Griffith v. State

• Decision Date: 30 November 1998
• Docket Number: No. 97-963.,97-963.
• Citation: 723 So.2d 860
• Parties: James Oliver GRIFFITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

723 So.2d 860

James Oliver GRIFFITH, Appellant, v. STATE of Florida, Appellee.

No. 97-963.

District Court of Appeal of Florida, First District.

November 30, 1998.

Nancy A. Daniels, Public Defender; Judith Dougherty Hall, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Kristina White, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

James Griffith appeals from a final judgment and sentence after his conviction for capital sexual battery on a child under the age of 12. Appellant raises three issues, two of which merit discussion: Whether the trial court erred by admitting evidence of collateral crimes, and whether the trial court erred in permitting a child abuse counselor to testify to a prior hearsay statement. We find that the trial court erred in admitting collateral crime evidence where there was a total lack of similarity between the charged crime and the collateral crimes. We also find that had the issue been properly preserved, we would be required to reverse due to the improper admission of the prior hearsay statement by the victim without any factual findings which would support that the "circumstances of the statement provides sufficient safeguards of reliability...." See §§ 90.803(23)(b) and (c), Fla.Stat. (1997).

Collateral Crimes

R.F. testified that when he was nine years old (in 1992), the appellant had been left to babysit with him for three days while his parents took a trip. The witness testified that the appellant sexually abused him during that time. The sexual abuse occurred inside the victim's house and involved anal penetration by appellant's penis.

In 1995 while investigating allegations against the appellant for sexual abuse of two girls ages eight and ten, Deputy Braband discovered that the appellant had been accused of a sexual incident against a young boy, R.F., in 1992. Braband testified that during his second interview with appellant, which was tape recorded, appellant confessed to the two incidents with the young girls and also admitted to the offense against R.F. At appellant's trial for capital sexual battery against R.F., the state was permitted to put on the testimony of Deputy Braband that appellant confessed to the sexual incidents with the young girls and also confessed to the sexual incident involving R.F. Braband's testimony before the jury was as follows:

Q What did Mr. Griffith admit to you that he had done?

A He admitted to me that he had taken the eight-year-old child down to the end of the garden at a friend's house where they were living at the time, that he had removed the child's underwear, that he had inserted his finger in her vagina and that he had removed his penis and had the child masturbate him until he had ejaculated.

Q How about the other little girl, what did he tell you about that?

A He admitted to me that he had fondled the child inside the house on top of her clothes. He had said that—or admitted that he rubbed the child's vagina through her shorts and that he had rubbed her chest.

Q Did you have an occasion during this taped interview to question Mr. Griffith, the defendant, about any acts that may have occurred with a person by the name of R.F.?

A Yes, sir, I did.

Q What did you—what did the defendant tell you?

A I asked the defendant if he had done this kind of thing with any other children? And initially he had told me no. I asked him then specifically about R.F. and the incident which I had prior knowledge of.... He says, "Well, I was drinking." I says, "Well, I understand you may have been drinking," I says, "but you remember what happened, don't you?" I said, "Look, I know this is difficult for you. Let me help you. I don't want to put words in your mouth." I said, "I don't want to tell you something that didn't happen." I says, "And correct me if I'm wrong, but is this not really what happened?" I said, "Did you not take the boy's pants down and lay him on the floor and attempt to stick your penis in his anus?" He said, "Yes, but I was drinking." I said, "But that's what you did, isn't it?" He said, "Yes, it is."

The Williams rule¹ has been codified at section 90.404(2)(a), Florida Statutes (1997), and reads as follows:

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

In Morrow v. State, 717 So.2d 93, 23 Fla.L. Weekly D1893 (Fla. 1st DCA 1998), we recently explained the law concerning admissibility of crimes in a situation involving sexual abuse of children where the charged crime involved abuse in a familial or custodial setting, as in the instant case, and the collateral crimes were committed outside the familial context:

Evidence of other crimes or acts is admissible if it is found to be relevant for any purpose, save that of showing bad character or propensity. See Williams; § 90.404, Fla.Stat. (1997). Section 90.404, which codified the holding in Williams, provides that similar fact evidence of other crimes, wrongs, or acts may be admitted when relevant to prove a material fact in issue such as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In limited circumstances, the testimony of a child victim may be corroborated through evidence of a collateral offense. See Heuring v. State, 513 So.2d 122 (Fla.1987)

(providing for such corroboration in cases where the offenses occur in a familial context); State v. Rawls, 649 So.2d 1350 (Fla.1994) (extending the principle announced in Heuring to collateral offenses committed outside the familial context). Although the victim of the charged offense herein, A.S., was arguably in a familial relationship with appellant, the same cannot be said of the victims of the collateral offenses. The parties concede that the admissibility test in this case is measured by the stricter standard for non-familial settings where the collateral offense(s) must bear a higher degree of similarity to the charged offense. See Rawls, 649 So.2d at 1353; cf. Saffor v. State, 660 So.2d 668 (Fla.1995) (recognizing the relaxed standard of admissibility of the collateral sex crime evidence for familial sexual battery cases); Barton v. State, 704 So.2d 569 (Fla. 1st DCA 1997) (stating that in a familial setting, the familial relationship itself may be one of the points of similarity between the charged and collateral offenses.)

Id. at D1893-1894, 717 So.2d at 94-95.

In Rowland v. State, 680 So.2d 502, 504 (Fla. 1st DCA 1996), we recognized the difficulty facing the trial courts in trying to determine on a case-by-case basis whether "alleged sex acts performed by an adult upon one child are sufficiently similar to other sex acts allegedly performed upon another child to meet the standard of admissibility." A review of several recent cases, however, may be instructive. In Rowland, we determined that collateral crime evidence was properly admitted where the alleged acts occurred in the same location, all of the victims were of the same gender, all of the victims were approximately the same age at the time of the alleged incident, and the physical acts which occurred were quite similar. See Rowland, supra at 504

. In Johnson v. State, 717 So.2d 1057, 23 Fla.L. Weekly D1894 (Fla. 1st DCA 1998), a case involving sexual batteries on adults, this court found that similarity in time of day, location, and detailed method of commission of the crime was sufficient to properly allow the collateral crime evidence. See id. at D1897, 717 So.2d at 1065. In Morrow, however, we found that dissimilarities in location, number of people present at the time of the incident, and method of gaining access to the victim required reversal based upon improper admission of collateral crimes. See Morrow, supra at D1894, 717 So.2d at 94.

In the instant case, the similar crime evidence admitted through the testimony of Deputy Braband has very little if any resemblance to the crime charged in this case. In fact, it is strikingly dissimilar to the crime charged. The collateral crime evidence offered involved two girls who were both sexually assaulted in different ways, neither of which involved the same type of assault that was alleged against the male victim in the instant case. The collateral...