State v. O'Brien, Nos. 93-1841

CourtCourt of Appeal of Florida (US)
Writing for the CourtHARRIS; DIAMANTIS, J., concurs in result only with opinion with which DAUKSCH; GRIFFIN, J., dissents with opinion in which W. SHARP; DIAMANTIS; DAUKSCH; GRIFFIN; W. SHARP
Citation633 So.2d 96
Parties19 Fla. L. Weekly D488 STATE of Florida, Petitioner, v. Thomas O'BRIEN, Respondent. STATE of Florida, Petitioner, v. Thomas O'BRIEN, Respondent.
Decision Date02 March 1994
Docket NumberNos. 93-1841,93-1842

Page 96

633 So.2d 96
19 Fla. L. Weekly D488
STATE of Florida, Petitioner,
v.
Thomas O'BRIEN, Respondent.
STATE of Florida, Petitioner,
v.
Thomas O'BRIEN, Respondent.
Nos. 93-1841, 93-1842.
District Court of Appeal of Florida,
Fifth District.
March 2, 1994.

Norman R. Wolfinger, State Atty., and Benjamin B. Garagozlo, Asst. State Atty., Melbourne, for petitioner.

Douglas D. Marks of Potter, McClelland, Marks & Healy, P.A., Melbourne, for respondent.

EN BANC

HARRIS, Chief Judge.

We have elected to hear these cases en banc.

The State seeks certiorari review of in limine orders of the lower court denying the State the right to present certain "Williams rule" 1 evidence in the prosecution of Thomas O'Brien for sexual battery of children under twelve years of age.

Page 97

The events involved allegedly occurred during a period of time between 1982-1985 in Brevard County. The accused at that time was approximately fifteen years of age. His sister, Mary O'Brien Arnold, operated a baby-sitting service in their home for several neighborhood children. Four young women, presently aged fifteen to seventeen, have recently alleged that during the relevant time period the accused repeatedly molested them sexually. At issue is whether, in the prosecution of the accused for the crimes allegedly perpetrated on one victim, certain testimony of the other three victims is available to the State. Before this court are two cases, one involving "Debbie" and the other "Jessica." These cases have not been consolidated but are traveling together on appeal.

A single hearing was held on the motions in limine filed in both cases. "Debbie" testified that the accused's sister would leave the children alone when she ran errands and when that occurred, the accused was in charge of taking care of the children. She testified on one occasion, when she was sitting on the couch, he touched her vagina with both his penis and his mouth. 2 She also testified that on several occasions he would ask her and another child, "Lisa," to bring food to him in his bedroom. He would then close the door and would either touch their genitals or have them touch his. She says he threatened them that, if they told anybody about what he was doing, a member of their family would be hurt. Finally, she testified that the accused touched her vagina with his hand on an occasion when she and her brother were being driven home by him.

"Lisa", a child not included in either information, testified that the accused's mother often left them alone with the accused. She testified that he sexually touched her and Debbie while they were alone with him in his bedroom. He made her touch his penis and he touched her vagina. She said that he made them bring him food. They did as he instructed "because he was the boss." She testified also that he threatened them.

"Jessica" testified about four sexual acts with the accused. She initially said these occurred when she was somewhere between the ages of four and six. Like the others, "Jessica" testified that the accused's mother would frequently leave the house and that the accused or his grandmother would take care of them. The sexual incidents "Jessica" described took place while she and the accused were in the living room together. He would make her suck his penis. She said that some of the other children would walk in and out while this was occurring. He threatened her that, if she told, she would be in "big trouble."

"Jennifer", also not included in either informations before this court, testified that either the accused or his older sister often kept an eye on them while the mother was away from the house running errands. She testified about three sexual incidents. The first began in the bathroom; the accused came in while she was pulling up her pants, took her to his bedroom and made her engage in mutual oral sex. She then described an incident where she approached him asking for some crackers because she was hungry and, in exchange for the crackers, he made her submit to open mouth kisses in which his tongue came into contact with her mouth.

"Jennifer" also testified that after considerable time had passed since the earlier incidents, one day the accused got her into the living room and told her he wanted to have sex with her again. He told her that he was also "doing it" to Debbie.

The accused and his sister both testified at the in limine hearing. In essence, the testimony of the accused was that because of a variety of school, athletic and work activities, he was not at home during the relevant hours when the children were there. He also filed a notice of alibi detailing these outside activities. To reinforce this testimony, his sister testified about the times the children came and went. Although she testified that she never left the children alone with the accused, she did acknowledge on cross-examination that it was possible that the accused could have been alone with the children at some time. (Though she would find it hard to believe.) She testified that when she left the house, the children would be left either in

Page 98

the care of her mother or a woman named Madeline Hengst.

In Debbie's case, the trial court disallowed admission of any of the proffered testimony except Jennifer's account of the oral sex and her testimony that the accused said he was "doing it to Debbie." 3 In Jessica's case, the court allowed more of the testimony but excluded evidence of any sexual acts that were not identical to those alleged by Jessica--i.e., touching the accused's penis. 4

The trial judge ruled that the evidence he disallowed was offered solely to prove bad character or propensity and, therefore, not valid "Williams rule" evidence. He further ruled that the evidence of the accused's other conduct was not sufficiently similar to the crimes charged. Also, the court ruled the evidence did not show these crimes occurred in a "familial or custodial" setting and thus could not be admitted for corroboration.

The trial court also made the additional finding, in conformity with section 90.403, Florida Statutes, that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. As the trial judge expressed: "Clearly, if allowed, the collateral crimes evidence would become the focal point of the case."

We agree with the trial court and deny the writs.

We assume for the purpose of this opinion that the proffered similar-fact testimony relating to the other young girls is "Williams rule" evidence. 5 The question then becomes

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whether the trial court erred in holding that the unfair prejudice to the accused by the admission of this evidence outweighs the probative value of the proffered evidence to prove a material fact in issue.

Since that portion of the proffered testimony which indicates that the young girls were left alone with the accused is admissible without invoking the Williams rule, it is only the probative value of the additional proof of the collateral crimes (that the other girls were also molested when they were left alone with the accused) which must be weighed against the unfair prejudice to the accused.

We were directed by the supreme court in the original Williams case 6 (110 So.2d 654) to carefully examine the proffered testimony to make sure that it is relevant:

As we did in Talley v. State, [160 Fla. 593, 36 So.2d 201 (Fla.1948) ], we emphasize that the question of the relevancy of this type of evidence should be cautiously scrutinized before it is determined to be admissible.

Williams at 662.

And in Heuring v. State, 513 So.2d 122 (Fla.1987), the supreme court stated:

Similar fact evidence that the defendant committed a collateral offense is inherently prejudicial. Introduction of such evidence creates the risk that a conviction will be based on the defendant's bad character or propensity to commit crimes, rather than on proof that he committed the charged offense ... To minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. (Emphasis added.)

Heuring at 124.

The Heuring court also held:

[To be admissible] the evidence must be relevant to a material fact in issue such as identity, intent, motive, opportunity, plan, knowledge, or absence of mistake or accident. See Sec. 90.404(2)(a).

Heuring at 124.

The supreme court in Heuring did announce a more liberal standard of admissibility (a greater willingness to risk a wrongful conviction) in cases involving sexual assaults allegedly committed in a familial context. Although the logic for this distinction is somewhat difficult to understand, 7 the effect of Heuring is not. The supreme court has now extended the Williams rule far beyond the section 90.404(2)(a) concept in cases involving familial relationships and has made it applicable any time the similar fact evidence tends to corroborate the victim's testimony. But this is not a case involving a familial relationship. A familial relationship is neither an element of the charge nor a fact alleged in the information. It is simply not a material fact in issue in this cause. The trial court specifically found as a matter of fact, supported by the record, that no familial (or

Page 100

custodial) relationship was properly presented to the court.

Whether the other girls were or were not themselves molested during the time they were left unattended with the accused is of little, if any, probative value as to the issue of whether the accused had the opportunity to abuse the alleged victims in these cases. For example, if he had not abused the other girls during these periods when they were alone with him, would that tend to prove that he lacked the opportunity to abuse the victims named in these cases when he was alone with them? We think not. 8

We agree with the trial court that the proof of the collateral...

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5 practice notes
  • Audano v. State, No. 93-00494.
    • United States
    • Court of Appeal of Florida (US)
    • August 17, 1994
    ...the analysis of the Hallberg decision on the term "custodial authority" is helpful. In contrast, in State v. O'Brien, 633 So.2d 96 (Fla. 5th DCA 1994), the court did not broaden the custodial exception where several young girls were molested when left in the care of the defendant ......
  • State v. Rawls, No. 82793
    • United States
    • United States State Supreme Court of Florida
    • October 27, 1994
    ...that "the defendant exercised parental-type supervision [over the child] on a daily basis at his home." Id. In State v. O'Brien, 633 So.2d 96 (Fla. 5th DCA 1994), no familial relationship was found to exist. The defendant's sister operated a baby-sitting service in their home for ......
  • Sheppard v. State, No. 94-991
    • United States
    • Court of Appeal of Florida (US)
    • August 18, 1995
    ...evidence of the familial relationship between Sheppard and C.W. See Heuring v. State, 513 So.2d 122, 125 (Fla.1987); cf. State v. O'Brien, 633 So.2d 96, 99 (Fla. 5th DCA), review denied, 639 So.2d 981 (Fla.1994). In Saffor, the Florida Supreme Court held that evidence of a collateral sex cr......
  • Petersen v. State, No. 93-1269
    • United States
    • Court of Appeal of Florida (US)
    • February 17, 1995
    ...There is no reference to the identity of the person from whom the information came or under what circumstances. See State v. O'Brien, 633 So.2d 96, 99-100 (Fla. 5th DCA), review denied, 639 So.2d 981 (Fla.1994). We are aware of the ruling of the Florida Supreme Court in State v. Townsend, 6......
  • Request a trial to view additional results
5 cases
  • Audano v. State, No. 93-00494.
    • United States
    • Court of Appeal of Florida (US)
    • August 17, 1994
    ...the analysis of the Hallberg decision on the term "custodial authority" is helpful. In contrast, in State v. O'Brien, 633 So.2d 96 (Fla. 5th DCA 1994), the court did not broaden the custodial exception where several young girls were molested when left in the care of the defendant ......
  • State v. Rawls, No. 82793
    • United States
    • United States State Supreme Court of Florida
    • October 27, 1994
    ...that "the defendant exercised parental-type supervision [over the child] on a daily basis at his home." Id. In State v. O'Brien, 633 So.2d 96 (Fla. 5th DCA 1994), no familial relationship was found to exist. The defendant's sister operated a baby-sitting service in their home for ......
  • Petersen v. State, No. 93-1269
    • United States
    • Court of Appeal of Florida (US)
    • February 17, 1995
    ...There is no reference to the identity of the person from whom the information came or under what circumstances. See State v. O'Brien, 633 So.2d 96, 99-100 (Fla. 5th DCA), review denied, 639 So.2d 981 (Fla.1994). We are aware of the ruling of the Florida Supreme Court in State v. Townsend, 6......
  • Sheppard v. State, No. 94-991
    • United States
    • Court of Appeal of Florida (US)
    • August 18, 1995
    ...evidence of the familial relationship between Sheppard and C.W. See Heuring v. State, 513 So.2d 122, 125 (Fla.1987); cf. State v. O'Brien, 633 So.2d 96, 99 (Fla. 5th DCA), review denied, 639 So.2d 981 (Fla.1994). In Saffor, the Florida Supreme Court held that evidence of a collateral sex cr......
  • Request a trial to view additional results

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