Maddry v. State, 90-1859

• Decision Date: 08 August 1991
• Docket Number: No. 90-1859,90-1859
• Citation: 585 So.2d 359
• Parties: 16 Fla. L. Weekly D2089 William A. MADDRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 359

585 So.2d 359

16 Fla. L. Weekly D2089

William A. MADDRY, Appellant, v. STATE of Florida, Appellee.

No. 90-1859.

District Court of Appeal of Florida,

First District.

Aug. 8, 1991.

Rehearing Denied Oct. 2, 1991.

William R. Slaughter, II, of Slaughter and Slaughter, Live Oak, for appellant.

Robert A. Butterworth, Atty. Gen., and Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.

MINER, Judge.

Arguing that the trial court abused its discretion in admitting so-called Williams rule testimony, appellant challenges his convictions on three counts of sexual battery of his 13 year old daughter while in a position of familial authority. Finding that this issue was not preserved for appellate review, we affirm appellant's convictions.

Prior to appellant's trial, the state filed notice that it intended to introduce evidence that while in a position of familial authority over her, appellant engaged in sexual activity with one K.S., his 17 year old illegitimate daughter. Defense counsel filed a motion in limine to exclude such testimony. At a hearing on the motion, counsel argued that there was no competent evidence to show that appellant was in fact the biological father of K.S., without which showing such testimony would be inadmissible as demonstrating only propensity and bad character and, further, that there was no evidence to show that the sexual conduct described by K.S. was illegal under the laws of New York or Pennsylvania, the states where such conduct was alleged to have taken place. Counsel concluded:

The bottom line is, we don't believe that there's been a sufficient showing of family, nor has there been a sufficient showing that this man was in a position of familial or custodial authority during the relevant period of time testified to by [K.S.].

The trial court rejected counsel's "family" arguments and, on the record, ruled that such testimony would be admitted and spelled out its reasoning for the ruling. K.S. testified at trial in accordance with the state's notice.

On appeal, Maddry's appellate counsel argues that K.S.'s testimony was "not relevant to any material issue, nor did the testimony reveal any factual or characteristic similarity between [K.S.'s] sexual encounter with the Appellant and the alleged sexual activity of the Appellant with the victim, nor did the testimony serve to corroborate the testimony of the victim."

Appellant's arguments on appeal are wholly different than those made by defense counsel below. Indeed, the arguments advanced below are not urged before us. An appellate court will consider the grounds or objections to the admissibility of evidence as were specifically made in the trial court and cannot consider those objections to admissibility of evidence which are raised for the first time on appeal. See Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656 (1903); Lineberger v. Domino Canning Co., 68 So.2d 357 (1953); Chaudoin v. State, 118 So.2d 569 (Fla. 2d DCA 1960); Jennings v. Stewart, 308 So.2d 611 (Fla. 3d DCA 1975); and Tabasky v. Dreyfuss, 350 So.2d 520 (Fla. 3d DCA 1977). Here, the record clearly reflects that appellant's only arguments below against the admissibility of the challenged evidence are arguments going to what he must have believed to be the proper predicate for its admission, i.e. failure to show as a condition precedent to its admission that appellant was K.S.'s biological father and that the conduct K.S. described was against the law in New York and/or Pennsylvania. Counsel did not argue lack of relevance to prove or disprove a material fact or lack of similarity or that such evidence was not corroborative of the victim's testimony. Such objections as counsel did make were properly overruled by the court and the fact that the court grounded its pre-trial ruling on bases not argued by counsel does not relieve appellant of the consequence of his failure to state the proper grounds for his objection below.

Thus, having failed to raise the proper grounds for his objection to the challenged evidence below, he is precluded from raising any new grounds or objections for the first time on appeal. Accordingly, his convictions are affirmed.

NIMMONS, J., concurs.

BARFIELD, J., dissents with opinion.

BARFIELD, Judge, dissenting:

I would find that the trial court abused its discretion in allowing K.S. to testify to sexual relations with appellant. It is clear from the record that the issue of the lack of similarity between this Williams ¹ rule evidence and the facts of the case at issue was raised and ruled upon below.

The thirteen-year-old victim's stepmother, appellant's now estranged wife and the mother of his two youngest daughters, corroborated the victim's testimony regarding one of the three alleged incidents. However, the testimony of several relatives that the victim had recanted her accusations as lies intended to get her stepmother to leave, a letter from the victim to her grandmother to that effect, and the testimony of a neighbor that the victim had asked for her help in getting the stepmother to leave, placed the victim's credibility at issue.

The state gave notice that it intended to introduce evidence that in May and June 1985, while in a position of familial authority, appellant had engaged in sexual activity with K.S., his illegitimate daughter. At the hearing on appellant's motion in limine, K.S. testified that she was born in Missouri on August 25, 1967. After her mother died in 1980, an aunt told her that her real father was not her mother's husband, but a truck driver named Bill Maddry. When she was fifteen, she went looking for her father. When she was seventeen, she accepted a ride with appellant at a truck stop near Rochester, New York. She travelled with him for several weeks, ending up in Rochester on July 7, 1985. She then sent for her personal effects from Missouri, which included a photo album. After recognizing pictures of her mother and brother, appellant told her that he was her father. Afterwards, they continued to live together and to have sexual relations.

On cross-examination, K.S. testified that she and appellant lived together for about a month in Rochester in March 1985, that appellant had acted like a father, and that after he admitted being her father, he told her that he "wanted to be a father figure to me and still have sex with me." On redirect, she testified that she had recently spoken to appellant by telephone and had told him she was thinking of getting married, whereupon he told her "if I needed a father for my kids, he would be a father for my kids."

Appellant's counsel argued that her testimony was not admissible because appellant was charged with sexual activity while in a position of familial or custodial authority, but there was no competent evidence that he was the biological father of K.S., and "if in fact she is not the child of Mr. Maddry, then her testimony does nothing more than show propensity and bad character on behalf of Mr. Maddry." He also asserted that there was no showing "that the conduct, the sexual conduct described by [K.S.] was illegal where it took place," arguing that there was no showing of what the law was in New York and Pennsylvania. He concluded, "The bottom line is, we don't believe that there's been a sufficient showing of family, nor has there been a sufficient showing that this man was in a position of familial or custodial authority during the relevant period of time testified to by [K.S.]."

The State cited several cases in which the courts applied an "expanded" Williams rule in child sexual battery cases, arguing that "the judge merely must decide is there enough evidence that the jury, if believing Williams' Rule victims, could find that the activity took place." Defense replied that there had been no competent showing of family, "the gravamen of this whole thing." The trial court found:

[T]he evidence sought is more than solely to prove the defendant's bad character and propensity, and it is relevant to prove material facts in this issue, and further that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendant and it is not needless presentation of cumulative evidence and that the evidence does tend to establish motive, intent, preparation, plan, knowledge, modus operandi, and along those lines, and the court will allow the testimony.

The court acknowledged defense counsel's standing objection to all trial testimony of the witness.

Appellant testified that he had never engaged in sexual activity with the victim, that she and his wife had fought a lot after she came to live with them in 1988, that "it's a good possibility" that K.S. is his daughter, and that "there was no physical contact between that girl and myself, once I realized there was a possibility she was my daughter." The jury found appellant guilty of three counts of sexual battery by a person in familial authority. He was sentenced to consecutive ten and twelve year terms of imprisonment.

Appellant's counsel argues that the testimony of K.S. should not have been allowed because it "was not relevant to any material issue, nor did the testimony reveal any factual or characteristic similarity between [her] sexual encounters with the Appellant and the alleged sexual activity of the Appellant with the victim, nor did the testimony serve to corroborate the testimony of the victim." He argues that the "sole and singular effect" of the testimony "was to prove bad character and propensity on the part of the Appellant" and that this deprived appellant of a fair trial.

The State urges this court to consider the proffered testimony in determining whether the trial court erred in denying the motion in limine, and argues that this testimony was relevant to corroborate the victim's testimony, citing Heuring v. State, 513 So.2d 122 (Fla.1987), and Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), rev. den., 529 So.2d 693 (Fla.1988),...