McLean v. State, 2D02-1322.

• Decision Date: 05 September 2003
• Docket Number: No. 2D02-1322.,2D02-1322.
• Citation: 854 So.2d 796
• Parties: Ronald McLEAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

854 So.2d 796

Ronald McLEAN, Appellant, v. STATE of Florida, Appellee.

No. 2D02-1322.

District Court of Appeal of Florida, Second District.

September 5, 2003.

James Marion Moorman, Public Defender, and James C. Banks, Special Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Chief Judge.

Ronald McLean appeals his judgment and sentence for lewd molestation. We affirm, holding that section 90.404(2)(b), Florida Statutes (2001), which expands the use of Williams¹ rule evidence in child molestation cases, does not violate due process, at least in cases where the identity of the accused perpetrator is not an issue. We also hold that the trial court's reliance upon this rule of evidence did not result in an ex post facto application of a statute and that the trial court did not abuse its discretion in admitting certain Williams rule evidence pursuant to this statute. Finally, we certify a question concerning the constitutionality of this new statute to the Supreme Court of Florida.

I. A STATEMENT OF THE CASE

Mr. McLean was charged with capital sexual battery² and lewd molestation³ for events occurring on October 19, 2000. On that evening, Mr. McLean was visiting his brother, Gerald McLean. Gerald McLean's grandson, J.N., was also visiting that night. J.N. was eight years old at the time and lived near his grandparents. J.N. and his grandfather regularly watched wrestling on television on Thursday nights and J.N. would stay over at his grandparents' home. On October 19, J.N.'s grandmother put him to bed around 9 p.m. Shortly thereafter, both grandparents went to bed.

At approximately 11 p.m., J.N. awoke his grandmother and announced that he wanted to go home. He was fully dressed and had his knapsack packed. He seemed nervous, but he did not say anything to his grandmother. She drove J.N. home about 11:15 p.m.

J.N.'s mother worked an early morning shift. When she returned from work in the early afternoon, she asked him why he had decided to come home the previous night. She was not permitted to provide hearsay testimony concerning this conversation but explained that the conversation caused her to report the matter to law enforcement.

On the Monday following these events, Amy Wilkins, a case coordinator for the Children's Home Society, interviewed J.N. She had prior training and experience in interviewing children who report sexual abuse. J.N. told her that he woke up during the night at his grandparents' house. His "Uncle Ron" was rubbing J.N.'s bottom. J.N. explained that Mr. McLean inserted his finger into J.N.'s bottom, but he did not specify that Mr. McLean inserted his finger into J.N.'s anus. J.N. claimed that his uncle told him not to report this incident to anyone. A medical examination performed at the time of this investigation did not reveal any physical evidence of sexual abuse.

J.N. was nine years old at the time of trial. After a lengthy examination to determine his competency, the trial court allowed J.N. to testify. His testimony was consistent with the information he had previously provided to Ms. Wilkins.

Mr. McLean made no incriminating statements, and he did not testify at trial. Thus, the statements made by J.N. at the time of the alleged incident and his testimony at trial were the primary evidence against Mr. McLean.

To strengthen the testimony from J.N., the State sought to introduce Williams rule evidence from a Mr. Chambers. At the time of the pretrial Williams rule hearing, Mr. Chambers was twenty-seven years old and lived out of state. He testified that, when he was younger, Mr. McLean had repeatedly molested him.

When he was a child and lived in Pennsylvania, Mr. McLean worked with Mr. Chambers' father in a factory. Mr. McLean often spent time with the Chambers' family. In 1986, when Mr. Chambers was twelve years old, Mr. McLean went on a hunting trip with Mr. Chambers and his father. On the first night of this trip, Mr. Chambers awoke to find Mr. McLean pressing his penis against Mr. Chambers' back and touching him under his underwear. Mr. McLean also touched Mr. Chambers' penis. Mr. McLean had been drinking prior to this event. Mr. Chambers pushed him away and went back to sleep. Later that same night, Mr. McLean returned and continued this conduct until Mr. Chambers ejaculated.

Mr. Chambers testified that several months later similar conduct occurred at his family's "mini-farm." Again, this conduct occurred after Mr. McLean had been drinking. On this occasion, Mr. McLean attempted to penetrate Mr. Chambers' anus with his penis. Mr. Chambers did not recall Mr. McLean fondling his bottom. Within a few months, similar conduct occurred when Mr. Chambers was at Mr. McLean's house.

Finally, on two more occasions, Mr. McLean assaulted Mr. Chambers while he was sleeping in a bedroom in Mr. Chambers' home. On one of these occasions, Mr. Chambers believed that Mr. McLean's penis penetrated his anus. On both of these occasions, Mr. McLean was a guest staying overnight in the home. By the final occurrence, Mr. Chambers was fourteen years old.

Mr. Chambers ultimately reported this conduct to his mother. He testified that his mother and father confronted Mr. McLean, who confessed to these crimes. They agreed not to report the matter to the police so long as Mr. McLean sought help from their church's minister. Mr. Chambers did not see Mr. McLean again until he testified at this trial, did not know the victim in this case, and had never met the victim's family prior to this trial.

Following this testimony, the trial court considered argument by counsel, as well as its own extensive, independent research. The lawyers relied upon the existing Williams rule case law, as well as section 90.404(2)(b), a new statute addressing Williams rule evidence in child molestation cases. The trial court concluded that in enacting section 90.404(2)(b), the legislature was attempting to overrule or modify the supreme court's rulings in Saffor v. State, 660 So.2d 668 (Fla.1995), and Heuring v. State, 513 So.2d 122 (Fla.1987). It also concluded that the legislature intended section 90.403, Florida Statutes (2001), to affect the admissibility of evidence under section 90.404(2)(b), so that a trial court must evaluate Williams rule evidence to determine whether its probative value outweighs its prejudicial effect. The trial court expressed its concern that the Williams rule evidence could cause the jury to convict Mr. McLean for the earlier alleged offenses if it had doubt about the charged offense. The discussion among the two lawyers and the trial judge is a model of professionalism; each lawyer advocating a position while assisting the court in its effort to reach a correct decision.

Ultimately, the trial court decided that section 90.404(2)(b) applied in this case and that the statute was constitutional. The trial court determined, however, that pursuant to section 90.403 it would be overly prejudicial to admit all of Mr. Chambers' testimony. The trial court concluded that the hearsay evidence of Mr. McLean's confession to Mr. Chambers' parents and evidence of all events occurring in locations other than Mr. Chambers' home should be excluded. Following the ruling, the trial court stated: "I'm sure we will find out later what this all means."

As a result of this ruling, the jury heard the evidence relating to the two incidents occurring in Mr. Chambers' home, but it did not hear evidence concerning Mr. McLean's confession, the events at the camp-out, the mini-farm, or at Mr. McLean's house. Prior to this testimony, the trial court gave the standard limiting and cautionary instruction regarding Williams rule evidence. See Fla. Std. Jury Instr. (Crim.) 2.4. This instruction was repeated as a portion of the final charge. See Fla. Std. Jury Instr. (Crim.) 3.8(a). A full review of the transcript establishes that the State did not make this evidence a central feature of this trial during either the evidentiary portion of the trial or closing argument.

The jury convicted Mr. McLean of both attempted capital sexual battery and lewd molestation. Ultimately, the trial court denied a motion for new trial. It entered judgment only on the charge of lewd molestation.⁴ Mr. McLean was sentenced to thirty years' imprisonment and designated a sexual predator.

II. THE NINE-YEAR-OLD VICTIM'S COMPETENCY TO TESTIFY

On appeal, Mr. McLean first argues that the trial court erred in determining that J.N. was competent to testify. Both of the lawyers and the trial judge asked many questions of J.N. during the competency determination. The trial court made findings at the conclusion of this presentation, and Mr. McLean's counsel did not request more specific findings. We conclude that the trial court complied with the requirements of Lloyd v. State, 524 So.2d 396 (Fla.1988), and Fuller v. State, 669 So.2d 273 (Fla. 2d DCA 1996). Its decision does not constitute an abuse of discretion. See Palazzolo v. State, 754 So.2d 731, 738 (Fla. 2d DCA 2000)

. It is noteworthy that the transcript of J.N.'s testimony following this determination of competency does not demonstrate any weakness, confusion, or circumstance that would suggest the trial court erred in deciding the issue of competency.

III. CHALLENGES TO SECTION 90.404(2)

Mr. McLean next argues that section 90.404(2)(b) is unconstitutional as a violation of due process. He further argues that application of the rule in his case violates the prohibition against applying laws ex post facto. Finally, he argues that the trial court erred in applying this statute even if it is constitutional. Section 90.404(2)(b) is a relatively new rule of evidence. See ch.2001-221, § 1 at 1938, Laws of Fla. This court has not previously addressed its validity or application. We conclude that the statute is constitutional, at least in a case not...