Hernandez v. State

• Decision Date: 16 September 2009
• Docket Number: No. 4D07-3501.,4D07-3501.
• Parties: Manuel HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

16 So.3d 336

Manuel HERNANDEZ, Appellant, v. STATE of Florida, Appellee.

No. 4D07-3501.

District Court of Appeal of Florida, Fourth District.

September 16, 2009.

Siobhan Helene Shea, Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

Appellant, Manuel Hernandez, seeks a new trial on the charge of lewd and lascivious molestation. He argues that the trial court, when performing the required analysis before admitting Williams¹ rule evidence, abused its discretion by applying the wrong standard. Because the lower court made multiple Williams rule admissibility determinations based on an incorrect "light most favorable to the state" standard, the court's analysis was erroneous as a matter of law. We are compelled to reverse and order a new trial.

At trial, the victim, B.P., testified that when he was nine and in summer camp in 2003, he met Hernandez and would talk with him in Spanish. On a field trip, Hernandez was one of the drivers and B.P. rode with him and sat in the front passenger's seat of a van. While driving, Hernandez, using his right hand, started rubbing B.P.'s left thigh in a circular motion. He then moved his hand to B.P.'s private area and continued to rub. B.P. objected by moving Hernandez's hand away and Hernandez again placed his hand on B.P. This sequence occurred three times. While Hernandez was doing this, he was smiling at B.P. and said "No te gusta carinito," which B.P. translated to mean "You don't like the way I caress you." After they arrived at their destination and B.P. left the van, he told another camper about the incident. Later in the day, B.P. told his mother about what had happened and identified Hernandez to the police.

Hernandez was interviewed by law enforcement officials and when asked whether he touched B.P., replied that he may have done so inadvertently. Hernandez told police that B.P. had taken hold of his hand while offering comments pertaining to Hernandez's wristwatch, a scratch on Hernandez's arm and the hair on Hernandez's arms. The officer who interviewed Hernandez did not see a scratch, a wristwatch or tan lines (possibly indicating the use of a wristwatch).

Other witnesses included another camper who was riding in the same van and saw Hernandez reach over to B.P. plus two other field trip drivers who did not see Hernandez at any time reach over and touch B.P.

Prior to trial, the State filed an amended notice of intent to offer Williams rule evidence, seeking to introduce the testimony of C.W. Before the State rested, the Williams rule evidence was proffered to the court. In 1975, when C.W. was seven and living in Venezuela, he met Hernandez, who was the leader of the Boy Scout troop C.W. belonged to. During a field trip with other campers and Hernandez, C.W. stayed overnight at a house. Three of the boys, including C.W., slept in the same room as Hernandez. Hernandez determined the sleeping arrangements and as a result, C.W. slept in a double bed with Hernandez and the two other boys slept in a separate bed. At dawn of the next day, C.W. remembers waking up with Hernandez's hand moving around on C.W.'s genitals. Startled, C.W. removed Hernandez's hand and said "no." Hernandez again placed his hand on C.W.'s genitals and C.W. again moved his hand and said "no." After the third time, C.W. removed Hernandez's hand, said "no," stood up and went to the corner until morning. On the day the boys came back from the camp, C.W. told his sister and parents what had happened. During trial in the instant matter, C.W. identified Hernandez in court.

In evaluating, analyzing and then ultimately admitting the testimony of C.W., the trial court made the following findings:

The Court, as I said before, I am guided by the rule in this case is 90.404(b). I think you have a collateral crime evidence that is ordinarily admissible in this type of situation. As we said earlier, the legislature has expanded the admissibility of such in a crime involving child molestation. This clearly falls within that heading in my opinion. He is charged with lewd and lascivious molestation. The provision provides in a criminal case in which defendant is charged with a crime involving child molestation, the defendant's commission of other crimes, wrong, acts of other molestation when a defendant is charged with a crime involving child molestation and provides that such evidence may be considered for its bearing on any matter in which it is relevant.

The State advances that the evidence regarding this prior incident, alleged incident, with [C.W.] is being offered to show a common scheme or plan, being offered to show absence of mistake or accident and to corroborate testimony of the minor child in this case. The Court is going to find that all those are an appropriate basis for such evidence to be offered. I have considered the evidence. I have considered the testimony of [C.W.] earlier in the case. And in the light most favorable to the State, the McLean case says that I have to make a preliminary determination that the acts were proved by clear and convincing evidence. And, again I, say this in the light most favorable to the State, I'm going to find that has been satisfied in this scenario based upon the testimony of [C.W.]

Additionally, I then must consider the—the 401, 403 balancing in this case and I have done that. I find, first of all, I have to consider whether there is probative value of such evidence, and I'm going find that there is, quite frankly, substantial probative value. The facts are such—or the evidence is such that it—again, in the light most favorable to the State, makes existence of the fact issue auto [sic] new case, that is whether or not Mr. Hernandez intentionally committed the acts he is accused of more likely than it would be without such evidence, and clearly that is the case.

I think there is a substantial amount of probative value. I say that having considered all of the factors that the Supreme Court Justice Pariente lays out in headnote 12 of the McLean decision including the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and the gender of the alleged victims, and the manner in which the acts were committed.

You have a situation where in terms of the age and the gender, the gender is the same. [C.W.] and [B.P.] are both males. The age is approximately the same. One was approximately seven. [B.P.], I think we all agree was nine at the time of the alleged incident.

Additionally, the nature of the—the manner in which the acts were committed, again, in a light most favorable to the State, involved touching or manipulating the genitalia of the two witnesses. And this was done in a manner factually in which the two children had said no, stop that, and it continued. I find there is some factual similarity there.

Additionally, the acts were allegedly occurred in the—again, in the light most favorable to the State, in a situation in which the persons were entrusted into the custody of Mr. Hernandez. So I find that there is a sufficient similarity based upon all those factors.

The closeness in time, obviously, it's not close in time. I have the authority that the State provided. I still, nonetheless, find that the remoteness, I guess, of the prior incident regarding [C.W.] as not such to outweigh the similarity of the prior acts, the frequency of the prior acts. There is but one that's been presented. So obviously there is not a repeated situation. I guess that could cut both ways. Frankly, I'm not exactly sure how that would cut in any given case. But I have considered that factor. I have also considered what the Supreme Court says in terms of the presence or the lack of...