Woodfin v. State, No. 88-0605

CourtCourt of Appeal of Florida (US)
Writing for the CourtLETTS
Citation553 So.2d 1355
Parties15 Fla. L. Weekly D13 Robert Anderson WOODFIN, Appellant, v. STATE of Florida, Appellee.
Decision Date20 December 1989
Docket NumberNo. 88-0605

Page 1355

553 So.2d 1355
15 Fla. L. Weekly D13
Robert Anderson WOODFIN, Appellant,
v.
STATE of Florida, Appellee.
No. 88-0605.
District Court of Appeal of Florida,
Fourth District.
Dec. 20, 1989.

Richard L. Jorandby, Public Defender, and Susan D. Cline, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

ON REHEARING

LETTS, Judge.

We grant the motion for rehearing and substitute the following opinion:

Page 1356

The defendant was found guilty of two counts of sexual battery on a child under twelve, one count of attempted sexual battery on a child under twelve, and one count of indecent assault upon a child. The defendant claims that the court erred in permitting the testimony of witnesses quoting out-of-court statements made by each of the two victims, one ten years old and the other five years old. The defendant further argues that evidence of collateral crimes was improperly received and that the trial court abused its discretion when it allowed the five year old victim to "testify," unsworn, without making any determination as to her competency and understanding of the truth. We affirm.

Section 90.803(23), Florida Statutes (1987) establishes an exception to the hearsay rule and allows witnesses to testify to reliable out-of-court statements made by children no more than eleven years old. While there is more than one argument on appeal concerning lack of compliance with the requirements of this particular statute, we choose to address the question of whether the court made "specific findings of fact" as required by subsection (c) of the statutory language. We cannot but admit that the findings of fact as to some of the six witnesses were not very specific; however, they were sufficient for us to conclude that they substantially complied with the statute. See Stone v. State, 547 So.2d 657, 659 (Fla. 2d DCA, 1989). There were no objections to the testimony of the two physicians, except as to some specific questions which we find to be cumulative and not reversible. Likewise, whatever imperfections occurred in connection with the remaining witnesses, their testimony was merely cumulative.

In addition to the above, we believe that other perfectly admissible testimony overwhelmingly established guilt. First of all, not only did the two child victims testify, (the elder's version of events was particularly explicit), but, in addition, the defendant's own natural daughter, 1 aged twenty, gave evidence that during her very early childhood, she too had been a victim. As to her testimony, we quote from the appellant's brief:

Appellant would come home when she was alone and show her things he wanted her to do, there was never any real conversation; Appellant asked her to rub his penis with her hand in an up and down motion that he showed her; he touched her in her vaginal area; he asked her to place his penis in her mouth and suck on it; at some point his fingers had penetrated her vagina; he tried but failed to enter her vagina with his penis from behind while she bent over a footstool; although she could not remember exactly when these activities began, she believed they began in the first grade and continued to the fifth grade.

To be sure, the defendant insists that this collateral crime evidence was improper, irrelevant and inadmissible. However, we do not agree; and in a civil case, we recently held to the contrary. Carr v. Phillips, 540 So.2d 168 (Fla. 4th DCA 1989). Moreover, in criminal cases, prior similar acts by the defendant are admissible pursuant to section 90.404(2)(a). Such evidence is admissible to prove a material fact in issue, such as motive, opportunity, intent, preparation, plan, knowledge or identity. This is exactly what the prosecutor argued, sub judice, during the pretrial Williams Rule hearing. 2 Quite apart from statutory authority, such evidence has been allowed in other instances of sexual offenses against children, upon the theory that it is relevant to corroborate the testimony of the victim. Heuring v. State, 513 So.2d 122 (Fla.1987); Sampson v. State, 541 So.2d 733 (Fla. 1st DCA 1989). Notwithstanding, the defendant argues strenuously that the various acts here were dissimilar rather than similar to the point that the testimony admitted did nothing more than improperly establish

Page 1357

the defendant's bad character or propensity to commit criminal acts. We disagree. As to the argument that the acts were too remote time-wise, we quote from Heuring:

[T]he opportunity to sexually batter young children in the familial setting often occurs only generationally ... when the opportunity [arises].

513 So.2d at 124. Accordingly, the acts were, unfortunately, only too similar and we believe that Williams Rule testimony was admissible under the facts of this case. It was relevant and did not become a feature of the trial. The collateral crime testimony took up only five out of approximately three hundred pages of the trial record.

The medical testimony here was to the effect that both victims had had their hymens badly torn and one of them had contracted rectal venereal disease. Absent some congenital presence, it would be implausible to suggest that a five year old could contract venereal disease by any method other than sexual contact. Moreover, another state witness, whose testimony was never objected to, testified that the defendant admitted he might be guilty of lewd and lascivious behavior toward the victims.

Therefore, we hold, from all of the foregoing, that while section 90.803(23) may not have been complied with in every technical detail, there was sufficient compliance. Again, the evidence of guilt was overwhelming and we conclude beyond a reasonable doubt that the error did not affect the verdict, and that such error as did occur was harmless and therefore not reversible. §§ 59.041 & 924.33, Fla.Stat. (1987); State v. DiGiulio, 491 So.2d 1129 (Fla.1986). As our supreme court remarked in Hoffman v. State, 397...

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13 practice notes
  • Flanagan v. State, No. 87-871
    • United States
    • Court of Appeal of Florida (US)
    • July 19, 1991
    ...weight to the child's testimony. Id. See also Coy v. Iowa, 487 U.S. 1012, 108 S.Ct 2798, 101 L.Ed.2d 857 (1988); Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989), rev. den., 563 So.2d 635 (Fla.1990); Cook v. State, 531 So.2d 1369, 1371 (Fla. 1st DCA 1988), cert. denied, 489 U.S. 1084, 1......
  • Shapiro v. State, No. 96-0141
    • United States
    • Court of Appeal of Florida (US)
    • July 23, 1997
    ...Both victims were complimented and then digitally penetrated by Appellant in the office during a therapy session. See Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989); Rossi v. State, 416 So.2d 1166 (Fla. 4th DCA 1982); Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982); Anderson v. S......
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...crime witness is admissible in a prosecution of the defendant for sexual battery of his stepdaughter. See also Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA1989), rev. denied, 563 So.2d 635 The similarity of the method of attack in this case outweighs any dissimilarity. In determining whet......
  • Kopko v. State, No. 89-1497
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 1991
    ...overwhelming view that cumulative or repetitive evidence cannot be harmful error. 10 Another case similar to Salter is Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989), rev. denied, 563 So.2d 635 (Fla.1990). There six witnesses were allowed to testify concerning the out-of-court stateme......
  • Request a trial to view additional results
13 cases
  • Flanagan v. State, No. 87-871
    • United States
    • Court of Appeal of Florida (US)
    • July 19, 1991
    ...weight to the child's testimony. Id. See also Coy v. Iowa, 487 U.S. 1012, 108 S.Ct 2798, 101 L.Ed.2d 857 (1988); Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989), rev. den., 563 So.2d 635 (Fla.1990); Cook v. State, 531 So.2d 1369, 1371 (Fla. 1st DCA 1988), cert. denied, 489 U.S. 1084, 1......
  • Shapiro v. State, No. 96-0141
    • United States
    • Court of Appeal of Florida (US)
    • July 23, 1997
    ...Both victims were complimented and then digitally penetrated by Appellant in the office during a therapy session. See Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989); Rossi v. State, 416 So.2d 1166 (Fla. 4th DCA 1982); Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982); Anderson v. S......
  • Saffor v. State, No. 91-2667
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...crime witness is admissible in a prosecution of the defendant for sexual battery of his stepdaughter. See also Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA1989), rev. denied, 563 So.2d 635 The similarity of the method of attack in this case outweighs any dissimilarity. In determining whet......
  • Kopko v. State, No. 89-1497
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 1991
    ...overwhelming view that cumulative or repetitive evidence cannot be harmful error. 10 Another case similar to Salter is Woodfin v. State, 553 So.2d 1355 (Fla. 4th DCA 1989), rev. denied, 563 So.2d 635 (Fla.1990). There six witnesses were allowed to testify concerning the out-of-court stateme......
  • Request a trial to view additional results

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