Opinion
No. 1D19-2209
02-26-2021
Paul MOORE, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, Tallahassee, and Andrea Flynn Mogensen of Office of Andrea Flynn Mogensen, P.A., Sarasota, for Appellant. Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, Tallahassee, and Andrea Flynn Mogensen of Office of Andrea Flynn Mogensen, P.A., Sarasota, for Appellant.
Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
B.L. Thomas, J.
Appellant was charged with sexual battery by a person over the age of eighteen on a person under the age of twelve. Appellant was also charged with lewd or lascivious molestation and showing pornography to the victim. He is the biological father of the victim.
At trial, the victim testified that she first met Appellant when she was eleven. Appellant bought her clothes and took her to get her hair done. When she stayed with Appellant, she and Appellant slept in the same bed. She testified that on three occasions when she was asleep, Appellant touched her breasts and committed vaginal-penile penetration. The victim also stated that once, after she fell asleep while watching television, Appellant woke her and committed vaginal-penile penetration. Although he did not threaten the victim, Appellant told her that if she told anyone, he would go to jail and she would not have a father in her life.
Appellant's other daughters, B.D. and A.D., testified to his other acts of child molestation. When they visited Appellant, they also slept in the bed with him. B.D. testified that when she was between five and seven years old, Appellant rubbed her vagina with his hands while she was in his bed. She stated this happened every time she visited. A.D. testified that when she was fourteen, she was sleeping in Appellant's room when Appellant touched her vagina with his hands and attempted penile penetration.
A jury found Appellant guilty as charged on all counts. He was sentenced to life imprisonment and designated a sexual predator. Appellant argues that the trial court violated his due process rights by failing to hold a competency hearing and failing to make an independent determination of his competency. He also asserts that the trial court erred by limiting his confrontation rights under section 794.022(2), Florida Statutes, admitting evidence of insufficient similar act evidence, and admitting child hearsay that was not clearly reliable. We disagree and affirm.
I. Competency
"In determining whether a defendant is competent to proceed, the test is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’ " Santiago-Gonzalez v. State , 301 So. 3d 157, 169 (Fla. 2020) (quoting Hill v. State , 473 So. 2d 1253, 1257 (Fla. 1985) ). Once a court finds a defendant may not be competent to proceed, due process requires the court to order an evaluation, hold a hearing, independently evaluate the defendant's competency, and enter a written order on competency. Sheheane v. State , 228 So. 3d 1178, 1180–81 (Fla. 1st DCA 2017) ; Hendrix v. State , 228 So. 3d 674, 676 (Fla. 1st DCA 2017).
Throughout the proceedings, Appellant's competency was carefully monitored by the trial court. The trial court appointed an expert to evaluate Appellant in 2017 and 2018. Appellant was uncooperative, but the expert concluded that Appellant was competent based on his observations and a review of collateral evidence. On the eve of trial in 2019, defense counsel moved for a continuance to explore issues related to Appellant's competency. Defense counsel did not file a suggestion of mental incompetence under Florida Rule of Criminal Procedure 3.210. An expert met with Appellant and summarized his confidential evaluation to defense counsel. Defense counsel reported she no longer had concerns about Appellant's competency.
At a hearing, defense counsel advised there were no competency issues, and she had successfully consulted with Appellant about his case. The trial court correctly noted that a stipulation to competency was not sufficient for the record. See Dougherty v. State , 149 So. 3d 672, 678 (Fla. 2014). The parties stipulated to the trial court accepting the expert's written document, which the expert emailed to the court later that day, in place of live testimony. The expert summarized his meeting with Appellant and opined Appellant was competent to proceed. The trial court independently determined, through a review of the record, Appellant's nearly ninety letters to the court, prior expert reports from 2017 and 2018, and the trial court's own observations from previous interactions with Appellant, that Appellant was competent to proceed to trial. Thus, the trial court properly determined that Appellant was competent to proceed to trial. See Santiago-Gonzalez , 301 So. 3d at 169 ; see Sheheane , 228 So. 3d at 1180–81.
II. Rape Shield Statute
Appellant argues the trial court committed reversible error by excluding evidence of the victim's prior consensual sexual activity that would have given context to the circumstances under which the victim first reported the allegations against Appellant. The victim first reported Appellant's alleged crimes during a meeting with her mother and teacher to discuss the victim's sexual activity with a classmate. Appellant asserts that by excluding the evidence of the victim's consensual sexual activity, the trial court deprived him of his right to full and fair cross-examination to show that the victim lied when she accused Appellant.
Section 794.022, Florida Statutes (2016), codifies Florida's relevancy rules as applied to the sexual behavior of victims of sexual crimes. Teachman v. State , 264 So. 3d 242, 246 (Fla. 1st DCA 2019) (citing Carlyle v. State , 945 So. 2d 540, 546 (Fla. 2d DCA 2006) ). The statute states:
Specific instances of prior consensual sexual activity between the victim and any person other than the offender may not be admitted into evidence in a prosecution under s. 787.06, s. 794.011, or s. 800.04. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue , such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.
§ 794.022(2), Fla. Stat. (emphasis added).
We note that the exception in section 794.022(2) is not applicable to the present facts. But "[a] defendant's ‘right to full and fair cross-examination, guaranteed by the Sixth Amendment, may limit [ section 794.022 ]’s application when evidence of the victim's prior sexual conduct is relevant to show bias or motive to lie.’ " Teachman , 264 So. 3d at 246 (quoting Kaplan v. State , 451 So. 2d 1386, 1387 (Fla. 4th DCA 1984) ); see Lewis v. State , 591 So. 2d 922, 923 (Fla. 1991). "[A] trial court must weigh and balance the protection of the Rape Shield Statute with the defendant's constitutional right to be afforded with an ‘adequate and fair opportunity to show bias and motive of the victim’ without delving into the sexual nature of her relationship with another." Arroyo v. State , 252 So. 3d 374, 377 (Fla. 3d DCA 2018) (quoting Marr v. State , 494 So. 2d 1139, 1143 (Fla. 1986) ).
Appellant asserted two theories of defense: the victim lied to her mother so her mother would not be upset, or the victim lied to "avoid having Appellant learn that [she] was sexually active with a boyfriend and that her mother knew that to be true."
Appellant was able to adequately develop his theory of defense without delving into the victim's prior sexual relations. See Arroyo , 252 So. 3d at 378 (citing Marr , 494 So. 2d at 1139 ) (holding defendant's Sixth Amendment rights were not violated where the defense was able to develop his theory of defense that victim had a motive to lie about having consensual sex with defendant because she wanted to resume her relationship with someone else). During cross-examination, the defense developed the fact that the victim disclosed Appellant's actions to her mother after her teacher "had a separate issue that [she] wanted to talk to [the victim] about." The victim testified she was scared to tell her mother about "that issue" because she was worried that her mother would be mad. The victim also testified that she did not tell the defense's witness that her mother told her to fabricate the allegations against Appellant.
In addition, the defense's witness testified that the victim stated her mother instructed her to fabricate the allegations. Thus, the trial court did not err because Appellant adequately presented his theory of defense without contravening the statute, and Appellant's Sixth Amendment rights were not violated. See Arroyo , 252 So. 3d at 378 (citing Floyd v. State , 503 So. 2d 956, 957 (Fla. 1st DCA 1987) ); cf. Lewis , 591 So. 2d at 923 (holding that application of rape shield law was erroneous where it interfered with defendant's ability to develop his theory of defense).
III. Williams Rule Evidence
Appellant argues the trial court erred by admitting Williams rule evidence that was not substantially similar and that became a feature of the trial. We review the admissibility of evidence for an abuse of discretion. Stewart v. State , 147 So. 3d 119, 123 (Fla. 1st DCA 2014) (citing Easterly v. State , 22 So. 3d 807, 814 (Fla. 1st DCA 2009) ).
Williams v. State , 110 So. 2d 654 (Fla. 1959).
This Court held:
The Legislature has adopted a "relaxed standard of admissibility" with regard to Williams rule evidence in child molestation cases. See Easterly, 22 So. 3d at 814. That standard provides:
In 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.
§ 90.404(2)(b) 1., Fla. Stat. (2010).
Id. at 123–24.
Under the relaxed standard of admissibility, relevance of Williams rule evidence will not primarily turn on an analysis of the similarity of the offenses. See id. (citing McLean v. State , 934 So. 2d 1248, 1259 (Fla. 2006) ). However, the similarity of the offenses can assist in deciding the relevancy of the evidence and any analysis under section 90.403, Florida Statutes. Id. (citing Easterly , 22 So. 3d at 815 ).
The trial court found that the testimony of A.D. and B.D. was proven by clear and convincing evidence. Appellant focuses on the dissimilarities of the evidence in arguing that the evidence was more prejudicial than probative, but " ‘similar’ does not mean ‘exactly the same.’ " See Stewart , 147 So. 3d at 124 (quoting Adkins v. State , 605 So. 2d 915, 919 (Fla. 1st DCA 1992) ). Here, the victims were biological children of Appellant, and all the acts happened while they were asleep in Appellant's bed. All three victims testified that Appellant touched their vaginas. That the acts against the victim also involved penile penetration is not dispositive. See id. (quoting Adkins , 605 So. 2d at 919 ). A.D. and the victim were close in age, and the incidents happened during the same time period. And although B.D. alleged an act further removed in time to the acts charged, the trial court noted that the lack of frequency was another similarity. The crimes occurred infrequently over a long time period, in part because the daughters did not have consistent contact with Appellant. Thus, the trial court correctly considered all the factors in determining that the evidence was admissible. The evidence also did not become an impermissible feature of the trial. Here, the State did not unduly focus on the evidence in its arguments. In addition, the jury was instructed on multiple occasions as to the limited purpose of the Williams rule evidence.
IV. Child Hearsay
Appellant argues the trial court abused its discretion by determining that the victim's interview with the Child Protection Team had sufficient safeguards of reliability where the victim did not clearly understand the concepts of "truth" or "lie," reported the abuse late, and was repeatedly led by the interviewer. But Appellant did not preserve the issue for appeal as he did not contest the sufficiency of the findings below. See McCloud v. State , 91 So. 3d 940, 940–41 (Fla. 1st DCA 2012) (citing Elwell v. State , 954 So. 2d 104 (Fla. 2d DCA 2007) ("[B]ecause the appellant did not raise the issue in the trial court, where a claimed deficiency in the written order could be corrected, the issue has not been preserved for appeal.").
Furthermore, even if the child hearsay were inadmissible, which it was not, the victim testified at trial and was subject to cross-examination. There is no reasonable possibility that it contributed to the verdict. See State v. DiGuilio , 491 So. 2d 1129 (Fla. 1986).
AFFIRMED .
Ray, C.J., and Kelsey, J., concur.