Opinion
No. 1D18-2183
12-31-2019
Billy Wade MATHIS, Appellant, v. STATE of Florida, Appellee.
Luke Newman of Luke Newman, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
Luke Newman of Luke Newman, P.A., Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
Osterhaus, J.
Billy Wade Mathis was charged and convicted of sexual battery on a person less than twelve years of age and two counts of lewd or lascivious molestation. On appeal, Mathis argues, among other things, that the trial court abused its discretion in admitting evidence of his suicide attempt. We affirm.
I.
In late 2016, the father of a teenage girl notified law enforcement of his daughter's allegations of being molested by Mathis as a young girl. Mathis was a former boyfriend of the victim's mother, who lived with the victim and her mother between 2005 and 2010. Before the State filed charges against Mathis, law enforcement received a call about an attempted suicide. When a deputy sheriff responded, she discovered Mathis sitting in the driver's seat of his truck having difficulty breathing. Mathis had ligature marks around his neck and had tried to hang himself. The deputy found two belts lying in the passenger seat of Mathis's truck and a rope with a noose hanging from a tree outside of the truck.
Prior to his trial, Mathis moved to exclude testimony about his suicide attempt. He argued that it didn't demonstrate his consciousness of guilt or his wish to evade prosecution because he hadn't been arrested or threatened with prosecution yet when the attempt occurred. The State countered that the suicide attempt evidence demonstrated Mathis's consciousness of guilt because it occurred right after he was confronted by the victim about his sexual crimes. A day or two earlier, Mathis had received an e-message from the victim accusing him of molesting her and asking him for answers about why he would do that. The trial court denied Mathis's motion concluding that under the circumstances his suicide attempt showed a consciousness of guilt.
At trial, both the victim and her mother testified regarding Mathis's illegal conduct. The victim testified that she remembered Mathis coming into her room multiple nights a week when she was young, taking her clothes off, and touching and licking her in inappropriate places. She waited about six years to report his conduct to her family. Then, according to the victim's testimony, a day or two after revealing his crimes to her family, she messaged Mathis to tell him that she remembered what he had done. And she asked him why he had done it. Mathis didn't respond. According to the victim, her father notified law enforcement after he learned of her allegations against Mathis.
The victim's mother also testified at trial. Mathis was her ex-boyfriend with whom she and the victim had lived for about five years. The victim's mother recalled Mathis's practice of getting up and leaving the bedroom at night after they had gone to bed together. She wouldn't typically get up with him. But one night she remembered leaving the bedroom to find Mathis in the victim's room on his knees beside her bed with his hands and head under her covers. It was dark, and the victim's mother asked what was going on. She got no answers from Mathis or her daughter and his actions remained a secret. Not until 2016 did the victim's mother finally learn what Mathis had done to the victim.
The other witness at trial addressed Mathis's suicide attempt. On January 3, 2017, a day or two after he had received the message from the victim accusing him of sex crimes (and after the victim's father had notified law enforcement), a Bay County Sheriff's Deputy responded to a call about a possible attempted suicide. Upon arrival, the deputy encountered Mathis sitting in the driver's seat of a pick-up truck. He was having difficulty breathing and had ligature marks around his neck. There were two belts lying in the passenger seat of the truck and a rope with a noose hanging from a nearby tree.
A jury ultimately found Mathis guilty as charged and sentenced him to life in prison.
II.
Mathis's appeal raises three issues. First, Mathis challenges the jury instruction given on sexual battery, to which he didn't object. Mathis asserts that it was fundamental error to include both of the terms "union" and "penetration" in the sexual-battery jury instruction, when the charges and evidence against him were entirely "union"-oriented acts. See § 794.011(1)(h), Fla. Stat. (defining sexual battery to include "penetration by, or union with, the sexual organ of another ... by any other object"). But we see no fundamental error with this instruction. Because the State's case focused on the "union"-related evidence, there is no reason to think that the jury convicted Mathis based on an uncharged penetration-based offense. See Olivera v. State , 58 So. 3d 352, 353-54 (Fla. 1st DCA 2011) ("Only when there is reason to believe the conviction is for an offense not charged, as when the jury's verdict specifically convicts the defendant of the uncharged form of the offense, will the fundamental error exception be justified due to a violation of the defendant's due process rights.").
Mathis's second appellate argument involves the trial court's decision to allow a sheriff deputy's testimony about his suicide attempt as evidence of consciousness of guilt. Trial courts have discretion to determine the admissibility of evidence. See Penalver v. State , 926 So. 2d 1118, 1132 (Fla. 2006). And their rulings won't be disturbed absent abuse of that discretion. Id. After a crime is committed, evidence that a suspect seeks to evade a threatened prosecution "in any manner" is admissible where the evidence is relevant based on "consciousness of guilt inferred from such actions." Sireci v. State , 399 So. 2d 964, 968 (Fla. 1981), cert. den., 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982), overruled on other grounds, Pope v. State , 441 So. 2d 1073 (Fla. 1983). Courts have recognized suicide attempts to be "indicative of a desire to avoid prosecution and [a] circumstance from which guilt may be inferred." Geissler v. State , 90 So. 3d 941, 946 (Fla. 2d DCA 2012) (citing Penalver , 926 So. 2d at 1133-34 and Walker v. State, 483 So. 2d 791, 796 (Fla. 1st DCA 1986) ).
Mathis cites Penalver and argues that the trial court abused its discretion by admitting evidence of his suicide attempt because it occurred before he had been arrested or there was any threat of prosecution. It is true that this factor was mentioned in the Penalver opinion's discussion of why the defendant's suicide-related statements weren't admissible. But two other factors controlled the court's holding in Penalver : (1) the defendant had not clearly threatened to commit suicide, and (2) he had turned himself in, which "tends to negate the argument that his threat was probative of a desire to avoid prosecution." Penalver , 926 So. 2d at 1134. Neither of these factors apply here.
Moreover, the evidence at the motion hearing in this case showed a close nexus between Mathis's suicide attempt and his being confronted by the victim about his crimes. He attempted suicide within a couple days of the victim demanding answers to the following questions:
Why did you do it? Why did you have to go and do all those things to me? How do you act like everything is okay like you did nothing? I was five, clueless, innocent. You permanently destroyed me. Are you happy with the decision you made? What about an innocent five year old girl attracts you? You know what, you are sick.
Mathis did not respond to the victim's confrontation like the defendant in Penalver —with vague murmurs about death or by turning himself in to law enforcement. Rather, Mathis really tried to kill himself. He hung a noose from a tree and was found by law enforcement with two other belts, ligature marks around his neck, and having difficulty breathing. Once discovered, Mathis made statements acknowledging that he had been accused of something he did not do and that no one would believe him. His statements linking his suicide attempt to the victim accusations confirmed the trial court's view that this was admissible consciousness of guilt evidence. This result finds support in the Geissler case. 90 So. 3d 941. In Geissler , the Second District held that it wasn't an abuse of discretion for the trial court to have admitted evidence of the defendant's attempted suicide when he shot himself in the face after being confronted by his wife about a child-related sexual abuse claim. Id. at 943, 946. As in Geissler , we find no error in the trial court's decision to allow the jury to consider the attempted suicide evidence as an indication of Mathis's desire to evade prosecution.
Finally, we see no reason to reverse on account of the third issue raised by Mathis's appeal. This issue involves the trial court's refusal to strike a statement made by the victim's mother in response to a question by defense counsel. When answering a question by defense counsel on cross-examination, the victim's mother referred at one point to Mathis watching porn at night. Defense counsel immediately moved to strike, but without stating a basis for the motion or asking for a curative instruction. The trial court denied the motion. In the absence of providing a reason to the trial court for striking what the victim's mother said, we find no reversible error in the trial court's decision to deny the motion. See, e.g. , State v. Murray , 161 So. 3d 1287, 1289 (Fla. 4th DCA 2015) (noting that objections must be sufficiently precise to apprise the trial court of the grounds for the objection in order to be preserved for appeal). Furthermore, any error was harmless. The statement by the victim's mother was isolated, void of details, and the prosecutor made no mention of it during closing argument.
III.
The judgment and sentence are AFFIRMED .
B.L. Thomas and Makar, JJ., concur.