Grant v. State, No. 89-2063

CourtCourt of Appeal of Florida (US)
Writing for the CourtWENTWORTH; JOANOS; SMITH; SMITH
Citation577 So.2d 625,16 Fla. L. Weekly 863
Docket NumberNo. 89-2063
Decision Date26 March 1991
Parties16 Fla. L. Weekly 863 Ullyses Scott GRANT, Appellant, v. STATE of Florida, Appellee.

Page 625

577 So.2d 625
16 Fla. L. Weekly 863
Ullyses Scott GRANT, Appellant,
v.
STATE of Florida, Appellee.
No. 89-2063.
District Court of Appeal of Florida,
First District.
March 26, 1991.

Rehearing Denied May 1, 1991.

Page 626

Henry R. Barksdale, Milton, for appellant.

Robert A. Butterworth, Atty. Gen., William A. Hatch, Asst. Atty. Gen., for appellee.

WENTWORTH, Senior Judge.

This is an appeal from a judgment of conviction for sexual battery on a person less than twelve years of age. We affirm, finding no abuse of discretion by the trial court in allowing the prosecution to offer in rebuttal the testimony of another child as to sexual assault by the appellant.

The victim, A.S., is the appellant's step-grandson (the grandson of appellant's wife who was previously married). At trial, A.S., his mother, his mental health counselor and a clinical psychologist testified for the state as to the charged offenses between 1969 and 1978 beginning when A.S. was age three. Two of appellant's grandchildren, appellant's son and daughter, and the appellant himself testified for the defense. After the state rested, the prosecution called in rebuttal a nine-year-old step-granddaughter who testified to molestation by appellant when she was five.

A.S. testified on direct examination that his grandfather had him place his mouth on the appellant's penis on one occasion, and on numerous occasions the appellant would place his mouth upon A.S.'s penis. These acts took place in a workshop behind appellant's house, also referred to as the shed, and in the house and a van and wooded area. At the time of trial, A.S. was 23 years old. The incidents of sexual battery occurred between January 1969 and January 1978, when he was between the ages of 3 and 12.

C.W., the rebuttal witness in question here, testified that when she was five appellant touched her "privates" with his tongue in the shop behind the appellant's house. Although the victims were not the same sex and the batteries occurred ten years apart, the incidents described by both children involved the appellant's oral contact with sexual organs of his young grandchildren in his workshop. A.S. was three when the abuse began; C.W. was five. Because the two victims shared in common a closely comparable age, the same relationship with the abuser, abuse involving primarily the appellant's oral contact with the genitals of the grandchildren, and because the incidents occurred in the

Page 627

workshop on most occasions, the collateral crime evidence falls within the specified standards of Heuring v. State, 513 So.2d 122 (Fla.1987), for general admissibility of such evidence.

We find no abuse of discretion in the trial judge's conclusion that the testimony in question was proper rebuttal in this case. Defense witnesses testified to a pattern of family activity which, on the occasions of children's presence in defendant's home, placed defendant working in his shop alone. 1 The point was emphasized by the direct denial by two of appellant's natural grandchildren and one daughter that they ever saw defendant alone with the victim. The testimony of C.W. as to defendant's conduct with her alone in the shop was then properly offered in rebuttal, as to which broad discretion is well established. Pitts v. State, 473 So.2d 1370 (Fla. 1st DCA 1985), rev. den., 484 So.2d 10 (Fla.1986). We find no error in the court's overruling defense objection which was based on the ground that her testimony was not directed toward testimony of defense witnesses (who had not referred to C.W. except to identify her relationship to defendant, on cross-examination).

The substance of C.W.'s testimony, in the context of this case, is well within the guidelines established by Heuring, supra. Contrary to appellant's assertion, C.W.'s testimony did not become a feature of the trial nor was it even a focus of the prosecution's closing arguments. The appellant has not demonstrated that her testimony was unfairly prejudicial. The appellant's defense was that his grandson was fabricating allegations, and the appellant obtained testimony, in his own behalf, of two of his grandchildren who stated that they never saw A.S. and the appellant alone. This appears to be an example of the situation contemplated in Heuring: the use of similar fact evidence to corroborate a child victim's testimony, the credibility of which is the central issue at trial.

Appellant cites Reyes v. State, 253 So.2d 907 (Fla. 1st DCA 1971), which is distinguishable. In that case, this court reversed judgments of conviction for possession and sale of illegal drugs because the prosecution introduced, following the defendant's case, extensive evidence concerning prior illegal drug activity. It was noted that "[t]he feature of the trial quickly faded into the spotlight of a sideshow focusing on the character, general reputation and propensity of defendant Reyes to engage in criminal activities." 253 So.2d at 907. This court held that the "key" word in Williams v. State, 110 So.2d 654 (Fla.1959), is "relevant," and in Reyes, relevancy of the collateral crimes was "absent." Id. at 908. In Heuring, the supreme court held that evidence of collateral crimes involving sexual abuse within the familial context would be relevant to corroborate a victim's testimony when the credibility of a victim is the central issue in such a trial.

The state's preceding objection to defense inquiry during testimony by defendant's natural grandson, as to whether defendant had molested him, was properly granted. See Buford v. State, 403 So.2d 943, 949 (Fla.1981), holding that specific instances of behavior are not admissible even to establish reputation...

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4 practice notes
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...crimes of the type relied on should not result in collateral crime evidence being excluded. In Adkins, supra, and in Grant v. State, 577 So.2d 625 (Fla. 1st DCA1991), the court found that a difference in sex of the victims would not preclude admission of collateral crimes evidence. 6 In Wil......
  • Adkins v. State, No. 91-1389
    • United States
    • Court of Appeal of Florida (US)
    • September 11, 1992
    ...(Fla. 5th DCA 1989), rev. denied, 560 So.2d 232 (Fla.1990). See also: Smith v. State, 538 So.2d 66 (Fla. 1st DCA 1989); Grant v. State, 577 So.2d 625 (Fla. 1st DCA 1991); Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990); Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA 1991); Padgett v.......
  • Glynn v. State, No. 4D99-4274.
    • United States
    • Court of Appeal of Florida (US)
    • May 16, 2001
    ...See Allred v. State, 642 So.2d 650, 651 (Fla. 1st DCA 1994); Brown v. State, 579 So.2d 898, 899 (Fla. 4th DCA 1991); Grant v. State, 577 So.2d 625, 627 (Fla. 1st DCA 1991)(citing Pitts v. State, 473 So.2d 1370 (Fla. 1st DCA 1985), rev. denied, 484 So.2d 10 787 So.2d 205 Accordingly, we cann......
  • Glynn v. State, 4
    • United States
    • Court of Appeal of Florida (US)
    • March 28, 2001
    ...See Allred v. State, 642 So. 2d 650, 651 (Fla. 1st DCA 1994); Brown v. State, 579 So. 2d 898, 899 (Fla. 4th DCA 1991); Grant v. State, 577 So. 2d 625, 627 (Fla. 1st DCA 1991)(citing Pitts v. State, 473 So. 2d 1370 (Fla. 1st DCA 1985), rev. denied, 484 So. 2d 10 (Fla. 1986)). Accordingly, we......
4 cases
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...crimes of the type relied on should not result in collateral crime evidence being excluded. In Adkins, supra, and in Grant v. State, 577 So.2d 625 (Fla. 1st DCA1991), the court found that a difference in sex of the victims would not preclude admission of collateral crimes evidence. 6 In Wil......
  • Adkins v. State, No. 91-1389
    • United States
    • Court of Appeal of Florida (US)
    • September 11, 1992
    ...(Fla. 5th DCA 1989), rev. denied, 560 So.2d 232 (Fla.1990). See also: Smith v. State, 538 So.2d 66 (Fla. 1st DCA 1989); Grant v. State, 577 So.2d 625 (Fla. 1st DCA 1991); Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990); Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA 1991); Padgett v.......
  • Glynn v. State, No. 4D99-4274.
    • United States
    • Court of Appeal of Florida (US)
    • May 16, 2001
    ...See Allred v. State, 642 So.2d 650, 651 (Fla. 1st DCA 1994); Brown v. State, 579 So.2d 898, 899 (Fla. 4th DCA 1991); Grant v. State, 577 So.2d 625, 627 (Fla. 1st DCA 1991)(citing Pitts v. State, 473 So.2d 1370 (Fla. 1st DCA 1985), rev. denied, 484 So.2d 10 787 So.2d 205 Accordingly, we cann......
  • Glynn v. State, 4
    • United States
    • Court of Appeal of Florida (US)
    • March 28, 2001
    ...See Allred v. State, 642 So. 2d 650, 651 (Fla. 1st DCA 1994); Brown v. State, 579 So. 2d 898, 899 (Fla. 4th DCA 1991); Grant v. State, 577 So. 2d 625, 627 (Fla. 1st DCA 1991)(citing Pitts v. State, 473 So. 2d 1370 (Fla. 1st DCA 1985), rev. denied, 484 So. 2d 10 (Fla. 1986)). Accordingly, we......

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