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Collateral Crimes Evidence in Lewd or Lascivious Molestation Cases

The Florida First District Court of Appeal recently discussed the admissibility of similar act evidence in crimes involving child molestation in Newman v. State of FloridaIn Newman, Appellant was charged with lewd or lascivious molestation of his eight-year-old adopted daughter. At trial, the State presented evidence that when the victim was eight years old and they lived in Arkansas, Appellant took her and one of her brothers on a trip to Florida. They stayed in a hotel, sharing a room with two beds. The victim testified during their first night, Appellant get into his bed naked while she slept in the other bed and her brother slept on the floor.  On the second night, Appellant went to bed naked again.  This time, he told the victim to get into his bed and let her brother sleep in the other bed.

The victim fell asleep in Appellant’s bed, wearing a nightgown.  She was later awakened by him rubbing her vagina over her underwear with his hands and repeatedly saying the word “sexy.” On the third night, Appellant again went to bed naked, directed the victim to sleep with him, and then rubbed her vagina and forced her to touch his penis while saying “sexy.” Appellant was subsequently arrested for lewd or lascivious molestation.

Prior to trial, the State filed a notice it intended to introduce similar fact evidence of other crimes, wrongs, or acts Appellant had committed against the victim’s sister, another one of his adopted children. At the Williams rule hearing, the victim’s sister testified when she was around twelve Appellant woke her up during the night while everyone was sleeping and showed her how to use a “purple thing that would vibrate.”  In the process, he touched and penetrated her vagina with his fingers because she “wasn’t doing it right.” He did those things for several nights and then never again. During the incidents, her siblings were nearby sleeping.

The State sought to introduce the testimony of the victim’s sister pursuant to section 90.404(2)(b), Florida Statutes, to corroborate the victim’s testimony and to rebut any defense claim of an accident, mistake, or that Appellant did the charged acts in his sleep, without knowledge of what he was doing. The defense objected on the ground the evidence did not have the requisite substantial similarity and was overly prejudicial. The trial court noted the girls were close in age at the time of the acts, both acts were committed at nighttime in bed, while everyone else was asleep, both acts consisted of Appellant touching the girls’ vaginas with his fingers, and both acts occurred on more than one occasion. Accordingly, the trial court admitted the evidence and Appellant was convicted and sentenced to life in prison.  He later appealed.

The appellate court first noted Florida Evidence Code section 90,404 governs the admissibility of evidence of other crimes or acts and provides, in part, “[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.”  The court then stated “[p]rior to admitting similar fact evidence under section 90.404(2)(b), the trial court must determine whether the State proved the prior act by clear and convincing evidence, whether the prior act is sufficiently similar to be relevant, and whether the probative value of the collateral crimes evidence is substantially outweighed by the danger of unfair prejudice under the balancing test of section 90.403, Florida Statutes.” The court then noted in determining whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should consider, among other factors unique to the case: “(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances.”

The court further observed a relaxed standard of admissibility of collateral acts evidence applies when the perpetrator is a family member or close friend of the victim.  While the strict similarity requirement is relaxed in this context, however, the court stated “there must be some similarity other than the fact that both offenses occurred in the family.”

Analyzing the relevant factors, the appellate court agreed the collateral acts evidence introduced by the State was relevant to show absence of mistake or accident to the extent Appellant might claim that he acted without the requisite intent in touching the victim because he was asleep, because it showed he both possessed and acted on urges to engage in inappropriate sexual conduct with young girls. The evidence further corroborated the victim’s testimony and demonstrated Appellant’s propensity for the criminal conduct.  As such, the court affirmed both the admissibility of the evidence and Appellant’s conviction.

If you are alleged to have committed the crime of lewd or lascivious molestation or battery and have similar acts in your background, the State may attempt to introduce evidence of those acts against you in your case.  Such evidence can become the feature of your case, thereby causing you to be unduly prejudiced to the point of resulting in your improper conviction.  An experienced Jacksonville criminal attorney can best help you avoid the introduction of evidence in your case that may confuse or mislead jurors by distracting them from the central issues of the trial.  Call me now for a free consultation to discuss I can best help you avoid unfair evidence being used against you in your sex crime case.

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