Grier v. State, 4D08-1425.

• Decision Date: 23 December 2009
• Docket Number: No. 4D08-1425.,No. 4D08-2431.,4D08-1425.,4D08-2431.
• Citation: 27 So.3d 97
• Parties: Jewel GRIER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

27 So.3d 97

Jewel GRIER, Appellant, v. STATE of Florida, Appellee.

No. 4D08-1425.

No. 4D08-2431.

District Court of Appeal of Florida, Fourth District.

December 23, 2009.

Rehearing Denied March 5, 2010.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Sr. Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

The issue presented is whether the trial court erred by allowing similar fact evidence from two other collateral victims and whether it became an impermissible feature of the trial.

Grier was charged by information with seventeen counts, including lewd or lascivious molestation, lewd or lascivious conduct, attempted sexual battery, felony battery, battery, and sexual battery. The charges arose out of a physical relationship that Grier had with three teenage girls.

The trial court severed the three counts involving one victim, M.R., and stayed the remaining counts involving the other victims. Prior to trial, the State made an ore tenus motion to present testimony from Grier's other alleged victims, L.R., L.H., and P.H.,¹ as Williams rule witnesses. The trial judge ruled that there were an "overwhelming number of points of similarity" between the testimony of the victim and the proffered Williams rule witnesses. Specifically, the trial court noted the following similarities: all four met Grier through their association with the Jehovah's Witnesses; each girl started her "intimacy" with the defendant between the ages of fourteen and seventeen; Grier made comments on each girl's body; Grier was a family friend of each girl (except L.H.); each girl worked with Grier in some capacity; each girl testified that Grier touched her throughout her body; and the alleged molestations happened at both Grier's house and the girls' houses. Over Grier's objection, the witnesses were permitted to testify.

At trial, M.R. testified that she first met Grier when she was about seven or eight years old. Grier worked with M.R.'s parents, and when M.R. was about thirteen years old, Grier temporarily moved into her family's home. M.R., L.R., and L.H. would "hang out" with Grier. M.R. considered Grier to be like an "older brother." He would counsel her on "everything," including her relationships, her looks, and her clothing.

M.R. told the jury in detail of Grier's inappropriate conduct. One evening, M.R. was asleep in a hotel and awoke when Grier began rubbing her arms, back, and buttocks. Some weeks later, M.R. was watching television at Grier's house, and Grier abruptly started to kiss her. In yet another incident, M.R. explained that L.H. and Grier's brother watched as Grier began to rub and kiss M.R. on the sofa. At some point, Grier went to M.R.'s house and started rubbing M.R.'s vaginal area and kissing her thighs. These encounters continued for several weeks. M.R. explained that her encounters with Grier ended after she spent time with her peers and realized that Grier's behavior was wrong.

M.R. testified that Grier would kiss and fondle L.H. in her presence, and she related stories that Grier told her regarding L.H. Grier told M.R. that he rubbed his penis on L.H.'s body and ejaculated on her neck. M.R. also explained that Grier kept records where he would "rate" girls based on their looks, character, personality, and spirituality. One of Grier's records stated that M.R. was the "hottest thing on the planet" and asked rhetorically if he would "let things go with just a scratch or a sniff," i.e., whether he would pursue a more intimate sexual relationship with M.R.

Following M.R.'s testimony, the State presented the testimony of the two Williams rule witnesses, L.R. and L.H. L.R. testified that she met Grier at the age of ten when Grier started working with her mother. L.R. explained that she looked up to and trusted Grier as a devout member of her faith. Grier told L.R. she was "not as pretty" as M.R. and L.H., but he told L.R. he would be her "first kiss." During summer 2000, when L.R. was seventeen, Grier "[l]ifted [her] bra up, started kissing [her] breasts, kissing [her] on the mouth, on [her] thighs, [and her] stomach." Grier also tried to place L.R.'s hand on his penis. Grier repeatedly touched, rubbed, and kissed L.R. over several weeks.

L.H. testified that she started working with Grier when she was fourteen years old. L.H. and Grier developed a friendship that extended beyond work. Grier spoke to L.H. about relationships and how to get a person "to fall for you." He frequently commented on L.H.'s clothing, advising her to wear tighter shirts. When L.H. started working full-time with Grier in 2000, the relationship became more intimate. Grier made advances on L.H., including placing his tongue in L.H.'s bellybutton, looking at L.H.'s brassiere, touching various parts of her body, and placing her hands on his genitals. Grier tried to penetrate L.H.'s vagina and anus with his finger. Grier masturbated in front of L.H. on multiple occasions. L.H. testified that she did not have knowledge of Grier's interactions with M.R. but stated that she knew Grier kept records about other women.

We review the trial court's admission of Williams rule evidence for an abuse of discretion. Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003). The trial court admitted the collateral crimes evidence under section 90.404(2)(a), Florida Statutes, permitting admission of prior acts as proof of motive, opportunity, intent, knowledge, or absence of mistake. The statute tests the relevancy of collateral crime testimony, albeit within strict guidelines. Heuring v. State, 513 So.2d 122, 124 (Fla.1987). Even if a trial court finds that the collateral crime evidence is admissible under section 90.404(2), the court must also take a second step and weigh the danger of unfair prejudice against the probative value of the evidence. § 90.403, Fla. Stat. (2008); McLean v. State, 934 So.2d 1248, 1256 (Fla.2006). If the danger of unfair prejudice "substantially outweighs" the probative value, the trial court must exclude the evidence. § 90.403, Fla. Stat. (2008).

In this case,² the trial court found that Grier's conduct took place during the spring and summer of 2000 on a handful of occasions with each girl. The trial court further found that there were an "overwhelming number of points of similarity, and very few points of dissimilarity" between the victim's testimony and the Williams rule witnesses' testimony. Specifically, the court below noted roughly seven or eight points of similarity between M.R.'s testimony and the proffered testimony of L.R. and L.H. The only distinction noted by the trial court was that Grier was not a friend of L.H.'s family, in contrast to the close relationship Grier had to M.R. and L.R.'s parents.

Grier argues that the trial court erred by allowing L.R. and L.H. to testify because their statements included allegations of "kissing and touching their bare breasts." He also objects to testimony from L.H. as to attempted digital insertion in her genitalia, which Grier did not attempt on M.R.

"A collateral crime proven by similar evidence does not need to be absolutely identical to the crime charged in order to be admissible. Moreover, similar fact evidence relevant to prove a material fact other than identity does not need to meet the rigid similarity requirement applied when such evidence is used to prove identity." Triplett v. State, 947 So.2d 702, 703 (Fla. 5th DCA 2007) (citations omitted); see also Macias v. State, 959 So.2d 782 (Fla. 4th DCA 2007). The court in Triplett found that the "similarity between the collateral act of molestation" and the charged molestation shared "numerous similarities" with the charged offense and, as such, upheld the trial court's admission of the witness testimony as within the "broad discretion of the trial court." 947 So.2d at 704.

Likewise, in Macias, the defendant was a supervisor in a drug court program who offered special assistance to participants in exchange for sexual favors. At trial, the victim testified to exchanging sexual favors for leniency, while the collateral witness did not perform any sexual acts, despite the defendant's request and offer in exchange. The court found the collateral evidence to be sufficiently similar despite the lack of sexual contact in the collateral incident:

Macias gained access to A.A. and A.B. in the same manner, as both of them were undergoing mandatory drug counseling under the guidance of Sherman, who in turn was supervised by Macias; both had private meetings with Macias . . . in Macias' office with no one else present; both were close in age at the time, A.A. eighteen years old, and A.B. twenty-two; the two victims resembled each other, as both had blond hair, blue eyes and were of relatively slim build; Macias had similar conversations with both where he told them that if they "took care of him" or did "what he needed [them] to do," he would help them in Drug Court; and, lastly, Macias told both women not to tell anyone about these conversations.

959 So.2d at 785. In the present case, like Macias, many points of similarity between the charged act and collateral act exist. In that case, the variance in the extent of sexual contact between the victim and the collateral witness with the defendant did not render the collateral witness testimony irrelevant. As such, Macias suggests that variations in the degree of conduct between the charged crime and the collateral crime are not dispositive of...