Florida Criminal Law Opinions

FRANCISCO JAVIER MENDEZ, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-2972

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

July 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Jeffery M. Fleming, Judge.

DISPOSITION:  

AFFIRMED in part; REMANDED with instructions.

COUNSEL:   Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Carlos A. Ivanor, Jr., and Kellie A. Nielan, Assistants Attorney General, Daytona Beach, for Appellee.

JUDGES:   TORPY, J. GRIFFIN, J., and GRAHAM, R., Associate Judge, concur.

OPINION BY:   TORPY

OPINION  

TORPY, J.

Appellant challenges his convictions for sexual battery on a victim less than twelve years of age and lewd and lascivious molestation of that same victim. Appellant’s principal point on appeal relates to the admission of collateral crime evidence of a prior molestation concerning a different victim. We conclude that no abuse of discretion has been shown on this point and affirm the conviction. n1

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Appellant also challenges his conviction based on double jeopardy grounds, which we determine to be without merit.
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Appellant met the victim, M.T., and his family, while Appellant was employed as a counselor at M.T.’s aftercare program. At that time M.T. was six years old. Appellant gave M.T. his phone number because Appellant wanted to babysit for M.T. After some time, M.T.’s  [*2]  parents hired Appellant to babysit for M.T. and his younger sister on a regular basis. The acts giving rise to the charges occurred during these engagements.

M.T., who was ten years old at the time of trial, testified that, during games of tag, Appellant “would hold me, stick his hands in my pants and grab my weiner,” which M.T. described as the part of his body used for “peeing.” M.T. also testified that Appellant “would sometimes suck on it with his mouth and wouldn’t let go of [him].” After this occurred on numerous occasions, M.T. reported this activity to his father, who notified authorities.

The collateral crime evidence related to an incident involving a different victim, R.C., who was twenty years old at the time of trial. R.C. testified that, when he was thirteen or fourteen years old, he encountered Appellant at a camp for dependent children. Appellant worked as a counselor at the camp. On the night in question, R.C. awakened during the night to discover someone “playing with” his genitals. The perpetrator returned one or two more times that night and repeated the act. Although he could not see the perpetrator’s face, he stated that he was “100 percent sure” it was Appellant  [*3]  because of the distinctive hat worn by the perpetrator, a cone shaped ski hat. According to R.C., Appellant was the only person at this remote camp who wore this distinctive type of hat and he was “always seen with it.” R.C. reported the incident the next morning.

R.C.’s identification testimony was corroborated by another witness, Leonard Coller, one of Appellant’s co-workers at the camp. Coller testified that, on the night R.C. was molested, three counselors were on duty — Coller, Appellant and a woman. The counselors bunked in the same quarters. The children bunked in separate buildings. After the woman counselor fell asleep, when Coller was “half asleep” watching a movie, he recalled that Appellant left the room and was gone for an unusually long time. Eventually, Coller became concerned and went to look for Appellant. When he located him, Appellant told Coller that he had been “making sure the boys were asleep.” At the time, Appellant was wearing the “Robin Hood” type hat. In retrospect, Coller thought Appellant’s explanation was strange because Appellant was not carrying a flashlight, which the counselors typically carried in the remote location when checking on the children  [*4]  at night.

The trial judge conducted a pretrial hearing to determine whether to exclude the collateral crime evidence. He concluded that the evidence was “relevant as similar fact evidence and that the probative value [was] not outweighed by the prejudicial effects [sic].” The parties agree that we are obligated to affirm unless we conclude that this ruling constituted an abuse of discretion.

Our disposition of this case is governed by section 90.404(2)(b), Florida Statutes (2006), and our supreme court’s interpretation of that statute in McLean v. State, 934 So. 2d 1248 (Fla. 2006). Section 90.404(2)(b) authorizes the admission of collateral crime evidence in child molestation prosecutions for any relevant purpose, including to corroborate the victim’s testimony by showing that the accused had a propensity for such criminal conduct. In McLean, our high court confronted a challenge to this statute on due process grounds. In upholding the constitutionality of the statute, the court adopted several standards to ensure that the use of this type of evidence does not infringe upon the due process rights of an accused. First, the court required that the evidence of the collateral crime be proven  [*5]  by clear and convincing evidence. Second, the court required that the trial court balance the probative value of the evidence against the danger of unfair prejudice, pursuant to section 90.403, Florida Statutes. Third, the court cautioned that the collateral crime evidence must not become a “feature” of the trial. Finally, the court required that, upon request, the jury be instructed as to the limited purpose for which the evidence may be considered.

Here, Appellant contends that the admission of the collateral crime evidence violated the McLean standards. As to the quantum of proof adduced, citing the “weakness” in the evidence, Appellant contends that the clear and convincing standard of proof was not met. We disagree. The State offered direct proof that the crime had occurred and circumstantial proof that Appellant had committed the crime. Although R.C. could not identify Appellant, he was able to identify a unique hat that Appellant wore during the crime. R.C. confirmed that Appellant “was always seen with [the hat]” and was the only person in this remote location that had such a hat. This evidence was buttressed by the testimony of Mr. Coller, who observed Appellant leave the bunkhouse  [*6]  on the night in question, remain gone for an unusually long period of time and, when confronted about his absence, offer an explanation that was not credible. Coller also confirmed that Appellant wore the distinctive hat on the night of the crime. We conclude that this evidence amply satisfied the clear and convincing proof threshold.

Likewise, we disagree with Appellant’s contention that the trial court should have excluded the evidence pursuant to section 90.403. In reaching this conclusion, we are guided by a comparison of the facts at bar with those presented in McLean. There, McLean, while spending the night at his brother’s house, sexually battered his brother’s eight-year-old grandson by rubbing and inserting his finger into the victim’s “bottom.” During the trial, the court admitted collateral crime evidence of incidents involving a different victim that had occurred fourteen years earlier. That victim, Chambers, testified that, on two occasions while McLean was an overnight guest at Chambers’ home, McLean battered him by attempting to penetrate, or actually penetrating, Chambers’ anus with McLean’s penis. At the time of these assaults, Chambers was twelve years old.

Under a section 90.403  [*7]  analysis, we think the case at bar presents a more compelling case for admission of the collateral evidence than in McLean. In McLean, the charged and uncharged crimes were committed fourteen years apart. The charged offense involved a relative; the uncharged offenses did not. The manner of abuse was less similar than in this case. Here, by contrast, Appellant had a similar relationship with both victims. He gained employment that would give him access to his young victims. He was a counselor to each and had custodial authority over them at the time of the offenses. The incidents of abuse were only two or three years apart and both occurred in the victims’ abodes. Finally, both incidents included the touching of the penis with the hand. Although the charged crimes and the uncharged crimes were not exactly the same, precise similarity is clearly not required when the collateral crime evidence is offered on an issue other than identity. n2 In the final analysis, the question is whether the incidents are sufficiently similar that the probative value of the proffered evidence is not substantially outweighed by the danger of unfair prejudice, a conclusion that is entrusted to the sound discretion  [*8]  of the trial judge.

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The supreme court expressly left unresolved the issue of whether greater similarity is required when identity is the issue for which the collateral crime evidence is offered. McLean, 934 So. 2d at 1261 n.10.
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We have not overlooked Appellant’s contentions that the collateral crime evidence became a feature in the trial and that the cautionary instruction given by the court was not adequate. After carefully reviewing both arguments, we have determined that they lack merit and do not warrant further discussion.

As a final point, Appellant contends that the sentencing order conflicts with the trial court’s oral pronouncement related to certain costs that were stricken. The State concedes this point. Therefore, we affirm the conviction and sentence in all respects except that the “Notice of Fine and Costs” order shall be amended to conform to the oral ruling of the trial court.

AFFIRMED in part; REMANDED with instructions.

GRIFFIN, J., and GRAHAM, R., Associate Judge, concur.

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DOUGLAS M. WILLIAMS, JR., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1471

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

July 27, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Sumter County, William H. Hallman, III, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PLEUS, ORFINGER and EVANDER, JJ., concur.

OPINION  

PER CURIAM.

AFFIRMED. See Mayes v. State, 718 So. 2d 852 (Fla. 4th DCA 1998), which holds that the trial court erred in admitting the police officer’s testimony that he recognized the defendant on a tape from prior encounters with the defendant, but the error was harmless under the circumstances since there was no impermissible cumulative effect from the improperly admitted evidence.

PLEUS, ORFINGER and EVANDER, JJ., concur.

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GLENN E. CHAPMAN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D04-5540

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

July 27, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.

DISPOSITION:  

Affirmed.

COUNSEL:   James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SALCINES, Judge. ALTENBERND and CANADY, JJ., Concur.

OPINION BY:   SALCINES

OPINION  

SALCINES, Judge.

Glenn E. Chapman appeals his convictions and sentences for grand theft of a motor vehicle, aggravated fleeing to elude, and battery on a law enforcement officer. Chapman first argues that the trial court erred by failing to conduct an inquiry concerning the reasons he sought to discharge his attorney. Finding no reversible error on this point, we affirm without discussion. Chapman next argues that his sentences were illegal. Chapman asserts that his offenses arose from the same transaction and thus he could not be sentenced as a Prison Releasee Reoffender on one offense followed by consecutive Criminal Punishment Code sentences on the remaining offenses. Because the sentencing structure challenged by Chapman did not result in an illegal sentence, we affirm Chapman’s sentences. See Reeves v. State, 957 So. 2d 625, 32 Fla. L. Weekly S239 (Fla. May 17, 2007).

Affirmed.

ALTENBERND  [*2]  and CANADY, JJ., Concur.

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THOMAS L. CARMICHAEL, Petitioner, v. STATE OF FLORIDA, Respondent.

CASE NO. 1D07-1421

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

July 26, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

DISPOSITION:    [*1]

PETITION GRANTED.

COUNSEL:   Thomas L. Carmichael, Pro se, Petitioner.

Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.

JUDGES:   BROWNING, C.J., BENTON, and VAN NORTWICK, JJ., CONCUR.

OPINION  

Petition Seeking Belated Appeal — Original Jurisdiction.

PER CURIAM.

The petition is granted and Thomas L. Carmichael is hereby afforded belated appeal from judgment and sentence in Bay County case number 2004-0127. The outstanding show cause order regarding jurisdiction in case number 1D07-0753 is hereby discharged and that appeal shall proceed for a disposition on the merits. Petitioner may move the trial court for appointment of counsel at public expense if he qualifies for such an appointment.

PETITION GRANTED.

BROWNING, C.J., BENTON, and VAN NORTWICK, JJ., CONCUR.

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ANDREA JEAN ANDREWS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-3794

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

July 26, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Okaloosa County. G. Robert Barron, Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   BROWNING, C.J. BARFIELD and ROBERTS, JJ., CONCUR.

OPINION BY:   BROWNING

OPINION  

BROWNING, C.J.

Andrea Jean Andrews (Appellant) appeals the trial court’s denial of her dispositive motion to suppress evidence. Because the police performed a lawful traffic stop and properly ordered the occupants of the vehicle, including Appellant, to get out, whereupon the contraband evidence was observed in plain view on Appellant’s person, we determine that the trial court correctly denied the motion to suppress. Accordingly, we affirm Appellant’s conviction and sentence.

The State’s information charged Appellant with one count of possession of cocaine and one count of possession of drug paraphernalia, a smoking device. At the suppression hearing, the trial court heard testimony that on January 27, 2006, Richard Riley, who is a special agent with the Air Force Office of Special Investigations and a sworn federal law enforcement officer,  [*2]  was investigating the desertion of Cody Wynkoop, who was suspected of involvement with cocaine at a local military base and resided off-base. A DD Form 553, which is an armed-forces warrant for deserters or absentees, was issued for Mr. Wynkoop. That investigation led Special Agent Riley and the Fort Walton Beach police to Mr. Wynkoop’s residence. Surveillance at that residence had disclosed at least two vehicles parked on the premises, one of which was a red Hyundai. When the special agent and the police arrived at Mr. Wynkoop’s residence on the date of the incident, no vehicles were present. The authorities knocked on the door and announced themselves as law enforcement, but no one opened the door. As the officers (who were dressed in clearly identifiable law-enforcement attire) stood in the yard and contemplated what to do next, the previously identified red Hyundai approached the residence but, 50-60 yards away, turned abruptly in a different direction. The authorities had observed this vehicle at Mr. Wynkoop’s residence a short time earlier. Believing that the residence was unoccupied and that Mr. Wynkoop, a federal fugitive, was inside the red Hyundai, the officers pursued the  [*3]  vehicle and stopped it after a high-speed chase.

After effecting the traffic stop, Detective Spinella approached the four-door Hyundai and immediately observed Mr. Wynkoop hiding on the back seat beneath some clothes and under the front passenger’s seat, which was fully reclined. After announcing that “our guy” was found, an officer drew his gun, pointed it at Mr. Wynkoop, and asked him to exit the vehicle. Special Agent Riley arrested Mr. Wynkoop and took him to the police car. Appellant was the driver of the Hyundai.

As Mr. Wynkoop was taken away, Detective Spinella ordered Appellant and the occupant of the front passenger’s seat to exit the vehicle for safety reasons. Appellant was directed to the front end of the vehicle, and her hands were placed on the hood as a female agent watched her. After all the occupants of the vehicle were secured, the female agent indicated to Detective Spinella that a “crack” cocaine pipe was protruding and plainly visible from Appellant’s rear pocket. The detective retrieved the pipe and observed obvious residue on it. Appellant was arrested.

In her motion to suppress, Appellant asserted that the officers lacked any lawful basis to stop the Hyundai. On  [*4]  appeal, Appellant appears to have abandoned that position. Instead, she contends that once the officers removed Mr. Wynkoop from the vehicle, the purpose of the stop was met; and that any further detaining of Appellant and ordering her to exit the driver’s seat was illegal, so that the officers’ observation and retrieval of the pipe constitutes the “fruit” of an illegal detention. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The record disclosed that the agent did not observe the contraband pipe until Appellant got out of the car. The trial court concluded that the officers had a lawful basis to stop the Hyundai because of their reasonable suspicion that a military deserter was hiding inside the vehicle; that the officers were reasonably concerned about the safety of everyone involved, given the presence of a hidden fugitive; and that it was reasonable under the circumstances to order the occupants of the car to get out.

Although the trial court’s determination of historical facts is presumed correct, we, the reviewing court, have an “obligation to independently review mixed questions of fact and law of constitutional magnitude”; no presumption arises as to the ultimate  [*5]  denial of the motion to suppress, over which we have de novo review. See Connor v. State, 803 So. 2d 598, 607-08 (Fla. 2001); Butler v. State, 706 So. 2d 100, 101 (Fla. 1st DCA 1998). That is, we must “independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendments and, by extension, article I, section 9 of the Florida Constitution.” Connor, 803 So. 2d at 608. It is the trial court’s decision, not its particular reasoning, that is presumed correct, and that ruling will be affirmed if any basis in the record exists for doing so. See Caso v. State, 524 So. 2d 422, 424 (Fla. 1988).

Appellant does not challenge the legality of the traffic stop itself. The officers had a reasonable suspicion that criminal activity was afoot; therefore, they were authorized to perform an investigatory stop. See § 901.151(2), Fla. Stat. (2005); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “During the course of an investigatory stop, the police are entitled to take such action as is reasonable under the circumstances.” Carroll v. State, 636 So. 2d 1316, 1318 (Fla. 1994). In carrying out their investigation after the Hyundai  [*6]  was lawfully stopped, the officers were authorized to order all the occupants of the vehicle to exit, pending the completion of the investigatory stop. See Maryland v. Wilson, 519 U.S. 408, 415, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Bernard, 650 So. 2d 100 (Fla. 2d DCA 1995). The trial court accepted the State’s testimony that the officers were reasonably concerned about the personal safety of everyone involved, given their observation of a suspected federal fugitive hiding in the back of the car. It was appropriate under the circumstances for the authorities to order the occupants to stand outside the vehicle and to keep their hands observable and out of their pockets until the scene was secured. See D.N. v. State, 805 So. 2d 63, 66 (Fla. 3d DCA 2002) (on mot. for reh’g); Powell v. State, 682 So. 2d 1244 (Fla. 5th DCA 1996). Given the evidence that the officers believed they had apprehended a military deserter in the vehicle, it mattered not whether they had a reasonable suspicion or probable cause to believe that Appellant had committed a crime. See Wilson, 519 U.S. at 414-15; Billips v. State, 777 So. 2d 1094 (Fla. 3d DCA 2001). Appellant did not contest the  [*7]  fact that a drug pipe was observed protruding from her pants pocket after she was ordered out of the vehicle. The officers’ presence at the location where the observation was made was justified; therefore, retrieval of the contraband pipe provided probable cause to arrest Appellant. See Reid v. State, 898 So. 2d 248 (Fla. 4th DCA 2005); Derrickson v. State, 399 So. 2d 100, 101 (Fla. 1st DCA 1981).

When the trial court denied the dispositive motion to suppress, Appellant reserved her right to appeal the denial of the motion. She then entered a no-contest plea and was sentenced to concurrent terms of two years of probation and one year of probation. The conviction and sentence are AFFIRMED.

BARFIELD and ROBERTS, JJ., CONCUR.

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