Lewis v. State

• Decision Date: 21 November 1990
• Docket Number: No. 89-1684,89-1684
• Parties: 15 Fla. L. Weekly D2863 Cornelius Ray LEWIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 412

570 So.2d 412

15 Fla. L. Weekly D2863

Cornelius Ray LEWIS, Appellant, v. STATE of Florida, Appellee.

No. 89-1684.

District Court of Appeal of Florida,

First District.

Nov. 21, 1990.

Laura E. Keene of Beroset & Keene, Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen. and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Appellant Cornelius Ray Lewis appeals his conviction after jury trial, and his forty year guidelines sentence for two counts of lewd and lascivious assault upon a child, and five counts of sexual activity with a child less than eighteen years of age while standing in a position of familial or custodial authority. The issues presented for review are (1) whether the trial court improperly restricted appellant's ability to establish bias, prejudice or motive through cross-examination of the victim; and (2) whether the state presented sufficient evidence to support appellant's conviction as to each count charged. We affirm.

The alleged victim in this case is appellant's stepdaughter, who was fifteen years old when the charged offenses allegedly occurred. The victim's testimony at trial indicated that she began living with her natural mother and appellant in August 1986. Prior to that time, the victim lived with her natural father and stepmother. The victim testified that from August 1986 until December 1987, she got along fairly well with appellant. The victim stated, however, that in December 1987, appellant, in effect, told her that he wanted to engage in sexual activity with her. The victim further stated that when she responded negatively, appellant did not approach her again until June 29, 1988. On that date, appellant purportedly told the victim again that he wished "to mess with her," and then commenced the sexual activity alleged.

According to the victim, each of the charged offenses occurred in her bedroom, while her mother was at work. During direct examination, the victim described the specifics of the sexual activity appellant engaged in with her, beginning June 29, 1988, and continuing until October 24, 1988, when the victim reported the matter to her grandmother. According to the victim, she did not report the incidents to her mother, because she did not think her mother would believe her. Finally, on October 24, 1988, the victim called her grandmother from school and reported the incidents to her, because she realized appellant "wasn't going to stop doing it."

During cross examination, defense counsel was permitted to question the victim about her sixteen year old boyfriend. Defense counsel also elicited testimony which revealed that the victim's mother and stepfather, i.e., appellant, had discovered and read letters which the victim had written to her boyfriend. Due to the content of those letters, the victim was placed on restriction for a month, and was told that her parents did not wish her to continue to see the young man. In addition, defense counsel established that the victim's mother and appellant had told the victim that she could not have an automobile.

Additional testimony of the victim was proffered by the defense out of the presence of the jury. The proffered testimony indicated that (1) the victim first engaged in sexual intercourse with her boyfriend in May 1988; (2) her mother and appellant reprimanded her for the sexually explicit language contained in the letter to her boyfriend; (3) after appellant began engaging in sexual activity with her in June 1988, he allowed her to go out with her boyfriend whenever she wished; and (4) appellant persuaded her mother that she [the victim] should undergo a physical examination, which examination would reveal that she was sexually active. In addition, the victim's proffered testimony indicated that appellant attempted to persuade the victim's mother that the victim should be placed on an oral contraceptive. The victim stated that she was not concerned about having the physical examination, but acknowledged she had not told her mother that she was sexually active with her boyfriend, despite her mother's questions on the subject. During the trial proffer and also in her earlier deposition, the victim explained that she was able to be specific concerning the date of the first occurrence of sexual activity with appellant, because she had written a note to her boyfriend after it happened. Some months later, when the victim reported appellant's conduct to her grandmother and then to investigators, her boyfriend showed her the note she had written when the first incident occurred, thereby establishing the precise date of onset of the activity.

At the conclusion of the proffer, defense counsel argued that the testimony was relevant to the victim's motive to accuse appellant of sexual misconduct. The prosecutor argued the testimony was not relevant, because the defense had already established that the victim had a boyfriend, that her parents did not approve of her boyfriend, and that the victim had been placed on restriction because of the letter she had written to her boyfriend. The prosecutor further argued that the testimony was not offered to establish motive, but as an attack on the victim's character.

The trial court's ruling on the proffered testimony is phrased in terms of its relevance. The trial court determined that the defense had been afforded adequate opportunity to establish motive or bias on the part of the complaining witness, in that the defense had shown (1) the victim's relationship with her boyfriend, (2) her family's disapproval of her activities, and (3) that the victim had been chastised for writing letters to her boyfriend. The record reflects that respective counsel debated the possible applicability of Florida's rape shield statute, see § 794.022, Fla.Stat. (1987), to prosecutions for violations of sections 794.041 and 800.04, Florida Statutes, the offenses charged in this case. In determining to exclude the proffered testimony, the trial court decided the issue on relevancy grounds, as do we, and did not rely upon the rape shield statute as such. However, we note that section 794.022(2) and (3) has been held to be an explicit statement of the rule of relevancy as it applies to the prior sexual conduct of a sexual battery victim. See Roberts v. State, 510 So.2d 885, 892 (Fla.1987), cert. denied, 485 U.S. 943, 108 S.Ct. 1123, 99 L.Ed.2d 284 (1988); Marr v. State, 494 So.2d 1139 (Fla.1986); Kaplan v. State, 451 So.2d 1386 (Fla. 4th DCA 1984). Therefore, our analysis of this issue necessarily takes into account cases decided under the provisions of section 794.022, the rape shield statute.

Admissibility of all evidence is governed by its relevance. Whether a fact is relevant and thus admissible, is controlled by section 90.401, which states that "[r]elevant evidence is evidence tending to prove or disprove a material fact." See Toler v. State, 457 So.2d 1115, 1117 (Fla. 1st DCA), petition for review dismissed, 461 So.2d 116 (Fla.1984); Brown v. State, 426 So.2d 76, 78 (Fla. 1st DCA 1983); Francis v. State, 512 So.2d 280, 281 (Fla. 2d DCA 1987); Trees By and Through Trees v. K-Mart, 467 So.2d 401, 402-403 (Fla. 4th DCA 1985); review denied, 479 So.2d 119 (Fla.1985). Otherwise relevant evidence may be inadmissible under section 90.403, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence." A broad discretion rests with the trial court to determine whether the probative value of evidence sought to be admitted is substantially outweighed by any of the reasons enumerated in the statute. State v. McClain, 525 So.2d 420 (Fla.1988); Demps v. State, 395 So.2d 501, 505 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Taylor v. State, 508 So.2d 1265 (Fla. 1st DCA), review denied, 518 So.2d 1278 (Fla.1987); State v. Wright, 473 So.2d 268 (Fla. 1st DCA 1985), review denied, 484 So.2d 10 (Fla.1986); Nelson v. State, 395 So.2d 176 (Fla. 1st DCA 1980). In other words, it is the trial court's obligation and prerogative to weigh the proffered evidence against other facts in the record, balancing it against the strength of the reason for exclusion. See Ehrhardt, Florida Evidence § 403.1 (2d Ed.1984). Where the trial court has weighed probative value against confusion of issues, the decision to admit or exclude evidence will not be disturbed on appeal absent a showing of abuse of discretion. Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Mikenas v. State, 367 So.2d 606 (Fla.1978); State v. Wright, 473 So.2d at 269; Kemp v. State, 464 So.2d 1238 (Fla. 1st DCA 1985).

A material fact at issue in this case was whether the victim was motivated to fabricate allegations that she had been sexually abused by her stepfather. The defense sought to assert that the victim accused appellant of sexually abusing her, rather than admit to her mother that she had been sexually active with her boyfriend, evidence of which would be revealed by a gynecological examination. In this vein, appellant contends the trial court's refusal to submit the proffered testimony to the jury completely foreclosed cross-examination of the state's primary witness regarding her precise motive to fabricate allegations about appellant. Appellant further asserts that the state failed to prove the essential elements of all the charged offenses, with the exception of one sexual battery charged in count three of the amended information.

It is, of course, fundamental that a criminal defendant has a constitutional right to full and fair cross-examination to show a witness's possible bias or motive to be untruthful. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Marr v. State, 494 So.2d 1139, 1143 (Fla.1986); Jackson v. State, 468 So.2d 346 (Fla. 1st DCA 1985); Lavette v. State, 442...