Zerbe v. State, 4D05-3099.

• Decision Date: 20 December 2006
• Docket Number: No. 4D05-3099.,4D05-3099.
• Parties: Steven Michael ZERBE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

944 So.2d 1189

Steven Michael ZERBE, Appellant, v. STATE of Florida, Appellee.

No. 4D05-3099.

District Court of Appeal of Florida, Fourth District.

December 20, 2006.

Rehearing Denied January 24, 2007.

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 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 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 charged. The jury also answered a special interrogatory requested by the State to avoid a perceived double jeopardy issue. The question was: "Did [the defendant] commit the crime [of child abuse] without engaging in conduct that was lewd or lascivious?" The jury responded in the negative.

Immediately after the jury was discharged, the State raised the double jeopardy issue with the trial court. The State was concerned that the jury's answer to the special interrogatory meant that the defendant did not commit child abuse outside of the lewd or lascivious act for which he was charged with molestation. Therefore, it posited the defendant's right against double jeopardy would be violated if the court sentenced the defendant on the child abuse count. To avoid the problem, the State did not include the child abuse count on the defendant's scoresheet. Subsequently, however, the State reversed its position and advised the court that it could sentence the defendant for both offenses. Nevertheless, the State did not ask the court to do so.

The trial court denied the defense motion for new trial and adjudicated the defendant guilty on the molestation count. The court sentenced the defendant to ninety months in prison followed by fifteen years of sex offender probation and found him to be a sexual predator. The court also adjudicated him guilty of child abuse but did not sentence him on that count. The trial court denied the defense motion for rehearing.

The defendant first argues the trial court erred when it denied his motion for judgment of acquittal on the child abuse count. The State responds that the statute does not require proof of an actual injury.

Generally, "an appellate court will not reverse a conviction that is supported by competent, substantial evidence." Johnston v. State, 863 So.2d 271, 283 (Fla.2003). However, a judgment of acquittal is proper if the State fails to prove a prima facie case of guilt when the evidence is viewed in the light most favorable to the State. Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001). We review court rulings on motions for judgment of acquittal de novo. Johnston, 863 So.2d at 283.

The legislature defined child abuse, in part, as "[a]n intentional act that could reasonably be expected to result in . . . mental injury to a child." § 827.03(1)(b), Fla. Stat. (2002). The term "mental injury" is defined as "an injury to the intellectual or psychological capacity of a child as evidenced by a discernable and substantial impairment in the ability to function within the normal range of performance and behavior." § 39.01(43), Fla. Stat. (2002); see DuFresne v. State, 826 So.2d 272, 277-78 (Fla.2002). The offense of child abuse under subsection (b) does not require proof of actual injury; rather, the offense includes any act that is done intentionally that could reasonably be expected to cause mental injury. Clines v. State, 765 So.2d 947, 948 (Fla. 5th DCA 2000).

To survive a motion for judgment of acquittal, the State must establish a prima facie case. The State chose to proceed on the child abuse count solely on the allegation that the defendant pestered the victim about going to the bathroom. In closing argument, the...