State v. Paille, 90-02659

• Decision Date: 10 July 1992
• Docket Number: No. 90-02659,90-02659
• Parties: STATE of Florida, Appellant, v. Michael Troy PAILLE, Appellee. 601 So.2d 1321, 17 Fla. L. Week. D1686
• Court: Florida District Court of Appeals

Page 1321

601 So.2d 1321

STATE of Florida, Appellant, v. Michael Troy PAILLE, Appellee.

No. 90-02659.

601 So.2d 1321, 17 Fla. L. Week. D1686

District Court of Appeal of Florida,

Second District.

July 10, 1992.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellant.

James Marion Moorman, Public Defender, Bartow, and Megan Olson, Asst. Public Defender, Bartow, for appellee.

THREADGILL, Judge.

The state appeals from the trial court's order granting the appellee Paille's motion for new trial. The trial court granted a new trial on the ground it had erred at the jury trial by admitting evidence of similar acts not embraced by the information. We find that the trial court did not err in admitting such evidence and reverse the order granting a new trial.

Michael Troy Paille, was charged with two counts of sexual battery upon a person less than twelve years of age by a person under eighteen years of age, in violation of section 794.011(2), Florida Statutes (1985). The information alleged that between October 1, and December 25, 1986, Paille committed two counts of sexual battery upon the eight-year-old victim, by oral union with his sex organ and by vaginal union or penetration with his sex organ. At trial, the victim testified that the incidents occurred when she stayed with her father on weekends. Her father lived with Paille's mother. Paille and his brother also lived in the home. In addition to testifying to the charged offenses, the victim described three other incidents with Paille, two of which involved kissing and one which involved digital penetration. It is upon the admission of this evidence that the trial court based its order granting a new trial.

An order granting a new trial for errors of law should be reversed when, on appeal, it is determined such matters were either not error or were harmless error. State v. Lewis, 543 So.2d 760 (Fla. 2d DCA), rev. den., 549 So.2d 1014 (Fla.1989). Section 90.404, Florida Statutes (1985) provides that similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, but is inadmissible when relevant solely to prove bad character or propensity. In cases involving sexual battery in the familial context, courts have relaxed the strict standard normally applicable to similar fact evidence. Heuring v. State, 513 So.2d 122, 124 (Fla.1987). Evidence of prior sexual misconduct toward children has been held admissible in such cases to show a pattern of criminality, motive, intent, a lustful state of mind toward the victim, and the relationship between the victim and the offender. See e.g. Flanagan v. State, 586 So.2d 1085 (Fla. 1st DCA 1991); Padgett v. State, 551 So.2d 1259 (Fla. 5th DCA 1989); Gibbs v. State, 394 So.2d 231 (Fla. 1st DCA), aff'd, 406 So.2d 1113 (Fla.1981); and Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), rev. den., 392 So.2d 1373 (Fla.1981).

We believe the evidence of similar acts in this case was relevant to prove intent, preparation, plan and existence of a lustful attitude toward the victim. Although the victim did not testify as to the order in which the incidents occurred, it appears from the record that the incidents involving kissing and digital penetration preceded the charged offenses because this was the order in which the child testified about them. Furthermore, the victim testified that she did not tell anyone after Paille kissed her. It was not until after the charged offenses had occurred that the victim told a school friend what had happened. The fact that the incidents began with kissing and continued over a period of three months is relevant to prove that Paille planned and intended to lure the victim into sexual activity over time. We believe this is relevance beyond mere propensity. See Gibbs, at 232 (existence of lustful attitude toward victim indicating defendant's state of mind on date of charged offense constitutes relevance beyond mere propensity). Because there was no error in the initial admission of this evidence, the trial court's order granting a new trial cannot be based upon it.

Even if the evidence had not been relevant to prove a material fact in issue, we believe any error in admitting the evidence was harmless. The similar acts were only testified to by the victim. Evidence of similar sex acts against the victim in the case being tried is far less objectionable than evidence of similar acts against other victims. Smith v. State, 538 So.2d 66 (Fla. 1st DCA 1989). Because the victim herself testified to the similar fact evidence, the evidence did not serve to bolster her credibility as a witness, as the testimony of another witness might have done. The incidents involving kissing were also significantly less severe than the charged offenses and, as such, would not have indicated a likelihood that the appellant would have participated in the more severe conduct. Furthermore, defense counsel on cross-examination of the victim, elicited testimony concerning an incident in which Paille pulled down his pants and exposed himself to her. We find the evidence in question no more harmful than the testimony purposefully elicited by defense counsel. Finally, we note that the victim's testimony concerning the uncharged incidents was brief and was not made a feature of the trial.

The state in this case failed to provide notice of its intent to offer similar fact evidence at trial...