age of these children, we will not repeat their exact testimony. Suffice it to say that it clearly and unequivocally established a course of conduct in the commission of the crime charged in the instant case.

Id. at 445 (emphasis supplied).

The defendant in Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976), was convicted of the rape and murder of a thirteen-year-old female. The trial judge admitted testimony that defendant and another man attempted to engage in anal intercourse in the hour preceding the rape and murder of the victim. In affirming the conviction this Court said:

[W]e hold that the circumstances surrounding the earlier unfulfilled sexual act were relevant to establish the state of mind of appellant and the motive for the assault on the victim occurring only a short time thereafter. Such evidence also was relevant to rebut alibi testimony. The trial court did not err in admitting such testimony.

Id. at 438 (emphasis supplied).

In Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), review denied, 392 So.2d 1373 (1981), the defendant was convicted of committing a lewd and lascivious act on his five-year-old daughter and he appealed. At trial, the victim and her brother, who was present at the time of the commission of the offense charged,...