Easterly v. State

• Decision Date: 24 November 2009
• Docket Number: No. 1D08-3802.,1D08-3802.
• Citation: 22 So.3d 807
• Parties: Ivan Waylen EASTERLY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

22 So.3d 807

Ivan Waylen EASTERLY, Appellant, v. STATE of Florida, Appellee.

No. 1D08-3802.

District Court of Appeal of Florida, First District.

November 24, 2009.

Brooke Elvington, Tampa, for Appellant.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

LEWIS, J.

Ivan Waylen Easterly, Appellant, seeks review of his conviction of engaging in sexual activity with a minor between the ages of twelve and eighteen while in a position of familial or custodial authority. He raises three issues: (1) whether the trial court abused its discretion in declining to dismiss the State's second amended information due to its refusal to narrow the timeframe of the charged offenses; (2) whether the trial court abused its discretion in admitting similar fact evidence; and (3) whether fundamental error occurred when the prosecutor argued, in the State's rebuttal closing argument, that the evidence had "torn away" the presumption of innocence. Finding no error, we affirm and write to explain our decision.

FACTS

The State filed an amended information charging Appellant with two crimes: engaging in sexual activity with a child twelve years of age or older but less than eighteen, while standing in a position of familial or custodial authority, in violation of section 794.011(8)(b), Florida Statutes (2004) (count one); and unlawful activity by a person twenty-four years of age or older with a person sixteen or seventeen years of age, in violation of section 794.05, Florida Statutes (2004) (count two). The time period alleged for the commission of both crimes was "on or about or between April 1, 2004, and June 30, 2004." The alleged victim was K.D., who was Appellant's stepdaughter and the mother of his biological child, according to the State's uncontested evidence.

Upon Appellant's motion, the trial court ordered the State to file a statement of particulars with as much detail as possible about the date, time, and location of the offenses. After the State failed to timely comply with the order, Appellant filed a motion to compel the State's compliance. In response, the State filed a second amended information, which contained essentially the same language as the amended information, except that it added an allegation that the offense listed in each count occurred "one or more times." Appellant, in turn, filed a motion to dismiss, arguing that the alleged offenses were not "continuing offenses" and that the changes in the second amended information had compounded the problem by making issues of time, date, and place more uncertain.

At a hearing on the motion, defense counsel argued that the State was required to narrow the timeframe because it knew of at least two separate dates when K.D. alleged Appellant sexually abused her. The prosecutor explained that Appellant had sexually abused K.D. on a regular basis, but that K.D. could recall only one or two specific incidents. The prosecutor further explained that K.D. had a clear memory of one incident in particular and that the State intended to elicit the details of that event at trial. Finally, the prosecutor argued that the State's difficulty in narrowing the timeframe resulted from the fact that, although it had conclusive evidence that K.D. had conceived a child by Appellant, there was no evidence that either of the specific incidents K.D. recalled was the one that led to the conception.

Defense counsel argued that the issue was not when K.D. became pregnant, but when she was sexually abused. Defense counsel pointed out that, in deposition, K.D. had specifically described an incident that occurred on May 1, 2004, and one that occurred on May 2, 2004. The court asked defense counsel if he was willing to stipulate to one of those incidents as the one that resulted in the pregnancy, and defense counsel responded that he was not required to do so. The trial court denied the motion to dismiss, opining that the State had narrowed the timeframe as much as possible.

The State had previously filed a Williams¹ rule notice, indicating that it intended to introduce evidence of five offenses that Appellant perpetrated against K.D. outside the timeframe alleged in the information. Two of these offenses occurred between February 1, 2001, and March 24, 2001; one occurred between March 25, 2001, and December 31, 2001; and two occurred between January 20, 2005, and March 19, 2005. The offenses varied in detail, from the fondling of K.D.'s breasts and vaginal area, to penile-vaginal penetration or union, to the penetration of or union with K.D.'s vagina by Appellant's tongue. One of the offenses included the use of force. The State alleged that three of these offenses occurred in the family home in the vicinity of Chiefland, Florida, and two occurred in the family home in the vicinity of Trenton, Florida.

Appellant filed a motion in limine, arguing that the proposed Williams rule evidence was improper because his identity was not at issue and the acts were not similar enough to one another. He also argued that, due to the number of incidents and the length of time they spanned, the proposed Williams rule evidence would become a feature of the trial.

After hearing oral arguments from both parties, the trial judge observed that based on arguments he had previously heard, it appeared that Appellant intended to argue that he was asleep when he impregnated K.D. and did not know what he was doing. The judge opined that if Appellant raised such a defense, the number of instances would "become relevant as to whether that was a reliable defense." The trial court also agreed with the State that the evidence was admissible to show absence of mistake, and accordingly, denied the motion in limine.

Prior to trial, Appellant requested a special jury instruction, which included his knowledge that he was committing the charged act as an element of the crime. The trial court denied the request, determining instead to use the standard instruction. The case proceeded to trial.

In the defense's opening statement, counsel conceded that K.D. was sixteen years old in April, May, and June of 2004 and that a DNA test established that her child's DNA matched Appellant's DNA. Defense counsel stated that Appellant had "no clue" how K.D. became pregnant with his child and that he could only speculate. Defense counsel alleged that "there was one event," that Appellant could not describe it, and that Appellant "was not the one [who] initiated it."

K.D. gave the following testimony. One night between April 1, 2004, and June 30, 2004, she was alone with Appellant in the family home in Trenton. The home was not air-conditioned, so K.D. went to lie down in the coolest room in the house, the one Appellant and her mother shared. K.D. later awoke to find Appellant under the covers with her, fondling her breasts and, later, her vagina. She tried to push Appellant off of her and to knee him, but he did not stop. Later in the encounter, Appellant "started performing penis-vaginal" intercourse. K.D. again tried to push Appellant off and to knee him, and Appellant held her by the shoulders, pushing her "more down onto the bed." During this encounter, Appellant's eyes were closed but would "open once in a while, basically quiver[ing] open and then close, like he was trying to pretend that he was asleep." Appellant had sexual intercourse with K.D. more than once between April 1, 2004, and June 30, 2004, but she could specifically recall only one incident that occurred during that timeframe.

K.D. testified that she learned she was pregnant in June of 2004 and that her child was born on January 19, 2005. The State later presented evidence that, based on a DNA test, there was a greater than 99.99 percent probability that Appellant was the biological father of this child. Based on this evidence, an expert in forensic DNA and population genetics opined that Appellant was the father.

After the trial court gave a limiting instruction regarding the Williams rule evidence, K.D. testified as follows regarding three events that occurred in the family home in Chiefland. K.D.'s first sexual encounter with Appellant occurred when she was "about 12 going on 13." At that time, K.D. and her sister were sharing a bedroom, and Appellant came in to say "good night." K.D. was lying on a mattress on the floor, and her younger sister was lying in a twin bed. After saying "good night," Appellant lay on the floor next to K.D. and acted as if he had fallen asleep. As K.D. was beginning to fall asleep, she felt Appellant's arm around her. Appellant had placed his hand under her shirt and was beginning to fondle her. K.D.'s sister was "sound asleep" at the time. There was no talking between K.D. and Appellant. Appellant later began to fondle her vaginal area. A week or two later, Appellant repeated the "same general routine," but this time, he engaged in penile-vaginal intercourse with her. Another incident occurred where Appellant woke K.D. up and "started performing oral sex on [her]." This incident also occurred while she was sleeping in the room with her sister.

K.D. testified that Appellant continued to sexually abuse her after she gave birth. Specifically, she recalled an incident that occurred when her family was moving residences. Because the family had already packed most of its belongings, there was only one bed in the house, the one that Appellant and K.D.'s mother had shared. K.D. went to sleep on that bed and was awakened by Appellant, who was having vaginal intercourse with her.

K.D.'s sister testified that she had never seen Appellant "wandering around at night" and had never awakened to find him near her bed.

In his own defense, Appellant testified that K.D. would sometimes sleep on a camping mat, but that he had never gone into her bedroom and lain down next to her on the mat. He denied ever touching K.D. "in her sexual, private areas" or fondling her breasts or vaginal...