Kovaleski v. State, No. 4D06-1168.

CourtCourt of Appeal of Florida (US)
Writing for the CourtKlein
Citation1 So.3d 254
Docket NumberNo. 4D06-1168.
Decision Date05 January 2009
PartiesAnthony KOVALESKI, Appellant, v. STATE of Florida, Appellee.
1 So.3d 254
Anthony KOVALESKI, Appellant,
v.
STATE of Florida, Appellee.
No. 4D06-1168.
District Court of Appeal of Florida, Fourth District.
January 5, 2009.
Rehearing Denied February 20, 2009.

[1 So.3d 255]

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, J.


Appellant was convicted of two counts of lewd and lascivious acts involving a minor, and raises issues pertaining to his conviction and sentences. We address whether the victim could be cross-examined about a prior false accusation of sexual misconduct against another person, and whether the court erred in partially closing the courtroom during the minor victim's testimony. We affirm the convictions, but certify conflict on a sentencing issue involving credit for time served where there are multiple sentences.

The lewd and lascivious acts involved a fifteen-year-old male named J.L. who had become acquainted with appellant and appellant's wife, Missy, in 1996. After having a falling out with his mother, the minor moved in with the Kovaleskis and their three children. In November of that year, the minor had sex on several different occasions with Missy while appellant watched. In addition, appellant, Missy and the minor engaged in three-way sex. The minor testified he was in love with Missy, but ended their affair and moved out when he discovered Missy having sex with appellant's nephew. In addition to being upset at Missy, the minor was also upset with appellant for reporting the minor for failing to attend school. The minor reported appellant and Missy to the police three days after moving out.

Missy entered into a plea and, based on her testimony and the testimony of the minor, appellant was convicted of one count of lewd and lascivious behavior for having the minor's penis in his mouth, and on a second count for performing a sex act with Missy in front of the minor. He received two concurrent sentences of approximately twelve years. Both convictions were reversed in Kovaleski v. State, 854 So.2d 282 (Fla. 4th DCA 2003), and remanded for a new trial because the trial court had improperly closed the courtroom during the testimony of the minor without having a hearing to determine if it was necessary.

Appellant was re-tried in 2006 and at that trial Missy, who was divorced from appellant and remarried, testified as to her affair with the minor in 1996 as well as three-way sex involving her husband and the minor. She further testified that after she was arrested, she wore a recording device while speaking with her husband, and the following portion of the recorded conversation was played for the jury:

Mr. Kovaleski: Deny everything. The boy, just like we planned. We've got the letters. The boy was in love with you. We tried to help him. The boy fell in love with you. The day that [inaudible] I'll sit there and say look you know, I don't know what happened that day. I talked to Missy. I talked to

1 So.3d 256
J.L.] They both told me no. That's all I know. That's all I know to do

Ms. Kovaleski: So no matter what he says you're going to deny it.

Mr. Kovaleski: I'm going to deny it. Fuck, yeah, I'm going to deny it. What are you, crazy? I got kids to raise. Are you crazy? What choice do we have? It's not even open for discussion. You think I'm going to admit to sucking a dick to anybody?

In her testimony Missy acknowledged that she had an agreement with the state to enter a plea, testify against appellant, and receive a sentence of between twelve and thirty-five months incarceration. By the time she testified at the second trial she had served a one year sentence and was on probation.

Missy's sister, Teresa, also testified against appellant. She had been with Missy and appellant after Missy had been arrested, and appellant told Teresa about the sexual acts which were described above.

Another witness, M.A., a pregnant fourteen-year-old, who had lived at the Kovaleski house, but not at the same time as the minor, knew the minor from when they were younger. She testified that she had asked the minor if it was true that he and appellant had had sex, and he said no, but that he had had sex with Missy.

Appellant testified in his own defense and denied everything, including that what he said on the recorded conversation had anything to do with the minor. He testified that the comment about admitting to "sucking dick" was in reference to a person who had tried to molest him when he was eleven, and he further claimed that the tape recording had been altered, but could not explain how.

The first issue involves the cross-examination of the minor, when he testified in the state's case on rebuttal. The minor acknowledged he was a friend of M.A., but testified that he had never spoken with her about what had happened in this case. Appellant's counsel then asked: "Did you ever make an accusation about someone else having sex with you and later withdraw it?" The state objected on the ground that the question was beyond the scope of the minor's testimony, and the trial court sustained the objection, concluding it was improper impeachment, irrelevant, or extrinsic evidence of a collateral matter.

The state points out that no proffer was made as to the minor's answer to the question. Appellant's response is that there is an exception to the requirement that excluded evidence must be proffered, where the substance of the excluded testimony is apparent from the context in which it is offered. § 90.104(1)(b), Fla. Stat.; Reaves v. State, 531 So.2d 401 (Fla. 5th DCA 1988).

We agree with the state that a proffer was necessary under these facts, because the record is silent as to whether the minor had ever made such an accusation or withdrawn it. Nor is it clear, under the cases we discuss below, if such evidence would have been admissible.

In Washington v. State, 985 So.2d 51 (Fla....

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4 practice notes
  • Griffith v. Tucker, Case No.: 3:11cv288/MCR/EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 5 Julio 2012
    ...to object to the Court's instruction regarding who may remain in the courtroom during the victim's testimony. See Kovaleski v. State, 1 So. 3d 254 (Fla. 4th DCA 2009) (Holding that the findings required by Waller v. Georgia, 467 U.S. 39 (1984) do not apply to a partial closure under section......
  • Kovaleski v. State, No. SC09–536.
    • United States
    • United States State Supreme Court of Florida
    • 25 Octubre 2012
    ...FL, for Respondent.PERRY, J. Anthony Kovaleski seeks review of the decision of the Fourth District Court of Appeal in Kovaleski v. State, 1 So.3d 254 (Fla. 4th DCA 2009), on the ground that it expressly and directly conflicts with a decision of the Third District Court of Appeal, Alonso v. ......
  • Davis v. State, No. 4D17-3955
    • United States
    • Court of Appeal of Florida (US)
    • 16 Enero 2019
    ...the burden of demonstrating vindictiveness. Texas v. McCullough , 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Kovaleski v. State , 1 So.3d 254, 258 (Fla. 4th DCA 2009). We have declined to apply the presumption of vindictiveness when "a different trial judge sentence[s] appellant th......
  • Kenner v. State, Case No. 5D16–1192
    • United States
    • Court of Appeal of Florida (US)
    • 16 Diciembre 2016
    ...the defendant has the burden of showing vindictiveness when the second sentence is imposed by a different judge. Kovaleski v. State , 1 So.3d 254, 258 (Fla. 4th DCA 2009) ("A re-sentence after a reversal and re-trial which is more onerous than the original sentence is presumed vindictive wh......
4 cases
  • Griffith v. Tucker, Case No.: 3:11cv288/MCR/EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 5 Julio 2012
    ...to object to the Court's instruction regarding who may remain in the courtroom during the victim's testimony. See Kovaleski v. State, 1 So. 3d 254 (Fla. 4th DCA 2009) (Holding that the findings required by Waller v. Georgia, 467 U.S. 39 (1984) do not apply to a partial closure under section......
  • Kovaleski v. State, No. SC09–536.
    • United States
    • United States State Supreme Court of Florida
    • 25 Octubre 2012
    ...FL, for Respondent.PERRY, J. Anthony Kovaleski seeks review of the decision of the Fourth District Court of Appeal in Kovaleski v. State, 1 So.3d 254 (Fla. 4th DCA 2009), on the ground that it expressly and directly conflicts with a decision of the Third District Court of Appeal, Alonso v. ......
  • Davis v. State, No. 4D17-3955
    • United States
    • Court of Appeal of Florida (US)
    • 16 Enero 2019
    ...the burden of demonstrating vindictiveness. Texas v. McCullough , 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Kovaleski v. State , 1 So.3d 254, 258 (Fla. 4th DCA 2009). We have declined to apply the presumption of vindictiveness when "a different trial judge sentence[s] appellant th......
  • Kenner v. State, Case No. 5D16–1192
    • United States
    • Court of Appeal of Florida (US)
    • 16 Diciembre 2016
    ...the defendant has the burden of showing vindictiveness when the second sentence is imposed by a different judge. Kovaleski v. State , 1 So.3d 254, 258 (Fla. 4th DCA 2009) ("A re-sentence after a reversal and re-trial which is more onerous than the original sentence is presumed vindictive wh......

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