Cotita v. State, II-224

• Decision Date: 22 February 1980
• Docket Number: No. II-224,II-224
• Citation: 381 So.2d 1146
• Parties: Phillip Martin COTITA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1146

381 So.2d 1146

Phillip Martin COTITA, Appellant, v. STATE of Florida, Appellee.

No. II-224.

District Court of Appeal of Florida, First District.

Feb. 22, 1980.

Rehearing Denied April 16, 1980.

John Peter Kirtz, Jr., and Owen E. Adams, Sr., Pensacola, for appellant.

Jim Smith, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.

BOOTH, Judge.

This cause is before us on appeal from the final judgment of the Circuit Court, Escambia County, entered on a jury verdict finding defendant guilty of committing a lewd or lascivious act in violation of Florida Statute § 800.04 ¹ and sentencing him to fifteen years imprisonment. The victim of the offense was defendant's daughter, age five. The sole issue presented is whether the trial court erred in admitting evidence of defendant's commission of similar offenses. The test of admissibility of such evidence is the rule of Williams v. State, (The Williams Case) ² that evidence is admissible "If found to be relevant for any purpose save that of showing bad character or propensity" of the accused and, evidence is relevant "if it bears a certain relation to the crime charged to the extent that it is relevant to a fact in issue . . ." ³ Defendant contends that the evidence here was only relevant to show his bad character or propensity and should not have been admitted.

The testimony showed that defendant, his wife, a son age ten and a daughter age five, resided in a mobile home in a trailer park owned and managed by defendant's mother and father. Also residing in the trailer park in a nearby mobile home was the Bolton family who had two daughters, ages nine and eleven. The Bolton girls visited in defendant's trailer and watched television with the defendant, the victim and her brother.

At trial, the victim and her brother, who was present at the time of the commission of the offense charged, testified that appellant committed the offense on the day in question. Appellant's wife testified and, though not a witness to the commission of the offense, corroborated her children's testimony as to the events occurring prior to and immediately thereafter. In the course of their testimony, the victim's mother, referring to the illicit sex act committed on the daughter, used the word "again" and the victim's brother testified that he had seen it "before." ⁴ On appeal, ⁵ defendant contends there was error in admitting the testimony which referred, however briefly, to prior similar conduct of the accused with the victim.

Over defendant's objection, the State presented the testimony of Lisa Diane Bolton, a nine-year-old child, and her mother, Carolyn Bolton. The neighborhood child testified that defendant had committed the same type of sex act on her and her young sister in a shed in the trailer park and also in defendant's trailer within the preceding year.

Mrs. Bolton, mother of the two girls, testified that she became aware of several incidents between defendant and her children; that she reported the incidents to defendant's wife and to his mother; that defendant's mother first asked her to move out of the trailer park and then offered to give her free rent if she would agree not to press charges against defendant. Defendant's mother denied negotiating with the neighbor to prevent charges being filed against her son but admitted that Mrs. Bolton told her "something . . . about Phillip's bothering the children" and admitted a "gift" of one month's rent. ⁶

Defendant presented an alibi defense supported primarily by the testimony of his mother that defendant and his family had been in her home on the day and at the time of the commission of the offense charged. The testimony of defendant's mother, the most lengthy of any witness, was that her son's children were controlled by his wife and that she had overheard them being coached to testify against him. The testimony of defendant's mother, and to some extent that of his father, was directly in conflict with the testimony of the defendant's wife and children as to the alibi defense. The jury was required to resolve the conflict. Mrs. Bolton's testimony mitigated against crediting the testimony of defendant's mother both as to the alibi and as to the "coaching" charge. The Bolton incident indicated the lengths to which appellant's mother would go to protect her son against charges similar to the one on trial.

The evidence here was relevant to the alibi defense and in addition to establish "a pattern of criminality," a category of admissibility recognized by the Florida Supreme Court in The Williams Case ⁷ and in Ashley v. State, 265 So.2d 685, 693 (Fla.1972). Evidence of prior illicit sex acts with the same children involved in the assault and rape prosecution was held properly admitted "to show a pattern of criminality" in Gossett v. State, 191 So.2d 281, 283 (Fla. 2nd DCA 1966), the court holding (191 So.2d at 283) "We conclude that the trial judge had authority under Williams v. State, . . . and Talley v. State, ⁸ 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 act relevant to the commission of the acts in question."

Closely related is Cantrell v. State, 193 So.2d 444 (Fla. 2nd DCA 1966), a prosecution for lewd and lascivious assault on an eight-year-old girl. Therein, evidence was admitted that defendant had previously committed similar acts against two other little girls who, like the victim, had been guests at defendant's backyard swimming pool. The court held the evidence admissible because it "established a course of conduct in the commission of the crime charged in the instant case." (193 So.2d 445)

Florida courts have stated other bases of relevancy in similar cases. In Summit v. State, 285 So.2d 670 (Fla. 3rd DCA 1973), evidence of prior similar lewd and lascivious acts against the victim of the offense charged and against her sister was held properly admitted, the court holding (285 So.2d at 670):

"(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."

In Ross v. State, 112 So.2d 69 (Fla. 3rd DCA 1959), the court affirmed a conviction of lewd and lascivious assault against an eleven-year-old girl, and the admissibility of testimony that defendant had committed a similar offense against a similar victim, holding (112 So.2d at 70):

"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 . . . ."

In Andrews v. State, 172 So.2d 505 (Fla. 1st DCA 1965), evidence that defendant had committed similar illicit sex acts against one other than the victim of the offense charged was held admissible, this court holding (172 So.2d at 507):

"The testimony concerning the subsequent offense is to the effect that it was committed against a person in an age group comparable to that of the victim named in the charge, at the same place, and under circumstances almost identical to those connected with the offense charged. The similar fact evidence in this cause was clearly relevant in its bearing on defendant's identity, intent, plan and design, as well as to show lack of inadvertence, and it meets the test of admissibility."

More recently, in Owens v. State, 361 So.2d 224 (Fla. 1st DCA 1978), this court affirmed a conviction under the same statute here involved for a lewd and lascivious assault by a father on his stepdaughter, a child under the age of fourteen years. In that case, the trial court admitted testimony of the stepdaughter and her mother as to a similar incident of fondling which had occurred six days before the offense charged. This court held (361 So.2d at 225):

"The testimony objected to tended to prove motive, 'which inquires into the accused's reason for acting as charged and suggests that because he had a specific reason to commit the offense he did so.' . . . The trial judge acted within sound discretion in deciding that the legitimate purpose of the evidence outweighed its inherent prejudice . . ." (citations omitted)

Here, we note a close similarity in victims, locale, sex act and a similar parental or custodial relationship between the accused and the victims. We find no merit in defendant's contention that The Williams Rule precludes collateral crime or similar fact evidence except where the defendant's identity is at issue. In The Williams Case itself, identity was not contested. There, the defendant took the stand, admitted sexual relations with the victim, but claimed consent and testified that the ice pick wound to the victim's chest was accidental. Evidence that six months earlier the defendant had been apprehended in connection with an aborted assault on another similar victim was held properly admissible, inter alia, "to meet the anticipated defense of consent."

The Williams Case holds that logic, common sense and "the infinite variety of human activities" ⁹ precludes a listing of all categories of relevancy. The Supreme Court in Williams disapproves prior opinions which required relevant evidence be fitted into some previously recognized exception in order to be admissible, stating (110 So.2d at 659):

"The objectionable feature of this approach is that seemingly the fundamental principle of logical relevancy is abandoned. In its place is substituted a search for an exception under which the evidence becomes admissible but which will be discovered only if out of the infinite variety of human activities a case has arisen in which some court has held it so."

...