Moss v. State

• Decision Date: 01 July 2015
• Docket Number: No. 1D14–421.,1D14–421.
• Citation: 169 So.3d 223
• Parties: Vernon Bernard MOSS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

169 So.3d 223

Vernon Bernard MOSS, Appellant

v.STATE of Florida, Appellee.

No. 1D14–421.

District Court of Appeal of Florida, First District.

July 1, 2015.

Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.

Opinion

RAY, J.

Vernon Bernard Moss appeals his conviction for burglary of an occupied dwelling and sexual battery. We find reversible error in the admission of evidence of a collateral offense and evidence that Moss exercised his right to remain silent. Consequently, we reverse and remand for a new trial.

FACTS

According to the State's evidence, Moss committed the charged offenses on December 20, 2012, while working in maintenance at the Verdant Cove apartment complex. R.L., a resident, saw Moss outside and asked him to come into her apartment to trim some vertical blinds. R.L. asked if she needed to place a request with the management office, and Moss indicated that she did not. He went by a short time later and completed the job. When Moss finished trimming the blinds, R.L. was standing in her kitchen making a sandwich for her four-year-old daughter, who was in the open adjoining living room. With the young child essentially in the same room, Moss approached R.L., made an unwelcomed comment about her body, and attempted to put his hands in her pants. R.L. physically blocked the attempt and told Moss to “get the fuck out of [her] house.” Instead of leaving, Moss grabbed R.L.'s hand and said twice, “[L]et me show you something I can fix in your bathroom.” When R.L. indicated she did not want to go, Moss picked her up, threw her over his shoulder, and carried her into the bedroom as she screamed. He locked the door and performed oral and vaginal sex on R.L. against her will.

The police interviewed Moss the same day as the incident. During this interview, the officer suggested that Moss and R.L. may have engaged in consensual sex, but Moss denied any sexual contact with her at all. At the end of the interview, the officer advised Moss that if he did have sex with R.L., the information would come out because R.L. was undergoing a sexual assault examination, which could reveal DNA evidence.

A few months later, after confirming that Moss's DNA was found inside the victim, the police attempted a second interview with Moss. An officer read Moss his Miranda¹ rights and asked, “Having these rights in mind, do you wish to talk to us now, or at least listen to what we have to say?” Moss answered, “I'll listen to what you've got to say.” The officer then asked Moss if he recalled the prior interview and having denied any contact with R.L. Moss confirmed, “That's correct.” The officer responded, “Okay. Is—now, that's—is that your—you still maintain that you never—,” at which point Moss interrupted with, “That's my final statement.” The officer proceeded, stating, “Okay. That you never had any contact with her?” Moss confirmed, “That's what I'm saying.”

This second interview was admitted into evidence over the defense's objection that it amounted to an improper comment on Moss's invocation of his right to remain silent. Although the interview went on (resulting in a statement that the prosecutor agreed was an invocation of the right to remain silent), the portion the jury heard was approximately two minutes long and is summarized in this opinion in its entirety. In the State's closing argument, the prosecutor characterized the significance of Moss's comments as showing that he lied after having three months “to think about this,” after knowing that the police had taken a DNA sample from him, and after being arrested for rape.

The trial court also admitted evidence of a collateral crime by Moss. The collateral crime witness, M.A., testified that she was living at the Verdant Cove apartment complex on November 10, 2012, when she saw Moss outside and asked him to replace a lightbulb in her apartment. Moss entered her apartment, replaced the bulb, and then approached M.A. from behind while she was standing in her kitchen preparing food. Moss placed his hands on M.A.'s chest and asked if her breasts were real, at which point she pushed him back and told him to “get the fuck out of [her] apartment.” Moss replied, “That's how it is?” and left.

Moss objected to the admission of M.A.'s testimony on the ground of relevance. The trial court concluded that this evidence was relevant to show lack of consent or mistake and modus operandi. At trial, the court instructed that the evidence could be considered to show “intent or the absence of mistake or accident on the part of [Moss].” To the jury, the prosecutor argued that M.A.'s testimony showed “the way [Moss] preys on women.” The prosecutor suggested that Moss was “probably empowered by the fact that there were no consequences for what happened to [M.A.], and so he went the further step with [R.L.].”

On behalf of the defense, Moss testified that he had consensual sex with R.L., for which he had agreed to pay her, after entering her home for the purpose of fixing her blinds. He explained that he lied to the police because he did not want his wife to find out about his infidelity. He stated that he maintained his denial because he hoped R.L. would eventually change her story.

ANALYSIS

I. Collateral Crime Evidence

The first argument we address is that the trial court reversibly erred in admitting evidence of the offense against M.A. A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion, subject to the rules of evidence. Donton v. State, 1 So.3d 1092, 1093 (Fla. 1st DCA 2009).

Section 90.404(2)(a), Florida Statutes (2013), known as the Williams² rule, addresses the admission of collateral crime evidence:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

This rule is “a special application of the general relevancy rule for [a] collateral crime,” Wright v. State, 19 So.3d 277, 292 (Fla.2009), which describes ways in which collateral crime evidence may be relevant to specific issues in a trial. Although the rule addresses “similar fact evidence,” mere similarity to the charged offense does not ensure the relevance or admissibility of collateral crime evidence. Charles W. Ehrhardt, Florida Evidence § 404.9 (2013 ed.); see Bolden v. State, 543 So.2d 423, 423 (Fla. 5th DCA 1989) (emphasizing that evidence should not be admitted merely to show a pattern of conduct). Likewise, lack of similarity in itself does not require exclusion of evidence of a collateral offense that is relevant to a material issue. McLean v. State, 934 So.2d 1248, 1258 (Fla.2006). The Williams rule addresses similarity because the relevance of collateral crime evidence is “often a function of its similarity.” Id. at 1255.

Evidence of a similar collateral crime sometimes shows absence of mistake because “[t]he more frequently an act is done, the less likely it is that it is innocently done.” Vice v. State, 39 So.3d 352, 357 (Fla. 1st DCA 2010). With exceptions not pertinent to the instant case,³ where collateral crime evidence is offered for this purpose, it must be “strikingly similar” to the charged offense to be admissible. Robertson v. State, 829 So.2d 901, 909 (Fla.2002). Generally, the main crime at issue and the similar fact evidence must share “some unique characteristics or combination of characteristics [that] set them apart from other offenses.” Id. (quoting Heuring v. State, 513 So.2d 122, 124 (Fla.1987), superseded by statute on other grounds, § 90.404(2)(b), Fla. Stat. (2002), as stated in McLean, 934 So.2d at 1258 ). This requirement of substantial similarity has been imposed not only because the logical relationship between the similarity and the issue of absence of mistake justifies it, see Vice, 39 So.3d at 357, but also because evidence of a collateral crime carries a high risk of a wrongful conviction based on the defendant's character or propensity to commit crimes, see Heuring, 513 So.2d at 124.

When it is argued that evidence of a collateral crime tends to prove a material issue due to its similarity to the charged offense, the trial court should consider both similarities and differences between the crime being tried and the similar fact evidence. See Tollefson v. State, 525 So.2d 957, 960 (Fla. 1st DCA 1988) (collateral crime evidence inadmissible where differences between the two scenarios overshadowed their “singular similarity”); Beaussicot v. State, 95 So.3d 472, 474 (Fla. 4th DCA 2012) (two offenses not strikingly similar where significant differences existed); Nshaka v. State, 82 So.3d 174, 179 (Fla. 4th DCA 2012) (similarities between offenses were substantially outweighed by dissimilarities); see also Corbett v. State, 113 So.3d 965, 970 (Fla. 2d DCA 2013) (collateral crime evidence admissible as “fingerprint evidence” where striking similarities outweighed differences). If the collateral crime evidence involves a different victim and is offered to prove absence of mistake, differing degrees of severity between the two offenses, or completion of the main crime at issue versus a mere threat to commit a similar crime in the collateral scenario, are important considerations. See Robertson, 829 So.2d at 910 (holding defendant's prior threat of violence against ex-wife with an assault rifle was not sufficiently similar to the fatal shooting of defendant's current wife with a handgun to justify admission under the Williams rule).

Here, the trial court found the collateral crime evidence relevant to show lack of consent and modus operandi, which, under the facts of this case, are both ways of saying absence...