Roberts v. State
Citation | 662 So.2d 1308 |
Decision Date | 25 October 1995 |
Docket Number | No. 94-0052,94-0052 |
Parties | 20 Fla. L. Weekly D2381 Donald ROBERTS, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Edward Giles, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING AND REHEARING EN BANC
Because of a drafting error, we vacate our earlier opinion and replace it with the following. Upon so doing, we deny rehearing and rehearing en banc.
The admission of collateral crimes evidence in this case requires a reversal of defendant's conviction for capital sexual battery. The scene of the crime was an open-air hotel swimming pool with numerous people present. Defendant was in the pool with several children, throwing them into the air, when the incident occurred. He testified that the last time he threw the victim into the air, he pushed her swimsuit aside and fondled her with his hand. He described the act as "spontaneous and impulsive." He also testified that it was no accident, but that "it was a very quick thing." He denied that he ever penetrated her vagina, adding "there was no intent to penetrate her, or there was no jabbing motion or poking motion involved in it." He estimated that it was over in 5 seconds. Although defendant's account is not otherwise inconsistent with the state's evidence, the child's mother and an investigating officer testified to statements from the child victim on the day of the incident tending to show penetration. Hence, penetration was an issue at trial.
In its case in chief, the state adduced the testimony of another child, C.H., to the effect that she had also been molested by the defendant, an incident that was not part of the charges being tried. She said that she lived near defendant and often visited his apartment to play video games. She intimated that when she and defendant were alone, he would partially undress her and touch her crotch with his finger. The state argued to the trial judge, and again does so on appeal, that this testimony was admissible under section 90.404(2)(a), Florida Statutes (1993), to prove that defendant's touching was done in "the absence of mistake or accident," i.e. that he intended to do the act. The state also contends that the collateral crime evidence was admissible because defendant claimed that any penetration was accidental, and that he did not plan or intend to penetrate.
We note that C.H. never testified at trial as to any facts indicating that she was penetrated; nor indeed was she even asked the question. We also note that defendant admitted before and during trial to the act of fondling the victim in the area of the crotch. The collateral crimes testimony of C.H. to the effect that he played with her vagina without penetration might have been relevant if defendant had denied fondling the victim without penetration in the case being tried, but he did not do so. As regards the contention that the collateral crimes evidence was relevant to prove intent and the absence of accident, then, C.H.'s testimony tended to prove only a fact not in issue.
Section 90.404(2)(a) provides:
"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." [e.s.]
Thus the statutory basis for the admission of collateral crimes evidence 1 requires that such evidence relate to a disputed fact actually in issue. The text thus implies that it is not enough that the evidence relates to an element of the crime charged as to which there is no real dispute.
We agree with this construction placed on the statute by Judge Zehmer where he wrote:
[e.s.]
Thomas v. State, 599 So.2d 158, 162 (Fla. 1st DCA), rev. denied, 604 So.2d 488 (Fla.1992). Later in that opinion, he added:
599 So.2d at 163. After examining the particular facts and circumstances of this case, we conclude that the collateral crimes evidence was not relevant because the fact of intent to touch the victim, or absence of accident, was not actually in dispute.
We turn next to the state's contention that the collateral crimes evidence was admissible because it was relevant to the issue of penetration, an issue actually in dispute. The information charged sexual battery "by penetrating the vagina * * *." As we noted, defendant denied penetration. As we have previously shown, however, C.H. did not testify as to any penetration in her testimony about the collateral crime. The state does not explain how one experience of fondling without actual penetration would tend to prove 2 that on this occasion fondling included penetration. As the supreme court explained in Heuring v. State, 513 So.2d 122 (Fla.1987):
...
To continue reading
Request your trial-
Jackson v. State
...the charged crime and “[n]either party did anything to make motive or intent significant to any contested fact”); Roberts v. State, 662 So.2d 1308, 1310 (Fla. 4th DCA 1995) (reversing admission of collateral-crime evidence offered to show intent and absence of mistake because those issues “......
-
Goggins v. State
...similar acts seventeen to twenty years ago, he must have committed the acts with which he was now charged."); Roberts v. State , 662 So.2d 1308, 1310 (Fla. 4th DCA 1995) (reversing the admission of collateral crime evidence offered to show intent and absence of mistake because those issues ......
- State v. Roberts