Zerbe v. State, No. 4D05-3099.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | May |
| Citation | 944 So.2d 1189 |
| Parties | Steven Michael ZERBE, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 20 December 2006 |
| Docket Number | No. 4D05-3099. |
v.
STATE of Florida, Appellee.
Page 1190
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The defendant appeals his convictions and sentences on one count of lewd and lascivious molestation and one count of child abuse. He has raised several issues, two of which we find have merit: (1) the denial of the defense motion for judgment of acquittal and (2) the admission of collateral act evidence. We reverse his convictions and remand the case to the trial court to vacate the conviction on the child abuse count and to conduct a new trial on the lewd and lascivious molestation count.
The defendant was a karate instructor; he operated his studio out of an old one-room schoolhouse. The students were both male and female and ranged in age from young children to adults. The schoolhouse was located in a wooded area and did not have indoor plumbing. The port-o-lets behind the schoolhouse were often turned over. As a result, the students used the wooded area and buckets as bathroom facilities.
Around Easter, a five-year-old female student was changing her clothing for class when her grandmother entered the dressing area and observed the child with her pants down around her ankles and the karate instructor standing nearby. She asked her granddaughter why her pants were down. The child replied that her
Page 1191
instructor had told her to pull them down.1 The child and grandmother remained at the studio for the activities that evening without further discussion of the incident. When the grandmother took the child home, she called the child's mother and told her what had happened.
This call prompted the child's mother to contact the parents of an eleven-year-old girl, who also attended class at the studio. Those parents in turn questioned their daughter, who initially had nothing to report, but then told them that the instructor pestered her to go to the bathroom. Subsequently, she told her parents about an incident that occurred approximately six months earlier.
According to the eleven-year-old, she was standing on the back porch of the schoolhouse and needed to use the bathroom. She did not want to go into the woods. The instructor told her it would be easier for her if she could urinate from a standing position. He told her to remove her pants and stand with her legs apart, at which point he touched her genital area. On another occasion, when the young girl did not have to use the bathroom, the instructor squeezed her stomach and said that maybe she could go then. These incidents involving the eleven-year-old are the basis of the molestation count.
The eleven-year-old child also told her parents that the instructor repeatedly told her to go to the bathroom, which annoyed her. It is these repeated requests that are the subject of the child abuse count. Throughout the trial, and specifically in closing argument, the State limited the child abuse count to these facts; it did not include the touching incidents as part of the child abuse count.2
Prior to trial, the State filed a "Notice of Intention to Use Hearsay Statement of Child Victim Pursuant to Florida Statute 90.803(23)." The Notice related to the use of statements made by the five-year-old to her grandmother, her mother, her father, and the detective. The defense moved to exclude those statements and argued the five-year-old was incompetent to testify. After a hearing on the matter, the trial court found the five-year-old competent and available to testify. The court further found sufficient safeguards of reliability because the statements could be corroborated by the grandmother's testimony.
The State then filed a "Notice Pursuant to Florida Statute 90.404(2)(a) and/or (b)." The State argued that the collateral act evidence (the incident with the five-year-old) was relevant because of the similarities of the two incidents: 1) the same location; 2) the same relationship between the defendant and the girls; 3) both girls were Caucasian and under the age of eleven; 4) the same form of touching; and 5) the incidents focused on the defendant's insistence that the girls go to the bathroom.
In its opening statement, the State did not refer to the incident involving the five-year-old. When the State called the five-year-old's grandmother to the stand, the trial court failed to give a limiting instruction. Shortly thereafter, the court held a sidebar conference and instructed the jury that it would receive "evidence of other crimes allegedly committed by [the defendant] . . . [the defendant] is not on trial for
Page 1192
any alleged offense against [the five-year-old]." (Emphasis added). The next morning, the defense advised the court that the limiting instruction had referred to the collateral acts as crimes, and requested that the jury be properly instructed. Specifically, the defense requested the court not to use the words "crime" or "wrongful". The trial court then told the jury it misread the instruction and re-instructed them as follows:
The evidence you are about to receive concerning evidence of other acts committed by the defendant will be considered by you only for the purposes of corroborating the testimony of [the victim] and you should consider it only as it relates to the issue of corroborating. And [the defendant] is not on trial for any acts involving the [five-year-old] child.
(Emphasis added).
The defense moved for a judgment of acquittal at the close of the State's case. With regard to the child abuse count, defense counsel argued there was absolutely no evidence that the defendant intended to cause mental injury to the child or that any mental injury had in fact occurred. The trial court denied the motion. The defense renewed the motion at the close of the defense case.
During closing arguments, the five-year-old's statements were prominent. The State recounted the grandmother's testimony. The defense argued that the eleven-year-old had fabricated the story.
The jury found the defendant guilty of the two counts...
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...2d 161 (Fla. 1977); McLean v. State, 934 So. 2d 1248 (Fla. 2006); Mendez v. State, 961 So. 2d 1088 (Fla. 5th DCA 2007); Zerbe v. State, 944 So. 2d 1189 (Fla. 4th DCA 2006)). As such, the claim in Ground One is unexhausted and procedurally defaulted.Page 12 In his Reply, Chase contends the f......
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Orange v. State, No. 4D11–2280.
...contention that the testimony was highly prejudicial, citing Green v. State, 27 So.3d 731 (Fla. 2d DCA 2010) and Zerbe v. State, 944 So.2d 1189 (Fla. 4th DCA 2006), the counselor's testimony was severely restricted and did not present Appellant in a negative light. The State elicited from t......
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Woolman v. State, Case No. 2D17-4459
...uncharged collateral crimes, is for an abuse of discretion. See Sabine v. State, 58 So. 3d 943, 946 (Fla. 2d DCA 2011) ; Zerbe v. State, 944 So. 2d 1189, 1193 (Fla. 4th DCA 2006). "The trial court's discretion is limited, however, by the evidence code." Wright v. State, 19 So. 3d 277, 291 (......
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Chase v. Sec'y, Case No. 3:15-cv-571-J-34PDB
...2d 161 (Fla. 1977); McLean v. State, 934 So. 2d 1248 (Fla. 2006); Mendez v. State, 961 So. 2d 1088 (Fla. 5th DCA 2007); Zerbe v. State, 944 So. 2d 1189 (Fla. 4th DCA 2006)). As such, the claim in Ground One is unexhausted and procedurally defaulted.Page 12 In his Reply, Chase contends the f......
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State v. Lanier, 4D06-4526.
...of performance and behavior." § 39.01(43), Fla. Stat. (2002); see DuFresne v. State, 826 So.2d 272, 277-78 (Fla.2002); Zerbe v. State, 944 So.2d 1189, 1193 (Fla. 4th DCA As to both S.Y and S.C., the state charged child abuse under section 827.03(1)(b)—that Lanier committed an "intentional a......
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Woolman v. State, Case No. 2D17-4459
...uncharged collateral crimes, is for an abuse of discretion. See Sabine v. State, 58 So. 3d 943, 946 (Fla. 2d DCA 2011) ; Zerbe v. State, 944 So. 2d 1189, 1193 (Fla. 4th DCA 2006). "The trial court's discretion is limited, however, by the evidence code." Wright v. State, 19 So. 3d 277, 291 (......
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Orange v. State, 4D11–2280.
...contention that the testimony was highly prejudicial, citing Green v. State, 27 So.3d 731 (Fla. 2d DCA 2010) and Zerbe v. State, 944 So.2d 1189 (Fla. 4th DCA 2006), the counselor's testimony was severely restricted and did not present Appellant in a negative light. The State elicited from t......