Duncan v. State, 72--489
| Decision Date | 01 March 1974 |
| Docket Number | No. 72--489,72--489 |
| Citation | 291 So.2d 241 |
| Parties | Ira G. DUNCAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry R. Hussey, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and David Luther Woodward, Asst. Atty. Gen., Tampa, for appellee.
Appellant, a 64 year old man, was tried and convicted of committing a sexual assault upon his 13 year old adopted daughter by fondling her in a certain lewd and lascivious manner as proscribed by § 800.04, F.S.1971, F.S.A. We affirm.
The only point meriting discussion is that relating to so-called 'Williams Rule' 1 testimony, viz., evidence of other similar offenses committed by appellant. During the state's case in chief the prosecution presented over objection the testimony of two other minor girls under the age of fourteen who testified that appellant had committed similar acts of fondling upon them on occasions other than that contemplated in the charge herein. If this were all there was to the case we think there was a clear reversible violation of the Williams rule since the similar offenses showed nothing more than propensity. There's more, however, as will be seen.
First, on the point, we allude to the state's contention that such similar crime evidence was admissible in its case in chief to show a 'continuing course of conduct,' a 'plan or scheme' or a 'modus operandi.' It's in error. This position demonstrates, we think, that which we perceive to be a prevalent misunderstanding on the part of some trial judges and prosecutors of the discipline of Williams, supra. It needs clarification.
To begin with, neither a 'continuing course of conduct,' a 'plan or scheme' nor a 'modus operandi' is an end In and of itself which may be proved in a criminal case. If they were, then by whatever reason therefor so would propensity be admissible. Evidence relating to similar offense is admissible Only when they, or any of them, are Relevant in a given case to one of the essential or material issues framed within the charge instantly being tried. 2 If, for example, an embezzler has devised a complicated scheme, plan, artifice or device ultimately to accomplish the conversion of entrusted funds, his scheme or plan, although it may consist of a series of independent party thefts, alteration of records, forgeries or other separate offenses, is nevertheless admissible to show intent or purpose to commit the grand offense charged. 3 Similarly, if the identity of the defendant in a given case is a material fact in issue, as it is in most cases, and the offense charged was committed in a particularly unusual or unique manner (modus operandi), evidence of another offense committed in the same unique or unusual manner, and to which the defendant can be positively connected, is admissible to establish or corroborate the identity of the defendant in the case being tried. Mere similarity of offenses, without regard to the singular manner of their perpetration, is not enough.
Additionally, it is important to emphasize that if the Only logical effect of the evidence of other similar crimes committed by the defendant is essentially to show propensity or avocation toward the commission of such offenses, Williams, supra, condemns such evidence as being in reality an inappropriate attack on the character of the accused at a point in the proceeding when his character has not as yet been placed in issue. 4 Understandably, of course, the prosecution is always anxious to discover relevancy of such testimony, for indeed propensity is always shown thereby. But, again, if that is the Only thing essentially shown it's anathema; 5 and so it was here.
Nevertheless, the sole underlying basis of appellant's plea of not guilty herein was that he was impotent and therefore most...
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Padgett v. State, 88-1786
...368 So.2d 1373 (Fla.1979); Banks v. State, 298 So.2d 543 (Fla. 1st DCA 1974), cert. denied, 308 So.2d 538 (Fla.1975); Duncan v. State, 291 So.2d 241 (Fla. 2d DCA), cert. denied, 297 So.2d 833 (Fla.1974); Harris v. State, 183 So.2d 291 (Fla. 2d DCA 1966); Hooper v. State, 115 So.2d 769 (Fla.......
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Sias v. State, 80-1263
...crime victim, that he committed the crime charged. See Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974). Accord, Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974); Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974). Thus, in Davis v. State, 376 So.2d 1198 (Fla. 2d DCA 1979), the facts tha......
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Engdall v. State, 75--72
...292 So.2d 395. Manifestly, the intended use of the 'collateral crime' evidence must be Relevant to the crime charged. See Duncan v. State, Fla.App.1974, 291 So.2d 241. Introduction of 'collateral crime' evidence is Not for the purpose of showing that the accused has committed Another crime ......
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Diaz v. State
...was stated:The state argues that there was more than 'a mere general similarity' between the two crimes, as required by Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974). Those similarities are said to be (1) the assailant in both crimes admonished his victims not to scream or make any nois......
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"A dangerous bend in an ancient road": the use of similar fact evidence for corroboration.
...MISCONDUCT [sections] 2:18. (6) People v. Thompson, 611 P. 2d 883, 889 (Cal. 1988) (emphasis in original); see also Duncan v. State, 291 So. 2d 241, 243 (Fla. 2d D.C.A. 1974); Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 ARIZ. L.R......