State v. Rush, 81-546
| Decision Date | 10 June 1981 |
| Docket Number | No. 81-546,81-546 |
| Parties | STATE of Florida, Petitioner, v. Joseph RUSH, Respondent. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for petitioner.
Fred Pflaum of Ginsburg, Byrd, Jones & Pflaum, P.A., Sarasota, for respondent.
The state petitions for a writ of common law certiorari seeking this court's review of a pretrial ruling which granted respondent's motion in limine.
The state filed an information against respondent charging him in Count I with lewd and lascivious assaults upon his stepdaughter, and in Count II with the same offense against a babysitter. Both girls were under the age of fourteen and both offenses took place within the respondent's home. The alleged offenses against the stepdaughter occurred over a period of several years and involved a greater degree of sexual molestation than did the incident involving the babysitter. The alleged single incident involving the babysitter occurred when the respondent attempted to fondle the babysitter's breasts while she was holding his one-year-old child.
Respondent's motion was based on the lack of sufficient similarities in the incidents involving the two minor girls so as to bring them within the application of the rule of admissibility laid down in Williams v. State, 110 So.2d 654 (Fla.1959), and codified in the Florida Evidence Code, section 90.404(2), Florida Statutes (1979).
The trial court was confronted with the decision of this court in Duncan v., State, 291 So.2d 241 (Fla.2d DCA 1974), and the divergent opinion of the First District in Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), both of which construed the Williams Rule concerning admissibility of similar fact evidence in cases involving child sexual offenders. Notably, both cases were decided prior to the effective date of the Florida Evidence Code. The trial court, though it preferred the rationale of Cotita, felt bound by this court's decision in Duncan. Because the trial judge properly followed the rule of law announced by this court in Duncan and as codified in the Florida Evidence Code, we cannot find that he departed from the essential requirements of law as it existed when he made his ruling. Accordingly, since we cannot make such a finding, we cannot grant certiorari. However, we do not feel that a simple denial of certiorari is adequate in this case and feel compelled to comment further.
The trial court in this case felt compelled by Duncan to grant the motion in limine and also to sever the two counts and require them to be tried separately. Section 90.404(2), which codifies Williams and Duncan, also dictates the ruling entered by the trial court. However, the trial judge was deeply troubled by his ruling and expressed his concern as follows:
I think it's an anachronism, and nowhere present in any other phase of the law except sexual offenses, which portrays, ... an insensitivity of appellate judges relative to the pragmatics of the administration of justice at the trial level and at the community level, ... (W)hich means that some old man can molest twelve kids in his home and not be able to be charged with more than one at a time under existing law, ... which is absurd....
....
... I hope that you (state) will appeal both, so that they will have both of these absurdities for their consideration, and I hope they will change their minds, which means that I'm going to grant your motion in limine....
We are sympathetic to the frustrations of the trial judge and the public regarding the state of the law with respect to admissibility of similar fact evidence in child sexual molestation cases. We, too, feel a time for change has come. However, since the adoption of the Florida Evidence Code, any change must now come from the legislature and not from the courts.
The issue that concerned the trial judge and that troubles the public is the prohibition by the Williams Rule and section 90.404(2) of the use of similar fact evidence to prove propensity in child sex molestation cases.
By their very nature, child sexual molestation cases occur, more often than not, in seclusion without other witnesses present. It is suspected that an in-depth study of such incidents would demonstrate that the actions of the aggressor constitute a pattern of conduct rather than an isolated incident. The public and trial judges have long been...
To continue reading
Request your trial
-
Padgett v. State, 88-1786
...possessed a similar state of mind toward his stepdaughter on the date of the alleged offenses." Gibbs at 232.4 See also State v. Rush, 399 So.2d 527 (Fla. 2d DCA 1981); Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1373 (Fla.1979); Banks v. State, 298 So.2d 543 (......
-
Sias v. State, 80-1263
...on propensity evidence in child sexual molestation cases, see, e.g., Espey v. State, 407 So.2d 300 (Fla. 4th DCA 1981); State v. Rush, 399 So.2d 527 (Fla. 2d DCA 1981), we are bound to follow not only Williams, but its codified version. While it is true, as was observed in Cotita v. State, ......
-
Potts v. State
...for review denied, 408 So.2d 1094 (Fla.1981). We are not faced here with the problems considered by Judge Campbell in State v. Rush, 399 So.2d 527 (Fla. 2d DCA 1981). In Rush the defendant objected to the introduction of similar fact evidence due to a lack of sufficient similarities in the ......
-
Hodge v. State, 81-1291
...So.2d 241 (Fla. 2d DCA 1974), in which this court pointed out that proof of modus operandi is not an end in itself. In State v. Rush, 399 So.2d 527 (Fla. 2d DCA 1981), we acknowledged the difficulty of reconciling the proving of a pattern of criminality with the dictates of section 90.404(2......
-
"A dangerous bend in an ancient road": the use of similar fact evidence for corroboration.
...another name. Duncan, 291 So. 2d at 243. Seven years later, that court called Duncan an "anachronism" and an "absurdity." State v. Rush, 399 So. 2d 527, 528 (Fla. 2d D.C.A. 1981). A short time later, the court limited Duncan to oblivion, Giddens v. State, 404 So. 2d 163, 164 n.2 (Fla. 2d D.......