Padgett v. State, 88-1786

• Decision Date: 09 November 1989
• Docket Number: No. 88-1786,88-1786
• Citation: 14 Fla. L. Weekly 2610,551 So.2d 1259
• Parties: 14 Fla. L. Weekly 2610 Elvia PADGETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1259

551 So.2d 1259

14 Fla. L. Weekly 2610

Elvia PADGETT, Appellant, v. STATE of Florida, Appellee.

No. 88-1786.

District Court of Appeal of Florida Fifth District.

Nov. 9, 1989.

Marvin S. Davis, Sanford, for appellant.

Norman R. Wolfinger, State Atty., and Jeffrey D. Deen, Asst. State Atty., Sanford, for appellee.

PER CURIAM.

Elvia Padgett appeals from his judgment and sentences for two counts of soliciting sexual activity with a child (his sixteen year old daughter) and one count of aggravated child abuse. We find no merit in the appellant's point on appeal regarding the trial court's application of Florida's rape victim shield statute ¹ to exclude evidence of the victim's prior sexual conduct. The point with which we are concerned is the appellant's claim that it was error for the trial court to admit "similar fact" evidence over defense objection because prior incidents of his sexual misconduct with the victim and with his stepson were irrelevant and offered by the State solely to show his bad character and propensity, contrary to section 90.404, Florida Statutes (1987). Section 90.404, which codified the holding in Williams v. State, 110 So.2d 654 (Fla.1959) cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959) provides:

(2) OTHER CRIMES, WRONGS, OR ACTS.--

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as 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. [Emphasis added].

The defense objected at trial, and urges on appeal, that the prior incidents involving both children should have been excluded because of remoteness, but we agree with the State that this contention is refuted by Heuring v. State, 513 So.2d 122 (Fla.1987), wherein the Florida Supreme Court upheld the admission of similar fact evidence even though there was an approximate 20-year time differential between the charged and collateral offenses.

The victim testified that on the day in question her father solicited sexual intercourse with her on two occasions, first while they were driving in his truck, then later while they were alone together in the family home. The victim was also allowed to testify as to several prior incidents of sexual encounters with the defendant, which occurred both in the home and in a motor van. These incidents began in 1982, some five years prior to the instant offenses, which were alleged to have occurred on November 21, 1987.

In Heuring the Florida Supreme Court expanded the Williams rule so that evidence of a collateral offense upon another family member may be admissible in those cases involving sexual battery committed within a familial context for the sole purpose of corroboration of the victim's testimony. In Heuring the court stated:

The victim knows the perpetrator, e.g., a parent, and identity is not an issue. The victim is typically the sole eye witness and corroborative evidence is scant. Credibility becomes the focal issue. In such cases, some courts have in effect relaxed the strict standard normally applicable to similar fact evidence. These courts have allowed evidence of a parent's sexual battery on another family member as relevant to modus operandi, scheme, plan, or design, even though the distinction between sexual design and sexual disposition is often tenuous. We find that the better approach treats similar fact evidence as simply relevant to corroborate the victim's testimony, and recognize that in such cases the evidence's probative value outweighs its prejudicial effect.

Heuring at 124-125.

The stepson's testimony as to a sexual assault on him is clearly admissible under Heuring to corroborate the victim's testimony. See also Beasley v. State, 503 So.2d 1347 (Fla. 5th DCA 1987), approved, 518 So.2d 917 (Fla.1988). The more difficult question involves the admissibility of the victim's testimony. This testimony as to prior, uncharged sexual assaults by the defendant was not admissible to corroborate her own testimony because corroboration should come from an independent source. Nevertheless, we believe the testimony was admissible under rules of evidence established prior to Heuring and confirmed subsequent to it. We do not agree, as urged by the dissent, that Heuring was intended to limit the use of similar fact evidence in child assault cases.

Prior to Heuring case law existed in this state holding that evidence of prior similar sex acts committed by the accused against the same victim was admissible. See, e.g., Gibbs v. State, 394 So.2d 231 (Fla. 1st DCA), affirmed, 406 So.2d 1113 (Fla.1981) (admissible as showing "lustful" state of mind toward stepdaughter); Whiteman v. State, 343 So.2d 1340 (Fla. 2d DCA), cert. denied, 353 So.2d 681 (Fla.1977) (admissible in prosecution under section 794.011 as relevant to manner in which defendant exercised his parental authority over victim); Summit v. State, 285 So.2d 670 (Fla. 3d DCA 1973) (admissible to show character of the defendant as to motive and intent). In Gibbs the First District explained:

We observe, however, that the evidence in the case at bar, since it deals only with similar sex acts against the victim in the case being tried, is far less subject to objection than evidence of similar acts against other victims. See particularly, references to Professor Julius Stone's comments regarding this distinction (Cotita, ² dissenting opinion), in which Stone pointed out that prior sex acts against the same victim show defendant's "lust toward the girl with whose rape he is charged, only one step removed from the main issue, namely whether he indulged that lust." Stone found a "world of difference" between that evidence that defendant raped other girls at other times.

"Relevancy indicates relationship between facts. The existence of fact A is relevant as tending in reason to prove the existence of fact B, if the existence of B is more likely or probable when A exists than it would be if A did not exist; and evidence tending in reason to prove the existence of A is relevant evidence of the existence of B." Morgan, Basic Problems of Evidence, Vol. One (June, 1961), Chapter Six, Relevancy, p. 183. The existence of a lustful attitude toward his stepdaughter, proven by prior sexual assaults, makes it more likely or probable that the appellant possessed a similar state of mind toward his stepdaughter on the date of the alleged offense. This is relevancy beyond mere propensity. Compare Florida Evidence Code, § 90.404(2) Florida Statutes (1979), "Other Crimes, Wrongs, or Acts."

394 So.2d at 232.

Professor McCormick likewise states that proof of other sex crimes has been traditionally deemed admissible in prosecutions involving the same parties. McCormick on Evidence § 490, p. 560 (3d ed. 1984).

Since Heuring, the First District has reaffirmed that such evidence is admissible to show a pattern of conduct. See Smith v. State, 538 So.2d 66 (Fla. 1st DCA 1989). It would be ironic indeed if Heuring, which seems to have expanded the rule of admissibility should now be employed as a rule of exclusion to bar admission of evidence which was previously deemed relevant and thus admissible in this state and indeed has traditionally been recognized as less objectionable than "other victim" testimony.

In Sampson v. State, 541 So.2d 733 (Fla. 1st DCA 1989), although questioning whether the victim's testimony as to prior sexual attacks by the defendant was admissible to corroborate her testimony as to the charged offense, the court nonetheless held the evidence to be admissible as relevant to the issues of intent, motive and absence of mistake. The case stands for the proposition, therefore, that even if not admissible for corroboration, the evidence may be relevant and thus admissible for some other purpose, and refutes the position of the dissent here that if the evidence is not admissible for corroboration, then its only purpose is to show the defendant's propensity to commit the crime.

The dissent maintains that Gibbs v. State, 394 So.2d 231 (Fla. 1st DCA 1981), affirmed, 406 So.2d 1113 (Fla.1981) does not provide a ground for admission because it was overruled by Coler v. State, 418 So.2d 238 (Fla.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983).

In Coler, defendant was convicted of three counts of rape of a child under eleven years and one count of sexual battery of a child eleven years or younger. Each count concerned a separate episode of sexual battery committed on defendant's daughter between 1972 and 1977. The state:

[i]n addition to the testimony of the children concerning the four specific incidents of sexual battery ... introduced testimony from the children, over objection, of other examples of Coler's deviant sexual behavior. They testified that Coler had the children watch from the doorway as he fondled a woman, that he told them that they or the neighborhood children could use his bed for sexual intercourse, that he told one of his sons to have sex with three women he brought home, and that on a visit to Michigan he made the children eat a cucumber which, just prior thereto, he had inserted into the daughter's rectum.

418 So.2d at 239.

The court found that none of this testimony was relevant to prove a material issue in the case and was only designed to prove the defendant's bad character. Id. The court declared:

To be relevant, evidence must prove or tend to prove a fact in issue. The state argues that the objected-to evidence proves Coler's state of mind. Coler's state of mind, however, was not an issue. State of mind is not a material fact in a sexual battery charge, nor is intent an issue. Cf. Askew v. State, 118 So.2d 219 (Fla.1960) (specific intent is not the essence of the crime of rape). In this instance the state overstepped the threshold...