Sias v. State

• Decision Date: 20 July 1982
• Docket Number: No. 80-1263,80-1263
• Citation: 416 So.2d 1213
• Parties: Stephen SIAS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1213

416 So.2d 1213

Stephen SIAS, Appellant, v.The STATE of Florida, Appellee.

No. 80-1263.

District Court of Appeal of Florida Third District.

July 20, 1982.

Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.

Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

Sias appeals from his conviction and sentence on two counts of sexual battery arising out of alleged homosexual acts perpetrated upon a fourteen-year-old boy named Jeff.He asserts, inter alia, that the trial court erred in admitting over his objection evidence of another crime ostensibly offered to establish Sias' identity as the perpetrator of the crime charged and testimony that Sias was a homosexual.

The incident out of which the charges arose occurred on November 16, 1979.On that day, Jeff, along with some other young residents of Montani Clinical Center, went on a field trip to Greynolds Park.Jeff climbed onto the roof of a bridge to fish.His line became snagged in a tree and he lost his hook.He went below the bridge to look for another hook.There, a man whom Jeff had earlier noticed sitting on a bench smoking and whom he later identified as Sias, asked Jeff if he would like to smoke some marijuana.Jeff immediately agreed and, told that the marijuana was in the man's car, followed the man through the woods to get the marijuana.As they were walking along the path, a man later identified as Timothy Bartsch, Sias' co-defendant, ¹ stepped out from the bushes and threw a blue denim jacket over Jeff's head.Jeff was dragged from the path.Bartsch told Jeff he would break his neck if he screamed.Sias then threatened Bartsch with harm if he hurt the boy.Sias and Bartsch pulled Jeff's pants down to his ankles and performed sex acts upon him.They then offered Jeff marijuana, smoked some themselves, pulled the jacket from Jeff's head, and sent him off.Jeff identified his assailants as between eighteen and twenty years old, one taller than the other, one wearing a bulky V-neck sweater, and the other with a large belt buckle and hush-puppy shoes.

The "similar" crime testimony was elicited from an eleven-year-old boy, Shawn, who testified to being sexually abused by two men on November 11, 1979, five days before the events charged in the information.Shawn testified that he was fishing in a place other than Greynolds Park, which he described as the enchanted forest.In Shawn's case, the incident began with him being grabbed from behind and pulled backwards into the woods.An orange T-shirt was thrown over his head, and it was by looking through the T-shirt that he got his first view of his assailants.Shawn's pants were pulled down, and the man he identified as Sias rubbed his body while the other man, whom he identified as Bartsch, performed oral copulation on Shawn.After the assault, Shawn ran and Bartsch chased and caught him.The assailants pulled the cloth from Shawn's head and sent him off.Shawn identified the taller assailant as wearing glasses and having a scratch on his neck and the other assailant as having a Latin accent.

The State contends that Shawn's testimony about the uncharged crime was relevant to prove that Sias was the person who committed the crime for which he was on trial and thus admissible under Williams v. State, 110 So.2d 654(Fla.1959).²It suggests that relevancy is established because there are more similarities than dissimilarities in the events involving Jeff and Shawn.Were this the test for admissibility, then it is likely that whenever two men acting in concert perpetrate assaultive sexual acts upon a young boy in an out-of-the-way part of a park, they would be subject to the introduction of testimony about another uncharged crime with the same scenario.However, we understand the test to be far more stringent--not merely that there be greater similarity than dissimilarity between the crimes, but rather that there be something so unique or particularly unusual about the perpetrator or his modus operandi that it would tend to establish, independently of an identification of him by the collateral crime victim, that he committed the crime charged.SeeBeasley v. State, 305 So.2d 285(Fla. 3d DCA1974).Accord, Duncan v. State, 291 So.2d 241(Fla. 2d DCA1974);Marion v. State, 287 So.2d 419(Fla. 4th DCA1974).Thus, in Davis v. State, 376 So.2d 1198(Fla. 2d DCA1979), the facts that the charged crime and the collateral crime involved burglary and sexual battery in which a window was used to enter the homes of young women who lived alone, occurred three weeks apart, and took place about the same time of night, and concluded with the taking of money from the victims' homes, did not establish the requisite uniqueness where the area of the city where the crime occurred, the manner in which the sexual assaults and the taking of money were accomplished, and the attitude of the assailants towards the victims were dissimilar.Likewise, in Helton v. State, 365 So.2d 1101(Fla. 1st DCA1979), a showing that in both crimes the female victim was abducted, taken to a wooded area where sexual acts were compelled or attempted, and where ultimately the victim escaped and hailed a passing car, was held insufficient to admit evidence that the defendant committed the collateral crime.See alsoFranklin v. State, 229 So.2d 892(Fla. 3d DCA1969)(evidence that defendant with gun drawn acting alone committed two robberies in Fort Myers not relevant to prove that defendant with hand under his shirt acted together with two other men to commit a robbery in Miami);Davis v. State, 276 So.2d 846(Fla. 2d DCA1973)(evidence that food store in Hillsborough County was robbed five days earlier by a man wearing a woman's bikini pants over his head, blue sock on his right hand, and kitchen towel on his left hand not relevant to prove that unadorned defendant accompanied by another man held up cleaner in same county);Banks v. State, 298 So.2d 543(Fla. 1st DCA1974)(sole relation between crime charged and collateral crime was that both involved homosexual acts perpetrated on young boys).

Turning to the facts of the present case, while the crimes have in common young boys as victims, isolated areas in parks, and similar homosexual acts, we think these things would be likely found in a vast number of such crimes and would hardly point to Sias as the perpetrator.However, other characteristics of the crimes persuade us that the collateral crime testimony was entitled to admission.First, on each occasion Sias was accompanied not only by another person, but, according to the identifications, the very same person.Second, although the crime against Jeff began with the enticement of marijuana and that against Shawn with force (explicable in light of the difference in age of the victims), both proceeded thereafter in nearly identical fashion--the piece of clothing thrown over the victim's head, the clothing kept on the victim's head during the sexual act, and, most significantly, the clothing removed after the completion of the sexual act and the victim directed out of the isolated wooded area.We think these latter facts comprise the type of singular behavior which qualifies the collateral crime evidence for admission.From the fact that the piece of clothing was removed after the sexual acts were complete and before the victims departed, it appears that placing clothing over the victims' heads was done less to conceal the identity of the assailants than as a ritual connected to the sex acts.Given the absence of marked dissimilarities, and the presence of other, concededly more general similarities, this act, in our view, makes the modus operandi unique and the evidence of the crime involving Shawn admissible.

Having decided that the other crime evidence was properly admitted, we now address the concern of the later Williams case, Williams v. State, 117 So.2d 473(Fla.1960):

"Inasmuch as evidence of the [other] crime was admissible only because of its relevancy to the identity of the accused and the murder weapon and the similarity of the pattern defined in the two incidents, the question then arises whether or not the state was permitted to go too far in introduction of testimony about the [other] crime so that the inquiry transcended the bounds of relevancy to the charge being tried, and made the [other] offense a feature instead of an incident.This may not be done for the very good reason that in a criminal prosecution such procedure devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant whose character is insulated from attack unless he introduces the subject."Id. at 475-76(emphasis in original).

Where the evidence of the other crime is found to be so disproportionate as to become a feature of the case, reversals have followed.See, e.g., Williams v. State, 117 So.2d 473(Fla.1960);Knox v. State, 361 So.2d 799(Fla. 1st DCA1978);Davis v. State, 276 So.2d 846(Fla. 2d DCA1973), aff'd, State v. Davis, 290 So.2d 30(Fla.1974);Reyes v. State, 253 So.2d 907(Fla. 1st DCA1971);Green v. State, 228 So.2d 397(Fla. 2d DCA1969).Concededly, the record in the present case reflects that more time was spent and evidence presented on the collateral crime.However, this disproportion did not come about because the State went too far in presenting its evidence.Indeed, the testimony which the State elicited from Shawn was confined to that which was needed to establish its relevancy.The excessive focus on the Shawn incident instead occurred because the defense chose to attack the reliability of Shawn's identification of Sias and Bartsch as the people who sexually attacked him and to present an alibi defense to the Shawn incident.This, of course, Sias was free to do, but we will not hold the State...