Johnson v. State Of Fla., 4D08-3482.
| Decision Date | 21 July 2010 |
| Docket Number | No. 4D08-3482.,4D08-3482. |
| Parties | Kenneth JOHNSON, Appellant,v.STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
Kenneth Johnson was convicted of two counts of lewd or lascivious battery. The charges arose from a sexual relationship between Johnson, a 37-year old man, and a 13-year old girl. He appeals, arguing that the trial court erred by admitting evidence that the victim twice attempted to commit suicide after the relationship was revealed and the defendant was arrested. Because any probative value of this evidence was substantially outweighed by the danger of unfair prejudice, and the error in admitting it was not harmless, we reverse for a new trial.
Before trial, Johnson filed a motion in limine to exclude, among other items, “[a]ny and all evidence or testimony relating to the alleged victim being Baker Acted or attempting to commit suicide subsequent to Defendant's arrest.” At the hearing on the motion, the state argued that evidence that the victim tried to commit suicide the day Johnson was arrested and shortly after a phone conversation with him was inextricably intertwined because it showed the effect that Johnson had on her and the control he held over her. Defense counsel countered that any probative value of this evidence was substantially outweighed by the danger of prejudice.
In denying the motion in limine, the court concluded that evidence of the victim's suicide attempts was relevant and could be helpful to the defense, as well as to the state. The court commented:
I think it cuts right down the middle. It could show that she was in turmoil because of the allegations she made, that were allegedly on the defense's behalf untrue, or that they were true and now she has to come to court and she couldn't stand for it and couldn't be put through the embarrassment and she tried to hurt herself. So, it's relevant for both sides. So it's going to be allowed.
The victim testified at trial that she had a sexual relationship with the defendant, which began when she was 13 years old. The defendant was a neighbor and the father of friends of the victim. Sexual contact between the defendant and the victim took place at a lake, the defendant's house, and in a truck. 1 The victim said that the defendant gave her gifts and asked her to marry him. During direct examination, the prosecutor asked her how the relationship affected her:
The victim's mother also testified that the victim tried to kill herself twice and that both of these incidents were tied to her relationship with the defendant. She explained that the first attempt was after she met with police and told them about her sexual relationship with the defendant. The second attempt was after a phone call with the defendant.
The detective who interviewed the victim at the police department testified about one of the suicide attempts. She said that during the interview she told the victim about the defendant's arrest. Then, as the victim and her parents were leaving the police station and walking to their car, the victim suddenly ran away and started to run into traffic on a busy road. Two cars swerved around to avoid her, and two police officers grabbed and restrained her. Afterwards, the victim was involuntarily committed to a mental facility pursuant to the Baker Act.
In addition to the victim's testimony, other evidence adduced by the state to prove the sexual battery charges included testimony of the victim's sister. The victim's sister said she witnessed behavior between the defendant and the victim that strongly suggested there had been an inappropriate relationship between them. Such behavior included their isolating themselves from everyone and spending time alone in the defendant's truck and at the deep end of the swimming pool. The victim's sister testified that once she saw the defendant and the victim, with their top clothing removed, lying together on a bed in a back room of the defendant's trailer. She also testified that the victim confided in her that she and the defendant engaged in sexual activity at the lake.
The state also introduced recorded conversations between the defendant and his sons and between the defendant and the victim that indicated a sexual relationship. In a recorded conversation between the defendant and one son, the defendant displayed jealously upon hearing that the victim was spending time with a new boyfriend. In another recorded conversation, the defendant told the victim that if she recanted her accusations and emancipated herself from her parents, they could spend the rest of their lives together.
The jury found the defendant guilty as charged of two counts of lewd and lascivious battery. He was sentenced to 15 years on each count, with credit for 227 days time served. The defendant appealed.
On appeal, the defendant's sole contention of error concerns testimony that the victim twice attempted to commit suicide as a result of her sexual relationship with the defendant and was Baker Acted. The defendant argues that any probative value of this evidence was substantially outweighed by the danger of unfair prejudice. The state argues that even if admission of this evidence was error, such error was harmless.
“A trial court's decision to admit evidence is reviewed using the abuse of discretion standard of review, as limited by the rules of evidence.” Philippon v. Shreffler, 33 So.3d 704, 708 (Fla. 4th DCA 2010) (citing Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So.2d 753, 754 (Fla. 4th DCA 2008)). A court abuses its discretion when the decision is “ ‘arbitrary, fanciful, or unreasonable.’ ” Johnson v. State, 904 So.2d 400, 405 (Fla.2005) (quoting White v. State, 817 So.2d 799, 806 (Fla.2002)).
Evidence that tends to prove or disprove a material fact is relevant and admissible. §§ 90.401-90.402, Fla. Stat. (2008). Here, the trial court determined that evidence of the suicide attempts tended to do both: to prove and disprove the unlawful sexual conduct. The court found the evidence “relevant for both sides,” because, on the one hand, it suggested that the victim was telling the truth about the sexual relationship and, thus, could not face the embarrassment of a court trial; on the other hand, it showed that she was lying and thus in turmoil because of the false allegations. Under traditional concepts of relevancy, for evidence to be relevant, it must have a logical tendency to render a proposition more or less probable. Thus, if the evidence “cuts both ways,” its probative value is minimal at best.
Appellant argues that regardless of whether this evidence was relevant for some purpose, it should not have been admitted because its probative value was substantially outweighed by the danger of unfair prejudice. Indeed, “relevancy is not the only test for admissibility.” Taylor v. State, 855 So.2d 1, 21 (Fla.2003) (citing Sexton v. State, 697 So.2d 833, 837 (Fla.1997)). Under section 90.403, Florida Statutes (2008), even if evidence is relevant, it may be inadmissible if the “probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”
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