Saffor v. State

• Decision Date: 15 September 1993
• Docket Number: No. 91-2667,91-2667
• Citation: 625 So.2d 31
• Parties: 18 Fla. L. Weekly D2046 Ramon SAFFOR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 31

625 So.2d 31

18 Fla. L. Weekly D2046

Ramon SAFFOR, Appellant, v. STATE of Florida, Appellee.

No. 91-2667.

District Court of Appeal of Florida,

First District.

Sept. 15, 1993.

Nancy A. Daniels, Public Defender, Carol Ann Turner, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.

EN BANC

WOLF, Judge.

Appellant challenges his conviction for sexual battery on a child under 12 years of age. He asserts that the trial court erred in admitting evidence of a collateral crime because the prior criminal act was not sufficiently similar to the charged offense so as to constitute similar-fact evidence under section 90.404(2), Florida Statutes (1989). We determine that the evidence was sufficiently similar to provide corroboration for the victim's testimony in a case involving a sexual battery within the familial context, and we affirm.

The testimony at trial revealed that the child victim was living with his mother and the appellant at the time of the offense. The victim's relationship with appellant was tantamount to a stepson. He was the son of appellant's girlfriend, a woman with whom appellant had fathered two children. According to the ten-year-old victim, he was awakened from his sleep by the appellant, who pulled down the child's pants and sodomized him.

The victim of the collateral crime which occurred four years earlier was the niece of appellant and was 12 years old at the time of the incident. ¹ She testified that she was sleeping at her aunt's house when the appellant, her uncle, put his hand under her pajamas towards her vagina, but he withdrew his hand when she asked him to leave. The appellant argued at trial that the alleged dissimilarities between offenses, such as the difference in the sex of the children, the disparity of the sexual acts involved, and the fact that appellant failed to complete his attack against one of the victims rendered the collateral crime evidence inadmissible. These arguments were considered and rejected by the trial judge and have been rejected by this court in the past. The lower court considered the fact that appellant was interrupted in one instance by the protests of the victim, ² and the court reasoned that because appellant was interrupted, it was impossible to say "what might have occurred had he continued on his journey wherever he was going." ³ The trial judge apparently determined that the minor differences in the sex acts were less important than the appellant's method of committing the crime, by attacking children of approximately the same age in their bedrooms when the opportunity presented itself. ⁴

In determining the admissibility of collateral crime evidence, the trial court must make two determinations: (1) Whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice. See Secs. 90.402, 90.403, and 90.404(2), Fla.Stat.; Bennett v. State, 593 So.2d 1069 (Fla. 1st DCA1992). The standard of appellate review is whether the trial court abused its discretion in making these evidentiary determinations. Bennett, supra; Sims v. Brown, 574 So.2d 131 (Fla.1991). In Sims, the supreme court approved the fourth district's finding:

The determination of relevancy is within the discretion of the trial court. Where a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, an appellate court will not overturn that decision absent a clear abuse of discretion.

Sims, supra at 133, quoting Trees v. K-Mart Corp., 467 So.2d 401, 403 (Fla. 4th DCA), rev. denied, 479 So.2d 119 (Fla.1985). The trial court in the instant case did not abuse its discretion in admitting evidence of a collateral crime. Both the charged offense and the collateral crime involved sexual attacks on children approximately the same age who had a familial relationship with the perpetrator, and both attacks occurred while the children were asleep in bed.

In Heuring v. State, 513 So.2d 122 (Fla.1987), the supreme court recognized that the general rule concerning admission of collateral offenses is that to be admissible they "must meet strict standards of relevance," they must contain "unique characteristics," and they must be "strikingly similar" to the charged offense. The court, however, went on to recognize that situations involving sexual battery within the familial context presented special problems which distinguish them from other cases involving the introduction of collateral crimes:

The victim knows the perpetrator, e.g., parent and identity is not an issue. The victim is typically the sole eyewitness and corroborative evidence is scant. Credibility becomes the focal issue.

Id. at 124. The court stated that collateral crime evidence was relevant and admissible "to corroborate the victim's testimony and [this approach] recognizes that in such cases, the evidence's probative value outweighs its prejudicial effect." Id. at 125.

In Beasley v. State, 518 So.2d 917 (Fla.1988), the supreme court approved its holding in Heuring. While not specifically stated in either opinion, it appears the supreme court determined that the collateral crime evidence was corroborative because it demonstrated what some commentators have described as "depraved sexual propensity." The evidence is corroborative because the fact that the perpetrator has acted in a similarly depraved fashion in the past is predictive of his actions at other times. Myers, in Evidence in Child Abuse and Negligence Cases, discusses the law concerning the necessary similarity between the charged and collateral crime evidence in the context of depraved sexual propensity as follows:

The Lopez court correctly concluded that precise similarity between charged and uncharged acts is unnecessary. The evidentiary value of depraved sexual propensity evidence lies in its predictive value. Someone with a history of deviant sexual behavior is more likely than someone without such a history to engage in deviant sexual conduct. The predictive value of the evidence lies not so much in the similarity between uncharged and charged acts as in the deviant nature of the acts. The psychological literature indicates that many paraphiliacs engage in a number of different types of deviant sexual behavior. Thus, the requirement of similarity is considerably less important than the requirement that the charged and uncharged acts constitute deviant sexual behavior.

2 J. Myers, Evidence in Child Abuse and Negligence Cases Sec. 6.21, at 63, citing State v. Lopez, 170 Ariz. 112, 822 P.2d 465 (Ct.App.1991) (footnotes omitted).

In Calloway v. State, 520 So.2d 665 (Fla. 1st DCA1988), rev. denied, 529 So.2d 693, (Fla.1988), this court specifically stated

[t]he rigidity with which the similarity requirement is applied in cases wherein the collateral crimes are introduced to prove a fact such as identity of the perpetrator is not necessary in other situations as in the instant case where the evidence is relevant to corroborate the victim's testimony.

Id. at 668. The district courts of this state, including this court, have recognized the wisdom of not requiring a unique characteristic tantamount to a signature in cases where identity is not at issue. Florida district courts have adopted the rationale of Calloway in familial sexual battery cases. ⁵ See, e.g., Adkins v. State, 605 So.2d 915 (Fla. 1st DCA1992); Gould v. State, 558 So.2d 481 (Fla. 2d DCA1990); Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA), rev. denied, 591 So.2d 180 (Fla.1991).

In recognition of the less rigid standard of similarity, this court has ruled that evidence of dissimilarities between crimes of the type relied on should not result in collateral crime evidence being excluded. In Adkins, supra, and in Grant v. State, 577 So.2d 625 (Fla. 1st DCA1991), the court found that a difference in sex of the victims would not preclude admission of collateral crimes evidence. ⁶ In Wilkerson v. State, 583 So.2d 428 (Fla. 1st DCA1991), the fact that the victim's sibling awoke to find the defendant unfastening her pajamas, which apparently prevented the defendant from proceeding further, did not render such evidence inadmissible. In Calloway v. State, 520 So.2d 665 (Fla. 1st DCA), rev. denied, 529 So.2d 693 (Fla.1988), we held that evidence of "tickling ... and touching ... breasts" of a collateral crime witness is admissible in a prosecution of the defendant for sexual battery of his stepdaughter. See also Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA1989), rev. denied, 563 So.2d 635 (Fla.1990).

The similarity of the method of attack in this case outweighs any dissimilarity. In determining whether the trial court abused its discretion, we must apply the reasonableness test set forth in Canakaris v. Canakaris 82 So.2d 1197 (Fla.1980). Files v. State, 613 So.2d 1301 (Fla.1992). "If reasonable men could differ as to the propriety of the action by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Canakaris, supra at 1203.

It is argued that the Heuring opinion and other cases involving admissibility of collateral crimes evidence are inapplicable in this case because there is no showing that the crime victim in the instant case was subject to the familial or custodial authority of the appellant. ⁷ This argument fails for several reasons: (1) The test for admissibility of collateral crime evidence under Heuring, supra, is that the event occurred in a familial setting or context; the requirement of demonstrating familial or custodial authority is only applicable where "authority" is a statutory element of the crime pursuant to section 794.041(2); and (2) there was sufficient evidence of a familial relationship to support the trial judge's admission of the collateral crime evidence.

In ...