Wicker v. State
| Decision Date | 04 November 1983 |
| Docket Number | No. 83-246,83-246 |
| Parties | George WICKER, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
Appellant, George Wicker, Jr., was charged and found guilty of burglary, sexual battery and robbery. He was sentenced to seventy-five years for the burglary, thirty years for the sexual battery and ten years for the robbery, the terms to run consecutively with credit for time served.
The basic issues in the case relate to the introduction of evidence of collateral crimes pursuant to Williams v. State, 110 So.2d 654 (Fla.1959), and whether all the elements of the burglary count were sufficiently alleged in the charging document. We affirm on both of these issues, but set aside the sexual battery convictions on the authority of McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980). 1
On November 15, 1981, the victim of the offenses was awakened by a man while she was asleep on her couch. The man covered her mouth and told her not to scream. At the same time, another man was in her children's room and threatened to kill them if she moved. The two men, one heavyset with plaited hair and the other thin, conversed with one another, and the victim heard the thin man addressed as Willie. She was then raped by the heavyset man. After the rape was completed, he pulled a curtain over her face and the man called Willie raped her. Thereafter, the two men threw a coat over her head and told her to count to 100. After they left, she reported the incident and discovered that the men had stolen $15 in cash and food stamps. The victim later identified the appellant from a photopak and he was later arrested.
Appellant contends that the trial court erred in admitting evidence of other sexual batteries pursuant to Williams v. State. We disagree. Although evidence of collateral crimes will not be admitted solely on the basis of a mere similarity between the crime charged and the collateral crimes, if there is something particularly unique or unusual about the crime, such that the crime itself becomes a means of proving, for example, the identity of the perpetrator, the evidence of the collateral crimes becomes admissible. Sias v. State, 416 So.2d 1213 (Fla. 3d DCA 1982); Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974); Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974); Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974).
In the case at bar, the collateral crime evidence admitted was clearly unique, unusual and relevant to the crime charged. There are numerous similarities between this crime and the collateral crimes. In this case, as in each of the other cases, the victim was raped in the early morning hours, and afterwards, her head was covered and she was told to count to 100 or she would be killed.
We also find no merit in appellant's second point on appeal which concerns the denial of his motion to dismiss the charge of burglary as alleged in Count I of the information. In general, all the central elements of a crime must be stated in the charging document. State v. Dye, 346 So.2d 538 (Fla.1977). Appellant alleges that Count I is deficient because it alleges as an enhancing factor that he committed "an assault" within the burglarized structure without alleging all of the necessary elements of an assault. In Lindsey v. State, 416 So.2d 471 (Fla. 4th DCA 1982), the court held that an information charging assault as an aggravating factor in a burglary charge must contain elements of assault, even though the assault is not the direct charge. We specifically disagree with that holding in Lindsey. However, the ultimate decision in that case may be correct as the Fourth District could not determine from the record what facts the state relied on to prove an assault. Appellant was charged with burglary in Count I by entering the dwelling of the individual who, in Count II of the information, was alleged to be the victim of the sexual battery. Count I further alleges that appellant's entry into the dwelling was done with the intent to commit "theft and/or involuntary sexual battery and/or robbery," and that in the course of the burglary an assault was made on the victim of the alleged sexual battery.
We consider that our conclusion that Lindsey...
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Brlecic v. State, 83-2130
...degree burglary and the assault which formed the basis therefor. McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980); Wicker v. State, 445 So.2d 581 (Fla. 2d DCA 1983). See also State v. Pinder, 375 So.2d 836 (Fla.1979); State v. Harris, 439 So.2d 265 (Fla. 2d DCA Appellant also contends that ......
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