State v. Richman

• Decision Date: 10 December 2003
• Docket Number: No. 2D02-4697.,2D02-4697.
• Parties: STATE of Florida, Petitioner, v. Alan Ira RICHMAN, M.D., Respondent.
• Court: Florida District Court of Appeals

861 So.2d 1195

STATE of Florida, Petitioner, v. Alan Ira RICHMAN, M.D., Respondent.

No. 2D02-4697.

District Court of Appeal of Florida, Second District.

December 10, 2003.

Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Petitioner.

Wilbur C. Smith, III, of Wilbur Smith Law Firm, Fort Myers, for Respondent.

PER CURIAM.

On this timely petition for writ of common law certiorari, the State challenges an amended, nonfinal pretrial order determining certain collateral crime evidence to be inadmissible. Because we conclude that the exclusion of the evidence constitutes a departure from the essential requirements of law and will irreparably harm the State's presentation of its case, we grant the State's petition.

The respondent, Alan Ira Richman, M.D., a rheumatologist, was charged by information with one count of sexual battery upon C.G., while she was physically helpless to resist; one count of lewd or lascivious molestation of A.G., an elderly or disabled person; and two counts of misdemeanor battery upon D.B. All three victims were patients of Dr. Richman, and each of the incidents giving rise to the charges were alleged to have occurred on a first or second visit to Dr. Richman's Lee County office during normal business hours. In these instances, Dr. Richman was purportedly administering treatment for joint pain relating to fibromyalgia, as was the case with victims C.G. and A.G., or for a cluster migraine headache possibly relating to lupus, as was the case with victim D.B.

On July 5, 2001, citing sections 90.402 and 90.404(2)(a), Florida Statutes (2000), the State filed notice of its intention to introduce collateral crime evidence at trial "for the purpose of showing proof of motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident, lack of consent, corroborating victim[s'] testimony, modus operandi, and rebutting defenses." Thereafter, hearings were held at which the State proffered the testimony of seven former female patients of Dr. Richman, each of whom claimed to have been sexually molested by him while receiving treatment during what was supposed to have been a routine office visit.

The trial court entered a written order finding that the collateral crime/similar fact testimony from three of the seven proposed State witnesses would be admissible at trial. The trial court specifically found that, pursuant to Heuring v. State, 513 So.2d 122, 124 (Fla.1987), the proffered testimony of State witnesses J.H., G.J., and I.L. demonstrated that their experiences with Dr. Richman were strikingly similar to those of the victims of the charged offenses. The trial court thus concluded that the testimony of those three witnesses was "relevant and ... admissible... for the purpose of establishing a modus operandi or a common plan, scheme[,] or design ... in committing the crime[s]" at issue.

Subsequently, the trial court, sua sponte, entered an amended written order declaring the State's similar fact evidence to be inadmissible in its entirety. The trial court indicated that, in light of this court's recent decision in Kulling v. State, 827 So.2d 311 (Fla. 2d DCA 2002), it had reconsidered its former evidentiary ruling. In doing so, it determined that Heuring was not controlling in this instance, because it "is applicable only to `cases involving sexual abuse by a person in familial authority.'" The trial court further concluded that, under Kulling, the characteristics of the acts described by the State's collateral crime witnesses were not "so [similar or] unique as to constitute fingerprint evidence." The trial court in fact found that the testimony of the State's witnesses merely demonstrated "limited points of factual similarity."

The State now properly petitions this court for certiorari relief. See State v. Pettis, 520 So.2d 250 (Fla.1988) (holding that certiorari petition is appropriate to review nonfinal pretrial evidentiary order in criminal case). The State is entitled to such relief if the trial court's order "constitutes a departure from the essential requirements of law from which the State may suffer irreparable injury." State v. Johnston, 743 So.2d 22, 24 (Fla. 2d DCA 1999) (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995)); see also State v. Gates, 826 So.2d 1064, 1066 (Fla. 2d DCA 2002) (stating that upon certiorari review of nonfinal order "State must prove that the trial court's ruling violated a clearly established legal principle which would result in material injustice").

In this instance, the State contends that it is not required to meet a high standard of admissibility, because the primary purpose of the collateral crime evidence at issue is to establish Dr. Richman's modus operandi—not to prove his identity, which the State suggests is a circumstance where collateral crime evidence must reach "fingerprint" level similarity to the charged offense. The State further contends that, even if fingerprint similarity is required in this context, the testimony of witnesses J.H., G.J., and I.L. indeed meets that standard. In either event, the State argues that neither Heuring nor Kulling applies here. It posits that Heuring allows for a lower standard of admissibility and controls only when sexual abuse occurs in a familial context. It claims that Kulling, which mandates the higher standard of fingerprint similarity, controls only when collateral crime evidence is offered for the sole purpose of corroborating the testimony of a sexual abuse victim.

We agree that Heuring does not apply in this instance.¹ We conclude, however, that the similar fact evidence at issue meets the fingerprint standard of admissibility enunciated in Kulling.

In Gore v. State, 599 So.2d 978 (Fla. 1992), a death penalty case, collateral crime evidence was admitted in a prosecution for first-degree murder, kidnaping, and robbery. The purpose of the collateral crime evidence was to establish the defendant's identity as the perpetrator of those crimes and his specific intent to commit them. The defendant argued that the collateral crime was too dissimilar to have been properly admitted into evidence. The Florida Supreme Court stated, however, that it "has never required the collateral crime[s] to be absolutely identical to the crime[s] charged." Id. at 984. It explained that, instead, it is the "pervasive similarities" or the "significant common features" of the current and collateral offenses that are determinative. Id. at 983. In upholding the admissibility of the subject collateral crime evidence, the Gore court acknowledged differences between the current and collateral incidents but concluded that "the similarities [were] pervasive, and the dissimilarities insubstantial." Id. at 984. It observed that the dissimilarities seemed to result only from differences in the defendant's opportunities rather than his modus operandi. Id. (citing Chandler v. State, 442 So.2d 171, 173 (Fla.1983)); see also Schwab v. State, 636 So.2d 3, 7 (Fla.1994); Cadet v. State, 809 So.2d 43, 47 (Fla. 4th DCA 2002). The Gore court ultimately stated that, in the past, it "has upheld the use of evidence of a collateral crime where the common points, when considered in conjunction with each other, establish a pattern of criminal activity which is sufficiently unique." 599 So.2d at 984 (citing Chandler, 442 So.2d at 173); see also State v. Ackers, 599 So.2d 222, 224 (Fla. 5th DCA 1992) (holding that, despite some differences between the charged offense and the collateral crime, similarities between the two were striking enough to establish a unique crime pattern).

In the instant case, the pervasive material similarities between the circumstances and conduct giving rise to the instant charges and those described by collateral crime witnesses J.H., G.J., and I.L. are uncanny. The current and collateral crime victims were, of course, female patients of Dr. Richman. All were referred to him for the same or similar maladies or combinations of illnesses such as fibromyalgia, arthritis, lupus, and/or migraines. All were seeking treatment for joint pain, with the exception of victim D.B., who complained of cluster headaches. All were on either their first or second afternoon office visit at the same Lee County location. In each instance, Dr. Richman treated the victim in his examining room, without a nurse present. Each incident arose under the guise of examination and treatment, where Dr. Richman would at some point begin examining and otherwise touching a part of the victim's anatomy that was completely unrelated to her medical complaint. Thus, in each instance, the visit would begin normally and ultimately end in some form of sexual molestation. While the nature and degree of sexual abuse varied from victim to victim, any dissimilarities seemed to result from the level of incapacity of a victim to resist or the sheer aggressiveness of a victim in rejecting Dr. Richman.

Because the similarities between the charged offenses and the collateral crimes here are striking enough to establish a unique crime pattern and are otherwise sufficient to meet the fingerprint standard for admissibility, the trial court departed from the essential requirements of the law in refusing to allow such evidence. The State will be irreparably harmed in the presentation of its case, see State v. Cohens, 701 So.2d 362, 364 (Fla. 2d DCA 1997), and will be without a legal remedy if Dr. Richman is acquitted. See State v. M.D., 706 So.2d 41, 42 (Fla. 2d DCA 1998). Therefore, we grant the petition for certiorari and quash the trial court's amended order excluding the collateral crime evidence at issue.

Petition granted.

SALCINES, KELLY, and CANADY, JJ., concur.

SALCINES, J., concurs with opinion.

CANADY, J., concurs with opinion in which KELLY, J., concurs. SALCINES, Judge, concurring.

Our conclusion is unanimous. We agree that the collateral...