Donton v. State

• Decision Date: 08 January 2009
• Docket Number: No. 1D07-3629.,1D07-3629.
• Citation: 1 So.3d 1092
• Parties: Lee DONTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

1 So.3d 1092

Lee DONTON, Appellant, v. STATE of Florida, Appellee.

No. 1D07-3629.

District Court of Appeal of Florida, First District.

January 8, 2009.

Daren L. Shippy, of Rose Sundstrom & Bentley, LLP, Tallahassee, for Appellant.

Bill McCollum, Attorney General; and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

A jury found Lee Donton (Appellant) guilty of one count of sexual battery upon a victim with a mental defect, a violation of section 794.011(4)(e), Florida Statutes (2005). In pertinent part, the second amended information charged Appellant with the commission of this crime upon a person (with a mental defect) 12 years of age or older, by penile union with, or penetration of, the victim's anus, sometime between May 24, 2005, and June 23, 2005, in the shower area of the Leon County Juvenile Detention Center. We affirm the judgment and sentence.

The Admission of Williams Rule Evidence

A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion. See Ray v. State, 755 So.2d 604, 610 (Fla.2000). "The same standard applies to rulings ... admitting collateral act evidence," subject to the rules of evidence. Zerbe v. State, 944 So.2d 1189, 1193 (Fla. 4th DCA 2006); Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). The first issue on appeal is whether the trial court abused its discretion in admitting certain so-called Williams Rule collateral-crime evidence. See § 90.404(2)(a), Fla. Stat. (2005); Williams v. State, 110 So.2d 654 (Fla. 1959). The State filed timely notice of intent to use evidence of Appellant's prior acts, and in a pretrial motion in limine, Appellant sought to exclude this Williams Rule evidence.

At the May 2006 hearing on the motion, the trial court heard testimony from a mother (C.D.) that, in June 2004, Appellant's grandmother had babysat for the witness' young son (L.S.) and young daughter (P.K.). On June 23, 2004, the mother left her children at the babysitter's residence around 4:00 a.m. The mother testified that after she picked up the children after returning from work that afternoon, her daughter complained (while climbing the stairs to the family residence) that her "cuckoo" (which was her name for her vagina) was hurting. The daughter told her mother than "Lee-Lee" (her nickname for Appellant) had hurt her by licking her "cuckoo" and touching it with his hand. When the mother reported this information to the babysitter and to Appellant, he denied it. At some point, the mother's son disclosed that he had observed Appellant committing the sexual misconduct upon the little girl, his sister. Before that incident, Appellant had been like a big brother to these two children, who had known Appellant all their lives. So far as their mother knew, this was the first time Appellant had been alone in his grandmother's residence with the children, while she left the children sleeping during her errand into town. This incident involving Appellant and P.K. was handled in juvenile court, where Appellant entered a plea.

At the evidentiary hearing, 5-year-old P.K. testified that she understood the difference between the truth and a lie. She described the 2004 incident in the babysitter's home when she and her brother were asleep in the bed. The babysitter left the house and did not want to disturb P.K. and her brother. As L.S. slept, P.K. woke up and saw Appellant in the bedroom. Because she had wetted herself, P.K. asked Appellant to leave the room so that she could change into other panties, but Appellant refused to do so. After P.K. got under the covers to change her panties, Appellant pulled down her panties and licked her "cuckoo," her private area. When the children returned home, P.K.'s "cuckoo" hurt "real bad" as she climbed the steps, and she told her mother what Appellant had done.

P.K.'s brother, L.S., testified at the hearing that he knew the difference between the truth and a lie. He recalled the 2004 incident when he and his sister were sleeping in the babysitter's bedroom while the babysitter took another child somewhere else. As L.S. returned to the bedroom after using the bathroom, he saw "Lee-Lee" going into the bedroom. He observed Appellant using his fingers to "open" P.K. and lick her private area. During the incident, P.K. sat on the bed as Appellant kneeled on the floor. Because he had seen what happened, L.S. ran back to the bathroom. He did not know whether Appellant saw him. Later, L.S. told his mother what he had observed.

Jo Ellen Brown, an FDLE crime lab analyst, testified at the hearing that she had received a sexual assault kit that containing vaginal swabs and a vaginal smear, a red T-shirt, and red shorts, as well as buccal swabs from Appellant. Amylase, a component of saliva, was found on the vaginal swabs and on the panties. The DNA profile showed the amylase was not the victim's. Some of the DNA came from a male, and some came from the female victim. Brown was able to develop a profile of a foreign allele or gene at four of the thirteen loci (markers) tested, and of these, Appellant was a possible donor. Appellant is African-American. Brown testified that the frequency of the occurrence of that profile in unrelated individuals is 1 in 3,500 for Caucasians; 1 in 740 for African-Americans; and 1 in 1,700 for Southeastern Hispanics. Brown testified that the foreign alleles at four of the loci matched Appellant and could not exclude him.

Arguing against the admission of this "prior act" evidence, defense counsel focused on the dissimilarities between the 2004 female child molestation (where the victim was three years old) and the charged 2005 crime involving penile union with, or penetration of, the anus of a male teenager, R.M. Defense counsel asserted that even if the court found this "other crime" evidence relevant, it should be excluded because the danger of unfair prejudice substantially outweighed its probative value, and the challenged evidence could become a feature of the trial. The defense contended that, because the mentally defective victim of the charged offense would not be able to testify, the admission of the Williams Rule evidence would prompt the jury to substitute the prior victim for the current victim. Counsel argued that any involvement Appellant had with the mentally defective victim in the charged offense arose because the juvenile detention staff had ordered Appellant to assist in the unpleasant aspects of the 300-pound-victim's care and personal hygiene, contrary to the formal policies at the juvenile detention facility.

On the other hand, the State argued that the Williams Rule evidence is relevant to prove opportunity, motive, and intent, in that Appellant showed a pattern of insinuating himself into the role of caretaker and then seizing the opportunity to molest the victim sexually because the victim would be unable or unlikely to report the inappropriate sexual conduct. See § 90.404(2)(a), Fla. Stat. (2005). Appellant was left alone with two very young children at his grandmother's residence in 2004 while she ran errands. A year later, at the juvenile detention center, Appellant repeatedly volunteered to change R.M.'s diapers and to bathe him. The court heard argument that the State could select and schedule its witnesses in such a way that the evidence of the prior child molestation would not become an inflammatory feature of the trial. The court delayed the ultimate ruling on admissibility and ordered the attorneys not to mention the Williams Rule evidence during jury selection and opening statements without a showing of good cause.

Section 90.404(2)(a), Florida Statutes (2005), states:

(2) OTHER CRIMES, WRONGS, OR ACTS.—

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Section 90.404(2)(b)1., Florida Statutes (2005), states:

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

In Williams, the Supreme Court of Florida set forth the general rule of admissibility of evidence of a collateral crime, stating that "relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevance. The test of inadmissibility is lack of relevancy." 110 So.2d at 659-60. These principles are memorialized in the Florida Evidence Code. In the aftermath of Williams, the Supreme Court of Florida has stated that "the relevance of collateral crime evidence is often a function of similarity." McLean v. State, 934 So.2d 1248, 1255 (Fla.2006); see Bryan v. State, 533 So.2d 744, 746 (Fla.1988). Before Williams Rule evidence is admitted, the trial court must find that the State has presented clear and convincing evidence that the defendant committed the collateral acts. See McLean, 934 So.2d at 1256, 1262. The record supports the trial court's conclusion that the State's evidence presented at the hearing met this requirement.

It is evident that where the collateral evidence involves a sexual battery committed upon a child, and the perpetrator is a family member or close family friend or someone else in a "familial relationship" or setting with the victim, "a relaxed standard of admissibility" of the collateral-crime evidence applies. See McLean, 934 So.2d at 1257; Heuring v. State, 513 So.2d 122, 124 (Fla.1987); Triplett v. State, 947 So.2d 702, 703 (Fla. 5th DCA 2007). In such instances, as in the case at bar, the victim...