Thomas v. State, 89-449

CourtCourt of Appeal of Florida (US)
Writing for the CourtZEHMER; SMITH; MINER; MINER
Citation599 So.2d 158
PartiesJames Lee THOMAS, Appellant, v. STATE of Florida, Appellee. 599 So.2d 158, 17 Fla. L. Week. D1123
Docket NumberNo. 89-449,89-449
Decision Date28 April 1992

Page 158

599 So.2d 158
James Lee THOMAS, Appellant,
STATE of Florida, Appellee.
No. 89-449.
599 So.2d 158, 17 Fla. L. Week. D1123
District Court of Appeal of Florida,
First District.
April 28, 1992.

Michael E. Allen, Public Defender, and David P. Gauldin, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.


ZEHMER, Judge.

The state's motion for rehearing filed in this appeal raises for the first time the

Page 159

contention that appellant waived and thus failed to properly preserve for appellate review his objection to the admissibility of the collateral crime evidence based upon his Georgia conviction of sexual battery. In view of the discussion of this waiver issue in the dissenting opinion and the state's attempt to now raise this issue, we revise footnote 1 of the original opinion filed August 30, 1991, to further clarify the reasons for our conclusion that appellant's objection to this evidence was properly preserved for appellate review. The original opinion filed August 30, 1991, remains unchanged except for these revisions to footnote 1 in the revised opinion.

After careful and lengthy consideration, we deny the state's motion for rehearing on this and all other grounds. The original opinion is withdrawn and the following revised opinion is substituted therefor.


James Lee Thomas appeals his conviction for sexual battery of a child under the age of twelve in violation of section 794.011(2), Florida Statutes (1987). He raises four points on appeal. He contends, first, that the trial court erred in admitting similar fact evidence of other crimes; second, that the court erred in admitting the videotape testimony of the victim; third, that the evidence presented at trial was legally insufficient to support his conviction; and fourth, that the trial court erred in failing to impose a sentence within the sentencing guidelines.

As to the third point challenging the legal sufficiency of the evidence, we affirm without discussion. The child victim's testimony is sufficient to send the case to the jury for decision.

We reverse on the first point, however, holding that the trial court's admission of the similar fact evidence of another crime is error requiring remand for a new trial because the similar fact evidence offered by the state and the facts underlying the instant case are not "strikingly similar" and fail to "share some unique characteristics or combination of characteristics which sets them apart from other offenses," Heuring v. State, 513 So.2d 122, 124 (Fla.1987), and such evidence is not relevant to prove any material fact in issue. Sec. 90.404(2)(a), Fla.Stat. (1987). In view of this disposition, we find it unnecessary to reach the two remaining points.

Thomas was charged by information with committing sexual battery on M.M., a child under 12 years of age, by penetrating her vagina with his penis in March 1988. Prior to trial the state filed a notice of intent to rely on similar fact evidence that stated in part:

On or about June 9, 1976, the defendant committed statutory rape, in Georgia, on a thirteen year old female. On December 7, 1976, he pled guilty to this offense in Bainbridge, Decatur County, Georgia (Case # F-575) before Superior Court Judge Culpepper, and was ordered to serve two years in prison and eight years on probation.

The notice then described the incident during which the female victim was driven to a plum orchard where the defendant had non-consensual sexual intercourse with her.

Appellant argues that evidence of the Georgia crime should not have been admitted. 1 He points out that the incident

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occurred more than twelve years prior to the instant offense, no familial or custodial setting was present in either case, and there was no blood relationship between appellant and the victim in the earlier case or between him and the alleged victim in this case. Furthermore, he argues, he pleaded guilty in the earlier case but denied his guilt in the instant case. Appellant contends that the two incidents are not so uniquely similar as to make the evidence of the earlier incident admissible under section 90.404(2)(a), Florida Statutes (1987), 2 codifying the so-called Williams rule. 3 On the contrary, he argues, the sole probative value of this similar fact evidence is to show his propensity to commit the crime charged, not to prove any material fact in issue, and section 90.404(2)(a) explicitly prohibits the admission of evidence solely to prove propensity.

The state counters that remoteness in time alone does not preclude admission of similar fact evidence. It argues for admissibility on the grounds that the evidence of the earlier incident is "relevant to show that Appellant availed himself of the opportunity to sexually molest young girls in his custody when the situation presented itself," that appellant occupied a position of trust in a familial context in both cases so the "familial setting" rule should apply, and that "the similar fact evidence in this case establishes a pattern of criminality that makes the prior act relevant to the commission of the act in question under" the Williams decision.

In the 1976 incident in Georgia, the victim was not related to appellant by blood, although she testified that "he was supposed to be my uncle" because he was married to her mother's sister. Appellant did not occupy the same household with her. The thirteen-year-old victim testified that appellant had come to her house and taken her and three other children to a plum orchard while her mother was away in Atlanta, that the other children were dropped off at the orchard, and then she was taken by appellant down a road where the two of them got out of the car and appellant forced her to have sexual intercourse on the ground in front of the car.

In the incident now under review, the alleged child victim lived with her mother and two sisters, one of whom had been fathered by appellant. Appellant did not live in the household, and there was no blood relationship between appellant and the child victim. The incident took place on an occasion when appellant was visiting the house, and he and the child rode in his car to the store to purchase something for her mother. The child, nine years old at the time of the incident, testified that appellant took her down a dark road and that the sexual activity occurred on the front seat of the car, and then they continued on to the store and then home. Appellant's testimony denied turning down the road and having any sexual activity with the child. There is no dispute about the fact that appellant and the child went to the store and returned on this occasion. The main issue in dispute is whether appellant stopped on the way to the store and committed the battery as claimed by the child.

The issue under discussion is governed by the pertinent provisions in the Florida Evidence Code. Section 90.401 states, "Relevant evidence is evidence tending to prove or disprove a material fact." Section 90.402 states, "All relevant evidence is admissible, except as provided by law." Section 90.403 states, "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." The sponsor

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note to this section explains that "nothing that fails to meet the tests of Secs. 90.401 and 90.403 may be admitted." Accordingly, section 90.404(2)(a) recognizes the interplay of section 90.401 and 90.403 by specifying that "similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue." Since similar fact evidence of other crimes is inherently prejudicial to a criminal defendant's right to a fair trial, such evidence is admissible under section 90.404(2)(a) only to prove a material fact in issue, that is, a material fact that is genuinely in dispute.

In view of the obvious conflicting nature of the interplay between sections 90.403 and 90.404(2)(a), there appears to be some inconsistency in the reported decisions involving the admission of similar fact evidence of other crimes in cases of sexual battery against children. However, the trend in the majority of these cases is seemingly toward a relaxation of the standard of admissibility. 4 While the supreme court's decision in Heuring appears to lessen the usually stringent rules governing the admissibility of evidence of other similar criminal acts in respect to cases in which the defendant occupies a position of trust in the familial context, in so doing the court reemphasized the following strict standard of relevance:

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. [Citations omitted.] Such evidence is, therefore, inadmissible if solely relevant to bad character or propensity to commit the crime. [Citations omitted.] To minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristics which sets them apart from other offenses.

513 So.2d at 124 (emphasis added). Continuing, the court quoted from People v. Haston, 69 Cal.2d 233, 444 P.2d 91, 70 Cal.Rptr. 419 (1968), to the effect that even where the offense charged and the collateral offense share certain marks of similarity, these marks may also be shared equally by other acts or offenses that may be committed by persons other than the defendant, and thus the marks of similarity...

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