Titel v. State, 4D99-1905.

• Citation: 788 So.2d 286
• Decision Date: 15 November 2000
• Docket Number: No. 4D99-1905.,4D99-1905.
• Parties: Leon Alan TITEL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

788 So.2d 286

Leon Alan TITEL, Appellant, v. STATE of Florida, Appellee.

No. 4D99-1905.

District Court of Appeal of Florida, Fourth District.

November 15, 2000.

Rehearing Denied December 20, 2000.

Richard L. Jorandby, Public Defender, and Jennifer L. Brooks, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, J.

In this kidnapping/sexual battery case, the trial judge admitted similar fact evidence in the nature of sexual battery crimes committed more than 10 years earlier in Minnesota. Defendant argues that the only function of this similar fact evidence was to prove his propensity to commit the crimes charged. We reverse.

The victim in this case testified that she was on the phone at a gas station trying to get a ride to work when defendant overheard her conversation and offered her a ride. She went with him in his tractor-trailer but instead of taking her to work, he drove to the Farmer's Market, dropped his trailer, and pulled to the side of the road. He then grabbed her by the back of the head, pressed a knife to her neck, dragged her into the sleeping compartment of the truck and ripped her clothes off. He tied her neck, hands and feet with his belt, speaker wire and duct tape. Then he sexually battered her. When he had finished he threw her out, wrapped only in a mover's blanket. She walked approximately three miles to her mother's house and called police.

Defendant gave a conflicting account. He testified that she approached him at the gas station and offered him sex for $40. After he agreed, she voluntarily accompanied him to his truck. He then drove to the Farmer's Market where he had consensual oral sex and sexual intercourse with her.

In pretrial hearings, the court determined to permit the testimony of two witnesses as to similar fact evidence¹ involving defendant. The first witness, testified that in 1985 she was at a bar in Minnesota when defendant approached her and repeatedly offered to buy her a drink, which she refused. Later she left the bar and walked to her car alone. Defendant approached her and asked if he could have a ride home. She refused. He opened the car door and punched her in the face, knocking her to the other side of the car. When she attempted to escape, defendant grabbed her by the hair and drove off with her feet dragging on the pavement. Eventually, he took her to an abandoned house where he told her that he was going to rape her. He hit her several times, ripped her pants off, touched her vaginal area over her clothes, and tried to kiss her while holding her down.

When headlights approached and cars began stopping nearby, he became alarmed and drove off. On another road he again attempted to rape her. Ultimately, she convinced him to drive her home, lulling him into thinking she lived alone and would comply with his sexual advances once in her house. When they arrived, her brother was home. Defendant made a hasty retreat. Ultimately, he was arrested and admitted the attack.

The second witness testified that on a night in 1985, when she was 15 years old, she had finished baby-sitting for a couple who lived about two miles from her home. The father asked defendant, who was visiting the couple, to give her a lift home. Instead of driving home, he drove her to an isolated corn field where he stopped the car and, against her will, began kissing her. He removed her clothing and pinned her down on the car seat. She screamed and he put his hand over her mouth and told her that other girls had refused him several times and that he was not going to let her do the same. He raped her. Then, with ostensible compassion, he said he was sorry. She eventually reported the incident to the police and was present in court when he admitted to the attack and pleaded guilty to sexual assault.

The state argued that this similar fact evidence was admissible to show a common scheme, identity, and the absence of mistake. The defense at trial, however, was that the sexual acts were voluntary, even if illegal.² Identity was therefore not an issue. Nor did defendant claim that he was mistaken about whether the victim had consented. He timely objected to this evidence at trial. The jury found him guilty.

Our Evidence Code provides that similar fact evidence "is inadmissible when the evidence is relevant solely to prove bad character or propensity." § 90.404(2)(a), Fla. Stat. (1999)³; see also Chandler v. State, 702 So.2d 186 (Fla.1997)

; Hayes v. State, 660 So.2d 257 (Fla.1995); Peek v. State, 488 So.2d 52 (Fla.1986) (in every criminal case elements of offense must be established beyond reasonable doubt without resorting to character of defendant or to fact that defendant may have propensity to commit particular offense); Drake v. State, 400 So.2d 1217 (Fla.1981). Indeed similar fact evidence has been recognized as intrinsically damaging:

"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. Such evidence is, therefore, inadmissible if solely relevant to bad character or propensity to commit the crime." [c.o.]

Heuring v. State, 513 So.2d 122, 124 (Fla. 1987).⁴ Therefore, to minimize the risk of a wrongful conviction, outside the familial sexual battery context, similar fact evidence must meet a high standard of relevance: "[t]he charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses." Heuring, 513 So.2d at 124.

Thus to admit the similar fact evidence in this case, it had to be not only "strikingly similar" to the crime charged, but also share some unique characteristic pointing to defendant. Heuring, 513 So.2d at 124; Thompson v. State, 494 So.2d 203, 204 (Fla.1986) ("the identifiable points of similarity must pervade the compared factual situations, and, if sufficient factual similarity exists, the facts must have some special character or be so unusual as to point to the defendant."); Drake, 400 So.2d at 1219 ("Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant."). The trial court thought the proposed evidence "a signature or a fingerprint type of case," adding that the testimony was "very strong...