Morman v. State, 2D00-2948.

• Decision Date: 20 February 2002
• Docket Number: No. 2D00-2948.,2D00-2948.
• Citation: 811 So.2d 714
• Parties: Marvin MORMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

811 So.2d 714

Marvin MORMAN, Appellant, v. STATE of Florida, Appellee.

No. 2D00-2948.

District Court of Appeal of Florida, Second District.

February 20, 2002.

Rehearing Denied April 5, 2002.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Danilo Cruz Carino, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Marvin Morman appeals his convictions for four counts of lewd and lascivious act on a child¹ and his sentences of twenty years for each count to be served concurrently. He argues that the trial court erred by permitting the introduction of similar fact testimony,² by imposing multiple convictions in violation of the prohibition against double jeopardy,³ and by improperly scoring victim injury points without such fact being found by the jury. We affirm in part and reverse in part.

The amended information charged Mr. Morman with the improper handling or fondling of K.T.J., a female under the age of sixteen years. These criminal acts allegedly took place on Friday, April 30, and Saturday, May 1, 1999. Specifically, the amended information charged that Mr. Morman committed two of the crimes, touching of the genital and/or buttock area and touching of the breast area, on April 30, and touching of the breast area and the genital area again the following day.

In her testimony, K.T.J. described two episodes when Mr. Morman, a distant cousin of hers, improperly touched her while they both were visiting overnight in the home of K.T.J.'s uncle. The first took place while she was lying on a couch on Friday evening. That evening, Mr. Morman sat next to her and while moving his hands up and down over her person, touched her "butt" under her hips, and felt and squeezed her breasts. She ended the episode by walking away. These acts were apparently the basis for the first two counts of the information. The second episode she described took place the following day in the bathroom. K.T.J. testified that during this episode Mr. Morman sat her on the counter and, while holding her there, rubbed his body up and down against her. Although both were clothed, she felt his hard penis touch her vaginal area while he also squeezed her chest. After about ten minutes the episode ended. These acts were the basis for the third and fourth counts. The similar fact witness, Ms. Latonya Polite, was twenty-one years old at the time she testified at Mr. Morman's trial. She testified that when she was nine years old, Mr. Morman, her mother's live-in boy-friend at the time, fondled her vaginal area several days a week during a period of several months. Mr. Morman would, while sitting on a bed, pull her to him and, while rubbing his erect penis against her vaginal area, also rub her bottom. On other occasions, she would awaken to find him pressing against her while squeezing her buttocks. He also would fondle her while in the bathroom. These incidents often lasted about ten minutes.⁴ Mr. Morman objected to admitting the similar fact evidence, contending that the evidence did not meet the standard of relevance for admission and that the alleged acts against K.T.J. did not occur in a familial context. The trial court overruled his objections.

Double Jeopardy

K.T.J.'s testimony clearly established two separate episodes of criminal conduct, one on Friday evening and the other the following day. Mr. Morman challenges whether these two episodes can be further divided into multiple offenses based upon his fondling of different areas of the body during each episode. He argues that such subdividing of an episode into multiple lewd and lascivious offenses offends the guarantee against double jeopardy. Section 800.04(1), Florida Statutes (1997), the version of the statute under which he was prosecuted, states that a person who handles, fondles, or assaults any child under the age of sixteen years in a lewd, lascivious, or indecent manner commits a felony. We must determine, under these facts, the appropriate "unit of prosecution" in this context. Sanabria v. United States, 437 U.S. 54, 66, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).

Recently, a similar issue arose in Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001), where the court was required to determine whether the unlawful touching of a victim's breasts and the fondling of her vagina in a single episode could sustain two convictions for a lewd assault. In concluding that only one conviction was proper, the court focused upon the "spatial and temporal aspects of the multiple occurrences." Id. at 1095. Because the events took place within one episode without a break in time for the defendant to form a second criminal intent, the court concluded only one crime had transpired.

A similar contention challenging multiple acts of sexual battery was addressed in Saavedra v. State, 576 So.2d 953 (Fla. 1st DCA 1991),approved, 622 So.2d 952 (Fla. 1993). In trial in Saavedra, the State argued that each sexual battery occurred at a different location and time⁵ and that in between each, the defendant had time to pause and reflect before again sexually battering the victim. Based on such facts, the State concluded, three separate offenses had occurred and, thus, double jeopardy principles were not violated. The First District agreed and held that although the criminal acts complained of were of the same type and character, they were sufficiently separated by time and location so that double jeopardy was not involved. Id. at 956.

Some further guidance can be obtained from the Florida Supreme Court's opinion in State v. Hightower, 509 So.2d 1078 (Fla.1987). "As now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious." Id. at 1079. Thus, we conclude that the statute's focus is on conduct involving sexual activity and not upon the individual acts that comprise lewd and lascivious activity in the same spatial and temporal zone.⁶ Here, there were two episodes of inappropriate sexual activity for which Mr. Moorman may be punished, the conduct occurring on Friday evening on the couch, and the conduct occurring on Saturday in the bathroom. Within each day's episode there was practically simultaneous touching of two proscribed areas (breast and buttocks areas on Friday, and breast and genital areas on Saturday). Thus, the various lewd and lascivious acts were not sufficiently discrete for them to be deemed separate offenses within each episode. Upon remand, the court must strike two convictions as violating double jeopardy.

Similar Fact Evidence

In admitting the testimony of the similar fact witness, Ms. Polite, the trial court found a familial context or relationship between Mr. Morman and K.T.J. and, therefore, used the relaxed standard of Heuring v. State, 513 So.2d 122 (Fla.1987). The existence of a familial relationship depends on the particular facts of a case. State v. Rawls, 649 So.2d 1350, 1352 (Fla. 1994). No single definition of the term suffices. The trial court must consider consanguinity and affinity, the existence of a recognizable bond of trust between the child and the adult, and the adult's ability to exercise custodial authority over the child. Id. at 1353.

Here, although there is a remote degree of familial consanguinity, we find it too remote to be of any moment. Furthermore, Mr. Moorman was not exercising custodial authority over K.T.J., nor did the record evidence demonstrate a recognizable bond of trust between the two. In fact they had met for the first time earlier that week. Therefore, it was error to conclude that a familial relationship existed and to admit, on that basis, similar fact evidence as permitted by Heuring.⁷

Using the nonfamilial context standard for admitting similar fact evidence, we must still determine whether Ms. Polite's evidence was nevertheless admissible. Traditionally, as the supreme court in Heuring noted, the similar fact evidence must meet a strict standard of relevance; the charged and collateral offenses must be "not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses." Heuring, 513 So.2d at 124. Generally, section 90.404(2)(a), Florida Statutes (1997), requires that the evidence must be "relevant to a material fact such as identity, intent, motive, opportunity, plan, knowledge, or absence of mistake or accident." Farrill v. State, 759 So.2d 696, 699 (Fla. 2d DCA 2000). Identity is not an issue in Mr. Morman's case, so our analysis must focus on the other valid purposes of the similar fact evidence. The alleged acts of abuse, the surrounding events, the factors affecting reliability, the gender and ages of the victims, the location of the assaults, the duration of the defendant's acts, and the manner of the assaults lead us to conclude that the trial court did not abuse its discretion in admitting the similar fact evidence. Jones v. State, 728 So.2d 788 (Fla. 1st DCA 1999).

Sentencing Issue

The calculations of Mr. Morman's scoresheet are based on convictions for four counts of second-degree felonies. Because we have found a double jeopardy violation, necessitating the striking of the convictions on two of these counts, the extra points for the two improper counts also illegally enlarge the point totals in the "additional offenses at conviction" and "victim injury" sections of the scoresheet. The trial court had sentenced Mr. Morman to the lowest possible sentence that his scoresheet produced, twenty years,...