Turtle v. State, 90-2978

• Citation: 600 So.2d 1214
• Decision Date: 09 June 1992
• Docket Number: No. 90-2978,90-2978
• Parties: James Edgar TURTLE, Appellant, v. STATE of Florida, Appellee. 600 So.2d 1214, 17 Fla. L. Week. D1490
• Court: Court of Appeal of Florida (US)

Page 1214

600 So.2d 1214

James Edgar TURTLE, Appellant, v. STATE of Florida, Appellee.

No. 90-2978.

600 So.2d 1214, 17 Fla. L. Week. D1490

District Court of Appeal of Florida First District.

June 9, 1992.

Rehearing Denied July 10, 1992.

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Asst. Public Defender and Steven Been, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

James Turtle appeals his convictions of two counts of sexual battery on M.J.F., a boy less than 12 years of age, and one count of lewd and lascivious assault on the same child. The charged offenses arose out of an incident alleged to have occurred on March 4, 1990. He contends that the trial court committed reversible error in respect to three different evidentiary rulings: (1) permitting collateral crime evidence to become a feature of the trial so as to improperly inflame and prejudice the jury against him; (2) admitting certain hearsay statements by a child witness to bolster that witness's credibility; and (3) allowing the state's expert witness to give irrelevant and prejudicial testimony about the characteristics of a pedophile. Finding error on each point, we reverse and remand for a new trial.

Prior to trial, Turtle filed a motion in limine seeking to exclude any testimony or other evidence to be presented by Dr. John Hodges, a psychologist, or any other state expert witness concerning the psychological disorder known as pedophilia and other related psychological disorders involving sexual attraction of adults to children. Turtle also filed a written motion entitled "Defendant's Objection to Similar Fact Evidence" moving the court to exclude any evidence at trial concerning Turtle's alleged sexual abuse of another child, C.M.F. The circuit court denied both motions.

During trial, the court permitted the state, over appropriate objection by the defense, to introduce testimony by Dr. Hodges describing the characteristics of a pedophile. The court also permitted the state to present testimony from several witnesses, and to make argument to the jury concerning Turtle's alleged July 1989 sexual assault of another boy, C.M.F., who was about the same age as M.J.F. and was referred to at trial by the same first name as M.J.F., the child involved in these charges (we refer to them by the fictitious name "Mat" in this opinion). The jury found Turtle guilty as charged, and a judgment of conviction was entered on the verdict. The court sentenced Turtle to two consecutive terms of life in prison with 25-year mandatory minimum sentences on the sexual battery counts, and to a consecutive 5 1/2-year term of imprisonment on the lewd and lascivious assault count. The court denied Turtle's amended motion for a new trial.

Turtle first contends that the circuit court erred in admitting over his objection extensive testimony regarding criminal offenses Turtle allegedly committed against the other young boy, C.M.F., because that evidence was probative only of a bad character and propensity to commit the alleged offenses against M.J.F., was intended to portray him as a pedophile who befriended, then abused, young boys, and that the court wrongfully allowed this evidence to become a feature of the trial. The similarities shown between the two incidents, Turtle argues, are that he befriended both boys, gave both boys gifts, allegedly molested both boys, and then told them not to tell anyone about the incidents. He contends that these circumstances lack the unique characteristics of similarity necessary to set these incidents apart from behavioral activities common to virtually all child sexual abuse cases. He further argues that, even if evidence of this alleged collateral crime were admissible, the extent of the evidence of Turtle's alleged molestation of the other boy, C.M.F., presented by the state became a feature of the trial, as it included testimony of no less than five witnesses at trial, consumed more than half of the trial testimony presented by the state, and was repeatedly emphasized by the state during closing argument. Moreover, Turtle argues, the undue prejudice caused by this extensive evidence and the state's repeated reference thereto was exacerbated by the confusion flowing from the similarity of the names of the two boys ("Mat") and the frequency by which the prosecutor and witnesses (and the judge on at least one occasion) referred to each boy using the same name.

The state argues that the trial court did not abuse its discretion by admitting evidence that Turtle had committed acts upon C.M.F. similar to those charged in this case, because Turtle's actions against C.M.F. were so similar to his actions toward M.J.F. (the evidence tended to prove that both boys were about the same age at the time of the molestations, that Turtle befriended both boys, gave them money and gifts, molested them in private, and told them not to tell anybody that he had molested them) that they were relevant to show that Turtle had engaged in a "system or general pattern of criminality involving young boys whom he befriended." The state further contends that this collateral crime evidence was also relevant to rebut Turtle's attempt to show that it was another individual rather than himself who had molested the alleged victim, M.J.F.

We agree with Turtle that the trial court erred in permitting the state to present such extensive evidence about Turtle's sexual assault of the other child, C.M.F., and to argue so extensively about that episode during closing argument. Under the circumstances of this case, this collateral transaction evidence became such a feature of the trial that Turtle was unduly prejudiced and deprived of his right to a fair trial. It is unnecessary to describe in sordid detail the extensive testimony presented on this issue; suffice it to say that on this record, it was often difficult to determine which of the two boys was the subject of the charges being tried in this case. The evidence concerning the witness C.M.F. consumed more than half of the trial proceedings, and was presented not only through the testimony of C.M.F., but also through the testimony of: (1) C.M.F.'s mother, who testified prior to C.M.F. in detail about what C.M.F. told her took place during his visit with Turtle; (2) Dr. Hodges, who was recalled after C.M.F.'s testimony and testified as to his interviews with C.M.F. and the symptoms of child sexual abuse that C.M.F. exhibited; (3) Officer Enderson, who testified concerning an interview with C.M.F. and his mother about an alleged sexual assault upon C.M.F. and what C.M.F. told him happened; and (4) Officer Waldron, who participated in the police investigation of C.M.F.'s allegations against Turtle and testified as to his interview with Turtle concerning C.M.F.'s allegations. The prosecutor then repeatedly referred to the incidents involving C.M.F. during closing arguments. For example, on at least four occasions the prosecutor argued that C.M.F. was "important in this case." He further argued, "[w]ouldn't it make sense if you were falsely accused by a young boy, i.e., [C.M.F.], to stay away from children until those charges are resolved, sure it would, unless you do these types of things that Mr. Turtle is charged with?" The prosecutor also argued, over defense objection, that Turtle picked up children like C.M.F., who did not have a father figure, by giving them toys and games and taking them to places that they normally would not be able to go, and that this action was consistent with testimony from Dr. Hodges about "the type of people who do these crimes." The prosecutor compared M.J.F.'s and C.M.F.'s vulnerability and how each reacted to the molestations. At one point during trial, even the trial judge expressed concern that the similar fact evidence was becoming a feature of the trial. Furthermore, the prejudicial effect of this error was compounded by the fact that at various times during trial, some of the witnesses, including Dr. Hodges and Officer Kelley, as well as the prosecutor, and the judge on at least one occasion, referred to both boys by the same name ("Mat"), so that at times the jury could well have been confused as to which "Mat" the witnesses or parties were referring.

The admissibility of similar fact evidence is governed by section 90.404(2)(a), Florida Statutes, which states:

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

To meet the strict standard of relevance and admissibility prescribed by section 90.404(2), Florida Statutes (1989), the charged offense and the collateral offense "must be not only strikingly similar, but they must also 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). The evidence must be clearly relevant to establish a material fact in issue such as identity, motive, opportunity, plan, knowledge, or absence of mistake or accident. Id. However, even when relevant, such evidence nevertheless may be inadmissible under section 90.403 "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." It is the obligation of the court to weigh the probative value of such evidence against undue prejudicial effect, and substantial undue prejudice under this latter section has been found when the evidence of collateral crimes has been allowed to become a "feature of the trial instead of an incident," in respect to both the quantum...