Pitts v. State

• Decision Date: 05 February 2019
• Docket Number: No. 1D16-5547,1D16-5547
• Citation: 263 So.3d 834
• Parties: Samuel PITTS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

263 So.3d 834

Samuel PITTS, Appellant,

v.STATE of Florida, Appellee.

No. 1D16-5547

District Court of Appeal of Florida, First District.

February 5, 2019

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.

Wetherell, J.¹

Samuel Pitts appeals his sexual battery conviction. He challenges the trial court's admission of collateral crime evidence and exclusion of "good character" evidence, and he also argues that the collateral crime evidence impermissibly became a feature of the trial. We find no merit in any of Pitts's arguments and accordingly affirm his conviction and resulting sentence.

FACTS

The victim claimed that Pitts digitally penetrated her without her consent while she was sleeping after a night of drinking and smoking marijuana with Pitts and others. Shortly after the incident, Pitts left voicemails on the victim's phone apologizing for getting "carried away," being "that aggressive," and going "over the line." However, at trial, Pitts disputed the victim's account of the incident and denied sexually battering her.

The State charged Pitts with one count of sexual battery. Prior to trial, the State filed a notice that it intended to introduce evidence that years earlier Pitts digitally penetrated another woman after she passed out following a night of drinking. The notice stated that this collateral crime evidence would be introduced "pursuant to Florida Statute 90.404(2)" for purposes of "prov[ing] a material fact in issue: specifically the requisite elements of intent (including absence of mistake or accident[ ) ], modus operandi."

Pitts filed a motion in limine to exclude the collateral crime evidence. After a Williams² rule hearing, the trial court found that the State proved by clear and convincing evidence that Pitts committed the prior sexual battery. However, the court did not find the collateral crime evidence admissible for the purposes listed in the State's notice. Rather, the court found the evidence admissible under section 90.404(2)(c), Florida Statutes, to prove "propensity" and to corroborate the victim's story. Additionally, the court found after a "heightened 403 analysis" that the probative value of the collateral crime evidence outweighed its prejudicial effect because of the similarity between the prior sexual battery and the charged offense.

The collateral crime evidence was introduced at trial, and the jury found Pitts guilty as charged. The trial court adjudicated Pitts guilty and sentenced him to the scoresheet minimum of 94.65 months in prison.

ANALYSIS

We review the trial court's decision to admit or exclude evidence for an abuse of discretion, but the court's discretion is limited by the Evidence Code and applicable case law, the interpretation of which we review de novo . Jackson v. State , 166 So.3d 195, 198 (Fla. 1st DCA 2015) ; Hendricks v. State , 34 So.3d 819, 822 (Fla. 1st DCA 2010).

Pitts makes four arguments on appeal: (1) the State's notice was deficient, (2) "propensity" was not a proper basis for admitting the collateral crime evidence, (3) the trial court should have allowed him to introduce "good character" evidence to rebut the propensity evidence, and (4) the collateral crime evidence impermissibly became a feature of the trial. We address—and reject—each of these arguments in turn.

Sufficiency of the State's Notice

First, Pitts argues that the State's notice was deficient because it did not list "propensity" as a basis for admitting the collateral crime evidence. We disagree.

Section 90.404(2)(d) 1., Florida Statutes, requires the State to give written notice of its intent to introduce collateral crime evidence at least ten days before trial. The statute does not require the notice to list the specific purpose for which the collateral crime evidence is to be admitted. It only requires the notice to include "a written statement of the acts or offenses [the State] intends to offer, describing them with the particularity required of an indictment or information." § 90.404(2)(d) 1., Fla. Stat.

Pitts's argument effectively seeks to add a requirement that is not in the statute. In support of the argument, Pitts relies on Professor Ehrhardt's practice pointer that "the better view" is to require the notice to include the specific purpose "so as to enable the defense to prepare to meet the prosecution's evidence." Charles W. Ehrhardt, Florida Evidence § 404.20, at 346 (2017 ed.). Best practices aside, the plain language of the statute does not require the State to identify the specific purpose for which the evidence is to be introduced, and we do not have the authority to re-write the statute to add such a requirement. See Genesis Ministries, Inc. v. Brown , 186 So.3d 1074, 1078 (Fla. 1st DCA 2016) ("We have no authority to re-write the statute in this (or any other) manner."); Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) ("This court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.").

We have not overlooked State v. Zenobia , in which the Fourth District stated that the State's failure to include any purpose in its notice "should be grounds for the exclusion of the [collateral crime] evidence, simply because of the insufficiency of the notice." 614 So.2d 1139, 1140 (Fla. 4th DCA 1993). This statement is dicta, but even if it wasn't, we would not follow Zenobia . Instead, we would follow the cases from the other districts that have rejected arguments similar to the one made by Pitts in this case as being contrary to the plain language of section 90.404(2)(d) 1. See Quinn v. State , 662 So.2d 947, 954 (Fla. 5th DCA 1995) ("Quinn's argument that the notice given in this case was defective because it did not state the purpose of its use goes beyond an express requirement of the statute. To the extent [ Zenobia ] appears to require specific reasons or explanations of what the jury might deduce from the collateral crime evidence, we respectfully disagree."); see also Kirkland-Williams v. State , 230 So.3d 580, 584 (Fla. 2d DCA 2017) (agreeing with Quinn ).

Here, the State's notice complied with section 90.404(2)(d) 1. because it identified the acts the State intended to offer with sufficient specificity to allow Pitts to respond to those acts, first in a Williams rule hearing and then at trial. Accordingly, the trial court did not err by admitting the collateral crime evidence for a purpose not specifically listed in the notice.

Use of the Collateral Crime Evidence to Show "Propensity"

Second, Pitts argues that the trial court erred in admitting the collateral crime evidence to prove "propensity" because section 90.404(2)(a), Florida Statutes, expressly prohibits the use of collateral crime evidence for that purpose. We disagree.

Section 90.404(2)(a) establishes the general rule that collateral crime evidence is admissible when relevant to prove a material fact in issue, but "is inadmissible when the evidence is relevant solely to prove bad character or propensity." However, a different rule applies when the defendant is charged with "child molestation" defined in section 90.404(2)(b) 2., or a "sexual offense" defined in section 90.404(2)(c) 2.

When the defendant is charged with child molestation, evidence of other acts of child molestation committed by the defendant may be introduced "for its bearing on any matter to which it is relevant." § 90.404(2)(b) 1., Fla. Stat. This statute has been construed to allow the admission of evidence of other acts of child molestation "to corroborate the victim's testimony by showing that the accused had a propensity for such criminal conduct." Mendez v. State , 961 So.2d 1088, 1090 (Fla. 5th DCA 2007) (citing McLean v. State , 934 So.2d 1248 (Fla. 2006) ) (emphasis added). However, before admitting the collateral crime evidence, the trial court is required to consider the similarity of the collateral crime and the charged offense as part of its weighing of the probative value and prejudicial effect of the evidence under section 90.403, Florida Statutes. See McLean , 934 So.2d at 1251 ("Application of section 90.403 in determining admissibility ensures that section 90.404(2)(b) does not open the door to introduction of any and all propensity evidence in sexual molestation cases.").

Similarly, when (as here) a defendant is charged with a sexual offense, evidence of other sexual offenses committed by the defendant may be introduced "for its bearing on any matter to which it is relevant." § 90.404(2)(c) 1., Fla. Stat. Because this language is identical to the language in section 90.404(2)(b) 1., the two statutes should be given the same interpretation and application. See State v. Hearns , 961 So.2d 211, 217 (Fla. 2007) ("[W]here the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply.") (citing Goldstein v. Acme Concrete Corp ., 103 So.2d 202, 204 (Fla. 1958) ). Thus, subject to weighing under section 90.403, evidence of other sexual offenses committed by the defendant is admissible under section 90.404(2)(c) 1. to corroborate the victim's testimony by showing that the defendant has a propensity to commit sexual offenses. See Whisby v. State , 2018 WL 6615177, at *3 (Fla. 1st DCA Dec. 18, 2018) ("[C]ollateral-crime evidence of a sexual offense is admissible even if offered to show propensity.").

Accordingly, in this case, the trial court did not err in concluding the collateral crime evidence could be admitted to corroborate the victim's testimony by showing Pitts's propensity to commit sexual offenses.

Exclusion of "Good Character" Evidence

Third, Pitts argues that even if the collateral crime evidence was properly admitted to...