Farrill v. State, 2D98-2024.

• Decision Date: 14 April 2000
• Docket Number: No. 2D98-2024.,2D98-2024.
• Citation: 759 So.2d 696
• Parties: William FARRILL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

759 So.2d 696

William FARRILL, Appellant, v. STATE of Florida, Appellee.

No. 2D98-2024.

District Court of Appeal of Florida, Second District.

April 14, 2000.

Larry Hoffman, Clearwater, for Appellant.

Robert Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

William Farrill has appealed from his convictions for two counts of capital sexual battery in violation of section 794.011(2), Florida Statutes (1997). His sole contention is that the trial court's erroneous admission of collateral sex crime evidence pursuant to Williams v. State, 110 So.2d 654 (Fla.1959), amounted to reversible error. The charged and collateral offenses were similar, but not strikingly so, and they did not possess unique characteristics to distinguish them from other similar sexual batteries on children. The evidence should not have been admitted. Moreover, after an examination of the entire record, we have concluded that the error affected the verdict, and we reverse.

Mr. Farrill was charged with two counts of sexual battery on M.W., one involving union of his mouth with her vagina and the other involving union of his finger with her vagina. He was also charged in the original information with sexual battery on C.R. by union of his mouth with her vagina. Prior to trial, however, the judge severed count 3 on the basis that the charges involving the two girls were inconsistent and involved inconsistent defenses. The State then gave notice of its intent to use evidence of the incident involving C.R. in the prosecution of the M.W. case. The defense attorney filed a motion to strike the notice; after a hearing, the judge ruled in favor of the State to allow the admission of the evidence.

At the hearing on the motion to strike the notice of intent to use similar fact evidence, the judge began by saying, "I don't think this is a familial custody issue. I think the State is gonna argue that. I don't think there's a reason they would be using Williams' Rule other than-what turns out to be the prohibitive purpose for propensity of the bad acts." The judge then heard argument only of the assistant state attorney and defense counsel. At the conclusion, without any explanation of his decision, the judge ruled that the evidence could be admitted.

This perfunctory procedure became important when the trial ensued, because a new judge presided over the trial. At every appropriate juncture in the trial the defense attorney objected to admission of the similar fact evidence, and after the defendant was convicted he did so in his motion for new trial. Yet the trial judge, admittedly not having had the benefit of the transcript of that hearing, gave complete deference to the ruling of his predecessor, even though the initial decision was based only on argument of the lawyers and not on a proffer of the evidence through the witnesses themselves. Furthermore, even though the pretrial judge indicated no foundation for his ruling, the attorneys at trial acted with the assumption that the pretrial judge had ruled that both girls were in a familial or custodial relationship with Mr. Farrill, a conclusion that the trial judge rejected in the hearing on the motion for new trial. The successor judge nevertheless denied that motion.

The trial testimony revealed that Mr. Farrill became involved with M.W. because he was a friend of her parents. Mr. Farrill, who had known M.W.'s parents for some years before these incidents were alleged to have happened, would from time to time stay with the Farrill family. M.W. testified that Mr. Farrill treated her "like an uncle" and that she "grew up with him." Her parents would occasionally leave M.W. and her brother in Mr. Farrill's charge when they needed to run to the store. Later on, when M.W.'s mother separated from her father, the mother would occasionally ask Mr. Farrill to babysit the children. Based upon these facts, the trial judge ruled at the hearing on the motion for new trial that the State had established a familial or custodial relationship between M.W. and Mr. Farrill.

The situation with C.R. was quite different, however. C.R. was a next door neighbor of Mr. Farrill's at a time when he was not staying at M.W.'s home. Instead, his household consisted of himself, a young daughter, and the mother of his child. C.R., who was approximately 9 years old when the Williams rule incident occurred, spent a lot of time in the Farrill home, but almost exclusively with the mother and daughter and not Mr. Farrill. Occasionally she would babysit for the little girl. Absolutely no testimony was adduced from which one could conclude that a familial or custodial relationship existed between C.R. and Mr. Farrill, which occurs when the "relationship [is] one in which there is a recognizable bond of trust with the defendant, similar to the bond that develops between a child and her grandfather, uncle, or guardian." State v. Rawls, 649 So.2d 1350, 1353 (Fla.1994).

The relationship between defendant and victim has become preeminently significant in the recent analyses of the admissibility of Williams rule evidence in cases of sexual battery on children. In sexual battery cases, as in any criminal proceeding, admission of collateral crime evidence is highly prejudicial to the defendant, and the court must be alert to avoid the risk that the jury will convict a defendant based upon propensity alone rather than upon proof that he committed the charged crimes. See Heuring v. State, 513 So.2d 122 (Fla.1987)

. Traditionally, as the Heuring court noted, the similar fact evidence must meet a "strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses." 513 So.2d at 124. Generally, as set out in section 90.404(2)(a), Florida Statutes (1997), the evidence must be relevant to a material fact such as identity, intent, motive, opportunity, plan, knowledge, or absence of mistake or accident. As the Heuring court noted, identity is rarely an issue when a child is sexually assaulted or battered by a family member or other person who stands in loco parentis to the victim, but courts have allowed collateral evidence to show "modus operandi, scheme, plan, or design, even though the distinction between sexual design and sexual disposition is often tenuous." 513 So.2d at 124. In those instances, the similar fact evidence is simply relevant for corroboration, and its probative value is held to be greater than the prejudicial effect to the defendant. Id. at 125.

The Florida Supreme Court further refined the standards for admissibility of collateral crime evidence in the familial relationship arena in Saffor v. State, 660 So.2d 668, 672 (Fla.1995), finding that the familial context provides one marker of significant similarity between the charged and collateral offenses but that further scrutiny of the parallels is always required:

The additional showing of similarity will vary depending on the facts of the case and must be determined on a case-by-case basis. Thus, we do not eliminate the requirement of similarity which undergirds the Williams rule. However, the strict similarity in the nature of the offenses and the circumstances surrounding their commission which would be required in cases occurring outside the familial context is relaxed by virtue of the evidence proving that both crimes were committed in the familial context.

Because the incident with C.R. was not committed in a familial or custodial setting, the State was not entitled to the benefit of this relaxed standard in this case. A comparison of the charged and collateral offenses, furthermore, reveals that the circumstances surrounding them were not strikingly similar.

M.W. was 16 when she testified at trial about events that had occurred eight to ten years earlier. The first incident allegedly occurred when she was about 6 years old. Mr. Farrill came into her room when she was sleeping, took off her clothes, and put his mouth and tongue on her privates. Some time later, M.W.'s family moved to another house where Mr. Farrill was also a frequent visitor. She described his practices as follows: "In my bedroom at night when everyone else was asleep he would come in and undress himself and me and spread my legs and perform oral sex, and then sometimes he would, like a little after, he would start to put his fingers in my vagina." Mr. Farrill reportedly did this "whenever he had the chance," or "most of the time when I was alone with him." By promising her gifts such as dolls and cookies, Mr. Farrill persuaded M.W. not to tell anyone.

On cross examination she described one specific incident in more detail. One night after a 4th of July party, when M.W. was about 9, she fell asleep in a big bed with her 6-year old brother and a neighbor boy of about the same age. Mr. Farrill then came into the room and performed oral sex on her in the bed with the other two children present.

C.R. was 17 when she testified to an incident that occurred when she was 9. She went next door to babysit for Mr. Farrill's daughter and found Mr. Farrill and his girlfriend discussing what it meant to be a virgin. Because C.R. was not familiar with the meaning, Mr. Farrill offered to explain it. After the child's mother had left the home, Mr. Farrill took C.R. to a nearby Circle K convenience store to buy a magazine to use as a visual aid. C.R. was under the impression that Mr. Farrill paid $12 or $20 for the magazine, and she described at least one of the pictures in great detail. When the two returned to the Farrill home and were looking at the magazine, C.R. questioned why the models had "hair down there" but she did not. Mr. Farrill acted surprised to hear that she did not have pubic hair, so he offered her $20 to show him. C.R. then went into the child's...