Fike v. State

• Decision Date: 27 February 2009
• Docket Number: No. 5D07-2556.,5D07-2556.
• Citation: 4 So.3d 734
• Parties: Kyle Warren FIKE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

4 So.3d 734

Kyle Warren FIKE, Appellant, v. STATE of Florida, Appellee.

No. 5D07-2556.

District Court of Appeal of Florida, Fifth District.

February 27, 2009.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, J.

Kyle Fike appeals his convictions of one count of sexual battery on a victim under 12 years of age and two counts of lewd or lascivious molestation on a victim under 12 years of age. Fike argues that the trial court erroneously admitted Williams¹ rule evidence at trial regarding a prior incident of alleged sexual molestation. We agree and reverse.

Prior to trial, the State filed a Williams rule notice, advising Fike of its intention to call R.S.J. as a witness to testify that between October 1993 and February 1994, Fike sexually battered him. At a pretrial hearing, R.S.J. testified that he was the younger brother of Fike's ex-wife. Between the time that he was five and seven years old, Fike would babysit him while his sister took college classes. At that time, Fike forced him to perform oral sex on him approximately ten times. After hearing argument, the court allowed the evidence, finding that R.S.J.'s testimony was reliable and the probative value outweighed the prejudicial effect of the evidence.²

At trial, the jury heard that Fike is M.S.F.'s father, and is divorced from her mother. M.S.F. was living with her mother and stepfather in Melbourne. One Friday in May 2005, M.S.F., who was eleven years old at the time, went to an Orlando hotel where Fike was staying to spend the weekend. The hotel room only had one bed. M.S.F. testified that on the first night of her visit, she fell asleep while she and Fike were watching a movie. She awoke to find Fike shoving her to the other side of the bed. Fike then got on top of her and took off her clothes. He took her hand, and with his hand on top of hers, began rubbing her crotch. She did not remember if his hand actually touched her private area. Fike then lay down beside her and rubbed his penis with her hand. M.S.F. further testified that Fike got back on top of her and pushed his penis "a little bit" inside of her. M.S.F. testified that she was frozen, and did not respond to Fike's actions because she was scared. She indicated that when Fike got off of her, he told her that he had taken too much cough syrup. M.S.F. conceded that she had previously said that Fike had not put his penis in her vagina. However, she testified that her memory was better at trial because she was having flashbacks.

M.S.F. agreed that she had many opportunities over the next two days to tell someone what happened, but did not. Her father worked on Saturday, and she spent the day with some of his friends. She testified that she slept in the bed with Fike the second night without further incident. Her father drove her home on Sunday, but his car broke down on the way, and her stepfather came and picked them up. Fike spent the night at M.S.F.'s house.

M.S.F. did not report the incident to her mother until July 2005. Her mother then contacted the police. Steve Farris, a detective with the Orlando Police Department, testified that he contacted Fike, who confirmed that he rented a room at the hotel and that his daughter stayed with him for a few days in May 2005. Fike also confirmed that he shared a bed with M.S.F. when she visited and that there was cough syrup in the room because he had a cough from his job as a welder. Detective Farris indicated that Fike denied touching M.S.F. in a sexual way.

R.S.J. then testified. Before and after R.S.J.'s testimony, the court gave the jury the appropriate limiting instruction. R.S.J. testified that he is sixteen years younger than his sister, Fike's ex-wife and M.S.F.'s mother. R.S.J., who was twenty years old at the time of trial, testified that when he was between the ages of three and seven, Fike often babysat him when his mother went to work and his sister attended college. He testified that throughout those years, Fike would take him to the bathroom of his home and force him to perform oral sex. Other children were in the home, but were not present in the bathroom. He eventually told his mother, and explained that he waited so long because he was scared that Fike would hurt him.

After the State rested its case, Fike called several witnesses who all testified that they had known Fike and his daughter for years, and saw them during M.S.F.'s May 2005 visit in Orlando. They each said that they spent time with M.S.F. the day after the alleged incident, and that she did not seem any different or say anything that led them to believe anything improper had happened. Fike also testified and denied any sexual contact with M.S.F. He admitted that in May 2005, he was living in a hotel in Orlando for a short time when M.S.F. came for a weekend visit, and that they both slept in the same bed during that visit. On the Friday night of the visit, they watched a movie and fell asleep in the same bed. He went to work the next morning and he gave his cell phone to M.S.F., who spent the day with his friends. After work, they visited several of his friends. On Sunday, he drove M.S.F. home, but his car broke down on the way, and M.S.F.'s stepfather came and picked them up. He stayed at M.S.F.'s home for a couple of nights, and eventually, M.S.F.'s stepfather took him home.

The jury returned a guilty verdict on all three counts, with a special finding that Fike was over the age of eighteen years and M.S.F. was under the age of 12 years old at the time of the offenses. Fike was adjudicated guilty of capital sexual battery and sentenced to life in prison. He was not sentenced on the two counts of lewd or lascivious molestation. This appeal followed.

Fike's sole contention is that R.S.J.'s testimony was improper. He argues that there was no similarity between the Williams rule evidence and the charged crime in order to justify the introduction of R.S.J.'s testimony. The State contends that the issue was not preserved for appeal because that specific objection was not raised below. In addition, the State argues that even if the issue was preserved, the trial court correctly admitted the Williams rule evidence.

We agree with the State that the issue was not preserved for appellate review because the specific objection complained of on appeal was not raised below. At the Williams rule hearing, Fike's counsel argued only that there was no evidence corroborating R.S.J.'s testimony, and thus, it should not be admitted.³ On appeal, he argues that Williams rule evidence was not sufficiently similar to the charged sex act. To preserve an issue for appeal, a litigant must: 1) make a timely contemporaneous objection in the trial court; 2) state the legal grounds for that objection; and 3) raise the specific argument in the appellate court that was asserted as the legal ground for the objection or motion made in the trial court. Harrell v. State, 894 So.2d 935, 940 (Fla.2005); Sanchez v. State, 909 So.2d 981, 984 (Fla. 5th DCA 2005). Since Fike's argument on appeal differs from the objection raised below, Fike must not only show error, but error that is fundamental to obtain a new trial. See Marion v. State, 287 So.2d 419, 420-21 (Fla. 4th DCA 1974); Davis v. State, 276 So.2d 846 (Fla. 2d DCA 1973) (recognizing obvious error in admitting evidence of other offense at trial as fundamental, although error was not raised below nor argued on appeal); Robinson v. State, 462 So.2d 471 (Fla. 1st DCA 1984) (reversing for "fundamental injustice" under rule 9.140(f)).

The trial court's ruling on the admission of evidence is reviewed for abuse of discretion. See LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001); Bryan v. State, 947 So.2d 1270, 1271 (Fla. 5th DCA 2007). Section 90.404, Florida Statutes (2007), Florida's codification of the Williams rule, provides that evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, but is inadmissible when relevant solely to prove bad character or propensity. In cases involving sexual battery in a familial context, "a relaxed standard of admissibility" of the collateral-crime evidence applies.⁴ McLean v. State, 934 So.2d 1248, 1257 (Fla. 2006). Despite the relaxed standard of admissibility, the trial court must still function as a gatekeeper and perform an adequate balancing test to weigh the probative value of the evidence against its potential for unfair prejudice. Id. at 1261-62. McLean set forth the following guidelines:

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charge; (3) the frequency of the prior act; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Factors other than the potential for unfair prejudice are also pertinent in a section 90.403 analysis. The trial court must determine whether the evidence of the prior acts will confuse or mislead jurors by distracting them from the central issues of the trial. Also necessary is an assessment whether the evidence is needlessly cumulative of other evidence bearing on the...