Heuring v. State, No. 69609

CourtUnited States State Supreme Court of Florida
Writing for the CourtSHAW; McDONALD
Citation513 So.2d 122,12 Fla. L. Weekly 486
Decision Date24 September 1987
Docket NumberNo. 69609
Parties12 Fla. L. Weekly 486 Frederick A.R. HEURING, Petitioner, v. STATE of Florida, Respondent.

Page 122

513 So.2d 122
12 Fla. L. Weekly 486
Frederick A.R. HEURING, Petitioner,
v.
STATE of Florida, Respondent.
No. 69609.
Supreme Court of Florida.
Sept. 24, 1987.

Page 123

Larry D. Simpson of Davis, Judkins & Simpson, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for respondent.

SHAW, Justice.

We have for review Heuring v. State, 495 So.2d 893 (Fla. 1st DCA 1986), in which the district court certified the following question as one of great public importance:

IN A PROSECUTION FOR SEXUAL BATTERY UNDER SECTION 794.011(2), FLORIDA STATUTES (1977-1983), WHERE DEATH IS NOT A POSSIBLE PENALTY BECAUSE OF THE HOLDING IN BUFORD V. STATE, 403 So.2d 943 (FLA.1981), MAY THE STATE PROCEED BY INFORMATION INSTEAD OF INDICTMENT?

495 So.2d at 894. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

A capital felony is one that is punishable by death. Rusaw v. State, 451 So.2d 469 (Fla.1984). Sexual battery is not punishable by death. Buford. Further, we held in Rowe v. State, 417 So.2d 981 (Fla.1982), that murder in the first-degree is the only existing capital felony in Florida. We answer the certified question in the affirmative. Sexual battery is not a capital offense, and, therefore, it may be charged by information. See also State v. Hogan, 451 So.2d 844 (Fla.1984) (sexual battery is not punishable by death, and therefore, it may be tried by a six-member jury).

Having answered the certified question, we turn to the merits of this cause. Frederick A.R. Heuring was convicted and sentenced for the sexual battery of his stepdaughter, Melody, when she was between the ages of seven and twelve, in violation of sections 794.011(2) and (4)(e), Florida Statutes (1977-1983). Pursuant to section 90.404(2) and (4)(e), Florida Statutes (1985), the state filed a notice of intent to offer similar fact evidence that Heuring sexually battered his daughter, Anita, when she was between the ages of seven and fifteen. The batteries allegedly occurred approximately twenty years before the charged offenses.

The district court rejected Heuring's argument that the prior batteries were too remote to be relevant, reasoning that

[i]n determining whether evidence is too remote to be relevant, and therefore admissible, [sic] the court must consider not the passage of time alone, but the effect of the passage of time on the evidence. Remoteness in terms of the passage of time precludes the use of evidence that has become unverifiable through loss of memory, unavailability of witnesses and the like.

Page 124

495 So.2d at 894. Further, the court recognized that the absence of similar conduct for an extensive period of time might suggest that the conduct is no longer characteristic of the defendant. We agree with the court that, nevertheless, the evidence of the prior batteries was admissible. As the court noted, the opportunity to sexually batter young children in the familial setting often occurs only generationally. Heuring sexually battered the young female members of his family when the opportunity arose. Heuring does not dispute the court's finding that the passage of time had no effect on the witness's memory. We agree with the district court that the passage of time in this instance did not affect the reliability of the evidence.

Heuring next argues that the evidence of the prior battery was not proper Williams rule evidence. Similar fact evidence that the defendant committed a collateral offense is inherently prejudicial. Introduction of such evidence creates the risk that a conviction will be based on the defendant's bad character or propensity to commit crimes, rather than on proof that he committed the charged offense. Keen v. State, 504...

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135 practice notes
  • State v. Edward Charles L., No. 19004
    • United States
    • Supreme Court of West Virginia
    • July 27, 1990
    ...People v. Tassell, 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1 (1984); Getz v. State, 538 A.2d 726 (Del.1988); Heuring v. State, 513 So.2d 122 (Fla.App.1987), decision quashed on other grounds, 559 So.2d 207 (Fla.1990); Pendleton v. Commonwealth, 685 S.W.2d 549 (Ky.1985); Page 145 [183 W.Va......
  • Thomas v. State, No. 89-449
    • United States
    • Court of Appeal of Florida (US)
    • April 28, 1992
    ...to "share some unique characteristics or combination of characteristics which sets them apart from other offenses," Heuring v. State, 513 So.2d 122, 124 (Fla.1987), and such evidence is not relevant to prove any material fact in issue. Sec. 90.404(2)(a), Fla.Stat. (1987). In view of this di......
  • Flanagan v. State, No. 87-871
    • United States
    • Court of Appeal of Florida (US)
    • July 19, 1991
    ...of characteristics. Likewise, we do not agree with appellant's argument regarding the Supreme Court's holding in Heuring v. State, 513 So.2d 122 (Fla.1987). In Heuring, the court reversed the defendant's conviction because evidence of the defendant's molestations of children other than his ......
  • Robertson v. State, No. 3D98-2383.
    • United States
    • Court of Appeal of Florida (US)
    • March 28, 2001
    ...is one aspect of its relevance, its tendency to prove or disprove a material fact in issue." 741 So.2d at 1197. In Heuring v. State, 513 So.2d 122 (Fla.1987), the Florida Supreme Court stated that when faced with the claim that prior crimes are too remote to be relevant, the trial must cons......
  • Request a trial to view additional results
135 cases
  • State v. Edward Charles L., No. 19004
    • United States
    • Supreme Court of West Virginia
    • July 27, 1990
    ...People v. Tassell, 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1 (1984); Getz v. State, 538 A.2d 726 (Del.1988); Heuring v. State, 513 So.2d 122 (Fla.App.1987), decision quashed on other grounds, 559 So.2d 207 (Fla.1990); Pendleton v. Commonwealth, 685 S.W.2d 549 (Ky.1985); Page 145 [183 W.Va......
  • Thomas v. State, No. 89-449
    • United States
    • Court of Appeal of Florida (US)
    • April 28, 1992
    ...to "share some unique characteristics or combination of characteristics which sets them apart from other offenses," Heuring v. State, 513 So.2d 122, 124 (Fla.1987), and such evidence is not relevant to prove any material fact in issue. Sec. 90.404(2)(a), Fla.Stat. (1987). In view of this di......
  • Flanagan v. State, No. 87-871
    • United States
    • Court of Appeal of Florida (US)
    • July 19, 1991
    ...of characteristics. Likewise, we do not agree with appellant's argument regarding the Supreme Court's holding in Heuring v. State, 513 So.2d 122 (Fla.1987). In Heuring, the court reversed the defendant's conviction because evidence of the defendant's molestations of children other than his ......
  • Robertson v. State, No. 3D98-2383.
    • United States
    • Court of Appeal of Florida (US)
    • March 28, 2001
    ...is one aspect of its relevance, its tendency to prove or disprove a material fact in issue." 741 So.2d at 1197. In Heuring v. State, 513 So.2d 122 (Fla.1987), the Florida Supreme Court stated that when faced with the claim that prior crimes are too remote to be relevant, the trial must cons......
  • Request a trial to view additional results

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