Lewis v. State, 93-2435
| Decision Date | 03 May 1995 |
| Docket Number | No. 93-2435,93-2435 |
| Parties | 20 Fla. L. Weekly D1074 Grady Lunde LEWIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
We grant the motion for clarification, withdraw our previous opinion and substitute the following in its place to correct a clerical error.
In this appeal from a conviction for two counts of indecent assault we consider whether the trial court erred in admitting evidence of prior similar bad acts by the accused. We conclude that the prior acts were not sufficiently similar and were error to admit. We also conclude that the error was not harmless.
This case arises out of lewd acts that occurred in the presence of three children when they were playing outside of their homes on an October evening. The three children were walking a dog when a man in a car called one of the girls over and asked her for directions to Sunrise Boulevard. He asked whether she wanted "to make five bucks." She then glanced into the car and saw the man playing with his exposed penis. One of the other little girls approached the car a few moments later, and the man also asked her for directions and whether she wanted to make five dollars. She walked away from the car, but in walking to a friend's house, she passed the car again and observed the man touching the outside of his pants, rubbing his hands up and down on his penis.
Several other children testified who had been in the area. Their testimony conflicted on the color of the car, the type of license plate, and what was on the seat inside the car. More importantly, the two victims' testimony conflicted. One of the girls testified that the man was wearing shorts, while the other testified that he had on long pants. All of the children remembered that the man did not have a beard. However, when appellant was arrested five days after the incident, the arresting detective testified that he had a full beard. While the children identified the appellant in a photographic lineup, at least one of them testified at her deposition that she could be wrong about her identification.
During the course of the trial the state was permitted to elicit evidence of a prior similar bad act. A young girl from North Carolina testified that approximately a year before she was rollerblading in her home town in North Carolina when a man asked her for directions to a store. She gave the man directions, but he indicated that he did not understand. After she wrote the directions down for the man, he mumbled "five dollars" and asked her if she would like to make some money. She responded "no". The man then asked if she had ever seen a man. At that she skated away. She went to the police station where she identified appellant as the man in the car. However, in the courtroom in Florida, she could not identify appellant as the man who had approached her. On cross examination, she admitted that the man in the car in North Carolina neither had his clothes off nor touched his private parts. Her mother was also called to the stand and identified appellant as the man her daughter saw, although she indicated that he had gained a lot of weight and had darker hair. Over defense objection, this evidence was admitted by the court.
When the material issue in the case is identity, mere general similarity of incidents will not render the similar crime admissible. There must be identifiable points of similarity showing such a unique combination of characteristics that it leads to a conclusion that only the accused would have committed both crimes. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Crump v. State, 622 So.2d 963, 967-968 (Fla.1993).
State v. Maisto, 427 So.2d 1120 (Fla. 3d DCA 1983), illustrates the difference between admissible similar acts and inadmissible similar acts. The victim in Maisto, a nine-year-old girl, was approached at a shopping center by a middle-aged white man who asked the victim if she had seen his poodle. He then gave her money to help him search for the dog. She agreed to accompany him. They left the shopping center. The assailant then asked the little girl to urinate on a towel, stating that was how his own daughter could find the dog. When she refused, the man ordered the victim to take her clothes off. She removed one of her legs from her jeans. The assailant then asked the victim to help him urinate. After pulling down his pants, he instructed the victim to move her hand up and down on his genitals until he ejaculated into a towel. Once this was accomplished, he put his clothes back on and drove the victim back to the mall. The victim identified Maisto as her assailant.
The state attempted to introduce two collateral acts in the proceedings. In the first, the victim was approached at a mall and asked to help find a poodle. The man also asked her to urinate on some boxes and referred to similar conduct by his daughter. The victim of this incident also identified Maisto as her assailant.
The second collateral incident involved a young girl...
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