Florida Criminal Law Opinions

James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

Appeal from the Circuit Court for Pinellas County; Pamela A.M. Campbell, Judge.

ALTENBERND, Judge.

Michael T. Dery, Jr., appeals his conviction for first-degree murder and the resulting sentence of life imprisonment. The evidence against him was primarily, if not exclusively, circumstantial. The forensic science skills of the lead detective, a medical examiner, and a DNA expert were a major feature of the State’s case. A juror, who did not reveal that she had any background in forensic sciences during voir dire, and who

Page 2

appeared simply to be a bus driver in her mid-fifties, admitted during the second day of trial that she had taken a seventeen-week course in forensic science over the internet and that her instructor had been the detective who was the lead detective in this case. The trial court refused Mr. Dery’s request that one of two alternate jurors replace this juror and denied a motion for new trial on this same basis after the jury returned a verdict of guilty as charged. We conclude that the trial court was required to exercise its discretion in a manner that would have prevented this juror from participating in the deliberations and conclude that Mr. Dery is entitled to a new trial in light of these circumstances. Accordingly, we reverse the judgment and sentence and remand for a new trial.

At approximately 6 a.m. on October 4, 2002, someone strangled Tamara Lank with an automobile radio installation cord and dumped her naked body in a field at the end of a dead-end street in Pinellas County, Florida. Ms. Lank was a prostitute who was addicted to crack cocaine and lived in a hotel with another prostitute and two men. At 2 a.m. that morning, she had earned enough money to buy crack cocaine and had returned to the hotel. By 5 a.m., she apparently needed more and returned to the street.¹ Thereafter, she was never seen alive by any witness. A jogger found her body at approximately 7 a.m.

The Pinellas County Sheriff’s Office thoroughly investigated the crime scene, and a medical examiner performed an autopsy on Ms. Lank’s body. DNA samples were obtained from scrapings under her fingernails, as well as from her private

Page 3

areas. The samples revealed unknown male DNA. No suspect was identified at the time of this investigation.

In 2005, the Sheriff’s Office obtained information that Mr. Dery’s DNA was a high probability match for the DNA obtained from the samples.² A detective interviewed him, claiming to be investigating a “murder theft ring.” Mr. Dery denied knowing Ms. Lank, could not identify her photograph, and denied having sex with her. Further investigation indicated that he had access to a roommate’s tool box near the time of the murder and that the box contained an automobile radio installation cord. He also lived in the general vicinity of the crime. Mr. Dery was indicted by a grand jury and charged with the first-degree murder of Ms. Lank.

At trial, the State maintained that Mr. Dery had had sexual intercourse with Ms. Lank at an unknown location and then had immediately strangled her and dumped her body, where it was found by the jogger. Mr. Dery did not testify, but his counsel’s theory was that Mr. Dery was merely Ms. Lank’s last customer and that she must have been killed by someone else after Mr. Dery left. The State’s evidence that Mr. Dery was the person who had murdered Ms. Lank was obviously very circumstantial. It depended extensively on the investigation of the lead detective and on other forensic evidence provided by the medical examiner, a DNA expert, and other witnesses. On appeal, Mr. Dery has argued that he was entitled to a judgment of acquittal. We reject that argument, but the circumstantial nature of the evidence in this case creates a context in

Page 4

which the error on which we reverse is much more likely to constitute an abuse of discretion.

During voir dire, the State questioned the prospective jurors about their knowledge of DNA, engaging in a discussion with the panel about their knowledge of the various uses of DNA. The State asked, “I guess the question is this: Anybody feel or anybody have specific knowledge about DNA? Because you’re interested, you read an article about it, or you have a particular interest in it.” One prospective juror responded that he knew about DNA “just through education.” Juror #8 said nothing. As far as the parties knew, this juror was a female bus driver in her mid-fifties. Both sides left her on the jury.

After the lead detective testified, juror #8 indicated that she recognized the witness. The court interviewed the juror. In the process of determining her connection to the detective, the court established that she had taken a seventeen-week course in forensic science several years earlier. It was an internet course provided by a community college. Juror #8 emphasized that she had had no direct contact with the detective and had not appreciated that the detective was her former instructor until he took the stand.

Mr. Dery did not move for a mistrial. He merely moved to have juror #8 removed from the jury with either of the two available alternate jurors substituted in her place. The trial court denied this motion, focusing primarily on the limited personal contact between the juror and the detective. For purposes of this opinion, we assume that the juror had no reason to disclose that she knew the detective during voir dire and

Page 5

that her limited connection to this witness would not be a basis that required the trial court to remove her from the panel prior to deliberations.

The primary concern in this case is that juror #8 did not disclose that she had taken a course in forensic science, including the subject of DNA, when the State’s questions during voir dire clearly required her to disclose this training. A juror, who appeared from voir dire to have no training or interests that would affect her service, suddenly revealed mid-trial that she had a sufficiently serious interest in forensic science to take a course on the subject when she was approximately fifty years old. Given that most of the State’s evidence was based on forensic sciences, Mr. Dery’s attorney was entirely credible when he represented that he would, if necessary, have used a peremptory challenge to remove this juror if she had properly revealed this training during voir dire.

It is well established that a trial court has the discretion to remove a juror and use an acceptable alternate juror when the court determines mid-trial that the juror was not candid during voir dire. See, e.g., Wilson v. State, 608 So. 2d 842, 843 (Fla. 3d DCA 1992) (removing juror who failed to disclose her ill feelings toward the state attorney’s office during voir dire); State v. Tresvant, 359 So. 2d 524, 526 (Fla. 3d DCA 1978) (removing juror who was not candid about the number of times she had been arrested). The closer question is identifying the circumstances under which a trial court abuses its discretion by refusing to remove a juror. We can look to De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995), for guidance in answering this question. In De La Rosa, the Florida Supreme Court outlined a three-part test to use in determining when a juror’s failure to disclose information during voir dire warrants a new trial. Id. at 241.

Page 6

“First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Id

Relying on De La Rosa, the Fifth District in Lebron v. State held that the defendant was entitled to a new trial when a juror failed to disclose that the victim of the crime was his friend. 724 So. 2d 1208 (Fla. 5th DCA 1998). During voir dire the trial court had asked the potential jurors if they knew anything about the case and if they knew the defendant. ki at 1209. None of the jurors indicated they knew the defendant, although some had indicated they knew about the case. The juror at issue, however, did not admit knowing anything about the case. ki The Fifth District concluded that his failure to disclose his knowledge “constituted prejudicial juror misconduct requiring reversal.” Id at 1210.

This case is in line with De La Rosa and Lebron. Because the State’s case heavily relied on forensic science, a juror’s education and knowledge about it was relevant and material to his or her service on the jury. Here, juror #8 had specialized knowledge about DNA stemming from the course she took in forensic science. Instead of admitting that she had taken a course on the subject, the juror concealed her knowledge. Her failure to disclose this knowledge cannot be attributed to a lack of diligence on Mr. Dery’s part because the State expressly asked the jury panel whether any of them had any specific knowledge about DNA and Mr. Dery had no reason to inquire further after the juror failed to indicate her training in the subject. As a result, Mr.

Page 7

Dery was prevented from exercising a peremptory or for-cause challenge to strike her from the jury during voir dire and, thus, was prejudiced by her nondisclosure.

When Mr. Dery did discover the juror’s specialized knowledge about DNA, he promptly sought to replace her with an alternate juror. There were two alternate jurors on the panel. These alternate jurors were still available when the jury was sent to deliberate. The trial court released these alternate jurors when there was little or no reason why either one of them could not have deliberated in the place of juror #8. Therefore, we conclude that the trial court abused its discretion when it refused to replace the juror with an alternate. As such, we reverse Mr. Dery’s conviction and sentence and remand for a new trial.

Reversed and remanded.

DAVIS and CRENSHAW, JJ., Concur.

——–

^1. Time estimates at trial varied considerably, but these discrepancies are not important for our opinion.

^2.Mr. Dery had several prior convictions for the sale and possession of cocaine in Pinellas County. Shortly before this murder, he had been incarcerated. Presumably his DNA was available due to his criminal record.
——–

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

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

Appeal from the Circuit Court for Sarasota County; Charles E. Roberts, Judge.

WHATLEY, Judge.

Jovan Cummings appeals his judgments and sentences for two counts of trespass in an occupied structure or conveyance, arguing that the trial court erred in imposing restitution. We reverse that part of the restitution order requiring Mr. Cummings to pay for the loss of a victim’s vehicle, because the State failed to establish

Page 2

a nexus between Mr. Cummings’ offense and the loss of the vehicle. The remaining portion of the restitution order is affirmed.

Mr. Cummings was originally charged with burglary of an unoccupied dwelling and two counts of grand theft. The charges were reduced pursuant to a plea agreement, and a restitution hearing was held after Mr. Cummings had entered the plea. At the hearing, the owner of the vehicle at issue, Mack Cass, testified regarding how much the vehicle was worth and his other expenses related to the theft of the vehicle. However, there was no testimony or evidence indicating that the loss of the vehicle was caused directly or indirectly by Mr. Cummings’ offense of trespass or that such loss was related to his criminal episode.

Section 775.089, Florida Statutes (2008), provides as follows:

(1)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:

1. Damage or loss caused directly or indirectly by the defendant’s offense; and

2. Damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution….

(b)1. If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in this section, it shall state on the record in detail the reasons therefor.

2. An order of restitution entered as part of a plea agreement is as definitive and binding as any other order of restitution, and a statement to such effect must be made part of the plea agreement. A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea.

Page 3

Here, there was no language in the plea agreement indicating that Mr. Cummings agreed to pay restitution. Further, although the State asked the trial court at the plea hearing to “order and reserve on restitution,” Mr. Cummings did not orally agree to pay restitution. See R.A.B. v. State, 932 So. 2d 1227, 1229 (Fla. 2d DCA 2006) (holding that record did not establish that restitution was a condition of appellant’s plea agreement where State noted it was seeking restitution at plea hearing, appellant merely agreed to set a restitution hearing date, and trial court failed to inform appellant that he was waiving his right to contest restitution). Consequently, the State was required to show that the loss of the vehicle was caused directly or indirectly by Mr. Cummings’ offense and that such loss was related to his criminal episode.

This case is on point with G.C. v. State, 944 So. 2d 1099, 1099 (Fla. 2d DCA 2006), where G.C. was charged with grand theft of a motor vehicle, burglary of a conveyance, and trespass on property other than a structure or conveyance. It was alleged that he trespassed onto a business’s property and took an all-terrain vehicle, which was never recovered. ld. Pursuant to a plea agreement, G.C. pleaded no contest to trespass in a conveyance and trespass on property and the State dropped the grand theft charge. ld.

In GXL 944 So. 2d at 1100, this court held that the State failed to establish a nexus between G.C.’s trespass and the loss of the vehicle:

By pleading no contest to trespass, G.C. admitted only to entering or remaining in the vehicle without permission. See § 810.08(1). He did not admit to grand theft, and in the plea deal the State abandoned that charge without securing G.C.’s agreement to pay restitution for the victim’s loss occasioned by the theft of the [vehicle].

Page 4

Similarly, in Davis v. State, 741 So. 2d 1213, 1214 (Fla. 2d DCA 1999), the appellant was initially charged with burglary of a dwelling and he entered a plea to attempted burglary. This court held that by pleading to only attempted burglary, the appellant admitted to attempting to enter the residence with the intent to commit some offense, and therefore, there was not a significant relationship between the attempted burglary judgment and the victim’s loss of items taken from her home. ld. at 1214. In the present case, there was no testimony establishing a nexus between Mr. Cummings’ trespass in the vehicle and the loss of the vehicle. Therefore, the trial court erred in ordering him to pay restitution for the loss of Mr. Cass’s vehicle.

Accordingly, we reverse the portion of the restitution order as it relates to the loss of Mr. Cass’s car, but we affirm the restitution order in all other respects. The case is remanded for a new hearing concerning what restitution, if any, is owed for the loss of the vehicle.

Affirmed in part, reversed in part, and remanded.

DAVIS and MORRIS, JJ., Concur.

Mario De La Rosa, in proper person.

Bill McCollum, Attorney General, and Ansley P. Peacock, Assistant Attorney General, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.

Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.

CONFESSION OF ERRORLAGOA, J.

Mario De La Rosa appeals the sentence imposed following this Court’s decision in De La Rosa v. State, 979 So. 2d 1089 (Fla. 3d DCA 2008). Based on the State’s confession of error, we vacate the sentence and remand with directions.

Page 2

In De La Rosa, 979 So. 2d at 1089, this Court reversed an order denying De La Rosa’s motion for postconviction relief and remanded for a determination whether the trial court’s oral pronouncements at the sentencing hearing indicated that the court sentenced De La Rosa as a habitual violent felony offender. This Court further instructed the trial court that “if it is determined that the trial court’s oral pronouncement of sentence did not include a habitual violent felony offender designation, we remind the trial court that the defendant must be resentenced pursuant to the 1994, not the 1995, sentencing guidelines scoresheet.” Id. at 1090.

On remand, the trial court concluded that it did not orally pronounce a habitual violent felony offender sentence. The court struck the habitual violent felony offender designation and resentenced De La Rosa using a 1995 guidelines scoresheet. De La Rosa was not present or represented by counsel at the hearing.

De La Rosa appeals the sentence, contending that the trial court erred in resentencing him pursuant to the 1995 guidelines scoresheet and that he was entitled to be represented by counsel and to be present at the resentencing hearing. The State correctly concedes that the trial court failed to follow this Court’s mandate. In contravention of the express language of this Court’s decision, the trial court failed to recalculate De La Rosa’s sentence pursuant to the 1994 guidelines scoresheet when it struck the habitual violent felony offender designation.

Page 3

Accordingly, we vacate the sentence and remand for resentencing pursuant to the 1994 sentencing guidelines scoresheet. As also conceded by the State, De La Rosa has the right to be present and to be represented by counsel at the resentencing hearing. See Mullins v. State, 997 So. 2d 443 (Fla. 3d DCA 2008); Wilson v. State, 947 So. 2d 1225 (Fla. 1st DCA 2007); Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006).

Sentence vacated and cause remanded for resentencing.

Paul Morris of Law Offices of Paul Morris, P.A., Miami, Jonathan Kasen, P.A., Fort Lauderdale, and Stephen H. Rosen, P.A., Coral Gables, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

Polen, J.

Arthur Pulcini appeals his conviction and sentence for unlawful sexual activity with a minor, C.H. He contends that the trial court erred in (1) admitting the testimony of the Williams rule witness; (2) allowing the prosecution to treat witness Brandon Meloche as hostile; (3) refusing to admit appellant’s statement to police in its entirety; and (4) denying appellant’s motion for mistrial following the State’s suggestion during closing argument, in the absence of any evidence, that appellant had been arrested for the prior conduct introduced as Williams rule evidence. We reverse and remand for a new trial on the first issue, finding that the trial court allowed the presentation of improper Williams rule evidence. This moots the fourth issue, but we do comment briefly on the other two issues as they may arise again on retrial.

In September of 2005, C.H. was dating appellant’s nephew, Brandon Meloche. She was sixteen years old at the time. She visited appellant’s house often. Tommy and Tracy Burton lived on the property, and were always present when C.H. visited, including on the evening in question. The State’s case centered around the credibility of C.H.’s testimony. C.H. said she went to appellant’s house after work, around 7:00 p.m. The Burtons were there, and a man named Larry, ¹ who also lived on the property. When C.H. arrived, appellant told her to meet him in his office. They talked about Brandon. C.H. was upset because she could not reach him. Appellant gave C.H. two white, oblong pills, which he said were antidepressants. C.H. took the pills with a rum and coke. At this

Page 2

point, she and appellant were sitting at the cabana bar with the Burtons and Larry. Appellant asked C.H. if she wanted to go for a ride on his ATV around the property. C.H. felt tired and “woozy,” but agreed to go. Appellant stopped the ATV far away from the cabana, so he and C.H. could talk in private. As they were talking, appellant grabbed the back of C.H.’s head, unzipped his pants, pushed C.H.’s head forward, and forced her to perform oral sex on him. He kept one hand on her head and put the other under her shirt; he felt her breast, over her bra. He also unzipped her pants and felt her vagina underneath her underwear. Appellant then drove them back to the bar area, where they got off the ATV. He grabbed C.H.’s wrist, gave her $100 and said, “we’re going to have problems,” if she told anyone. When they got back to the bar, the Burtons were still there. C.H. did not say anything to them, but tried to “star[e] them down” to get their attention. At one point, C.H. kicked Tommy Burton’s chair. Appellant called C.H. over and reminded her that if she said anything they would have problems. C.H. drove herself home and went straight to bed. When she woke up the next day she had several new voice messages from Brandon. She called him and told him what had happened with appellant. The following day, C.H. went to the police department, where she gave a statement to Detective Chastain.

C.H. was examined at a sexual assault treatment center, two days after the incident. She provide several items of clothing, blood and urine samples for a toxicology screen, as well as vaginal, oral and breast swabs, and a hair sample, for DNA testing. C.H. told the examining nurse that appellant digitally penetrated her, forced her to perform oral sex on him, may have kissed her breast area, and that his semen may have gotten in her hair. C.H. said she had not bathed since the assault, but had brushed her teeth, eaten, ingested liquids, and had been vomiting since the incident. She had no physical injuries or trauma to her genital area. C.H. gave the nurse a $100 bill, which she said appellant had given her when he told her not to say anything. C.H. asked for the money back before she left.

No semen or foreign DNA was detected on any of the samples. Toxicology results revealed the presence of nicotine in C.H.’s urine, but no other drugs. C.H.’s blood sample revealed the presence of an anticonvulsant used to treat seizures and headaches. No alcohol was detected.

On cross-examination, C.H. acknowledged she had lied in her deposition when she said she did not leave the house for a year and a half after the incident because she was afraid of appellant. She then clarified that she left her house only to go to work. C.H. did not seek

Page 3

mental health treatment until a week before trial (two and a half years after the incident).

Appellant’s phone records reflected that C.H. called him multiple times in the weeks before the incident, though C.H. denied making all of the calls. She said Brandon often used her cell phone.

When Brandon was called as a witness, he said he did not want to be at the trial; he was there only because he was subpoenaed. After identifying appellant in the courtroom as his uncle, he requested a break. The court took a brief recess. Back on the record, Brandon testified that he had previously been intimate with C.H., who was a friend. He remembered giving a statement over the phone, to Detective Chastain, two days after the incident, but did not recall exactly what he said to the detective. Brandon also remembered going to his uncle’s home the day after the incident and having a verbal confrontation with him, but could not recall what his uncle had said to him that day to make him angry. When Brandon’s statement did not refresh his recollection, the State requested permission to treat the witness as hostile. The trial court granted the request, noting: “He already said he doesn’t want to be here, the first question. When he–within the first couple of questions he began to cry, and we had to take a break. So the State’s request is granted.” The court clarified that the prosecutor could not read the statement, but could ask leading questions. In the colloquy that followed, Brandon was confronted with statements he made to Detective Chastain such as, that his uncle had told him that C.H. “gave him oral.” However, Brandon did not remember making any of these statements.

On cross-examination, Brandon said the only way he knew about any pills was from C.H. His statement also reflected that appellant never mentioned pills to him. Brandon said he could not remember the details of the verbal confrontation with his uncle because he was high on marijuana, which he smoked daily at that time. He did not recall being high when he spoke to Detective Chastain.

Detective Chastain Mirandized appellant and took his statement. Appellant said C.H. was at his house on the day in question, and that they took a short ride on his ATV around the property. Afterwards, they went back to the bar and sat around for an hour. Appellant went swimming, and C.H. came over to say goodbye on her way out. Appellant denied giving C.H. any pills, but said he did give C.H. money that night. When asked whether or not he had touched the victim’s vagina, appellant said, “no, now you’re getting too crazy for me.”

Page 4

Williams rule witness, C.S., testified that she used to keep her horse on appellant’s property nineteen or twenty years ago. She took care of his horses and babysat his children, in exchange for board. C.S. was about twelve years old at the time. Two incidents with appellant at his home made her uncomfortable. The first occurred when C.S. and a girlfriend were in a bathroom getting ready. C.S. was showering. Appellant entered the bathroom, undressed, put C.S.’s friend in the shower with C.S. and then got in himself. He said he had to rinse off. Appellant did not touch C.S.

The second incident occurred in appellant’s office one afternoon. C.S. was there, along with two other kids. “[E]veryone was wrestling around,” when appellant got on top of C.S., straddled her, held her hands above her head, pulled her blouse over her face and put his mouth on her breast. The incident happened quickly. Appellant did not give C.S. any money or provide her with any alcohol or drugs. After these incidents, C.S. told her mother she did not want to go over to appellant’s house anymore because she “was uncomfortable with the situation that [she] was becoming a part of.”

Prior to C.S.’s testimony, the trial court gave a Williams rule instruction, advising the jury that the testimony should be considered only as it relates to proof of motive, intent, plan, the absence of mistake or accident on the part of the defendant or to corroborate the testimony of C.H.

The defense called the Burtons as witnesses. Tom Burton testified that he had lived on appellant’s property for three and a half years, with his wife and two children. C.H. visited the house often with appellant’s nephew, to hang out. On the night in question, they were all sitting around the tiki bar, listening to music and talking. No one, including C.H., drank alcohol that night. Appellant rode up on his ATV and wanted to know what was going on. For the next twenty minutes or so, they all sat there, talking and laughing. Then appellant said he had some things to do and went back over to his ATV. C.H. jumped up and asked to go for a ride. She hopped on the back of the vehicle and they drove off, returning less than five minutes later.

Mr. Burton lost sight of appellant and C.H. when they were gone, but could hear the engine of the ATV. When they returned, appellant went into the house and C.H. came back over to the tiki bar where the Burtons were sitting. A song came on that C.H. liked, and she started dancing by the bar, “like a stripper.” She was not stumbling or slurring her words. Appellant came back out later and got in the pool. Then C.H.

Page 5

got a call on her cell phone and said she had to go. She said she needed gas money. Appellant said his wallet was over by the dock. C.H. took some money out of the wallet and then left. Later, when appellant got back out of the pool, he said $100 was missing from his wallet.

Tracy Burton testified that C.H. did not appear to be intoxicated when she arrived at appellant’s house that evening. She sat around the tiki bar with the Burtons for fifteen minutes or so, when appellant rode up on his ATV. Appellant asked what they were up to, and said he had to take some garbage out. It was appellant’s nightly routine to empty his truck of palm fronds and garbage left over from landscaping, and take them to the dumpster. As he walked back to his ATV, C.H. said she wanted a ride and ran over to the vehicle. She sat on the back, and she and appellant rode off. They took the garbage to the dumpster, which was maybe a half an acre away from the tiki hut, and returned four or five minutes later. Like her husband, Mrs. Burton could hear the engine of the ATV running the whole time they were gone. When they returned, C.H. walked over to the tiki bar where the Burton’s were sitting. She looked the same as she did before she went on the ATV. She had no difficulty standing up and was not slurring her words. Appellant went inside the house for a half an hour or so. C.H. stayed outside with the Burtons, listening to music. She offered to teach Mrs. Burton how to dance. They talked about C.H.’s new job and how she was trying to get a hold of Brandon. Then C.H. got a phone call, and asked appellant for some gas money. Appellant was in the pool at this point. He told C.H. his money was over by the porch. C.H. walked around the pool, came back through the tiki hut to say goodbye, and then left.

Appellant argues that the trial court erred in admitting the Williams rule testimony of C.S., as it was dissimilar to the crime charged and too remote in time. The State responds that the trial court correctly admitted the evidence because it was relevant to corroborate the victim’s testimony, and it was not unfairly prejudicial. We agree with appellant and reverse for a new trial.

This court reviews the trial court’s admission of Williams rule evidence for abuse of discretion. Grier v. State, 27 So. 3d 97, 99 (Fla. 4th DCA 2009).

Evidence of bad acts not included in the charged offenses is generally referred to as “collateral crimes evidence.” Collateral crimes evidence includes similar fact evidence, which is governed by section 90.404, Florida Statutes, and is commonly referred to as “Williams rule evidence.”

Page 6

See Williams v. State, 110 So. 2d 654 (Fla. 1959). As defined by section 90.404(2), Florida Statutes (2005):

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

(b) 1. 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.²

In McLean v. State, 934 So. 2d 1248 (Fla. 2006), the Florida Supreme Court stated: “To guide the trial courts in deciding whether to admit evidence of prior acts of child molestation when it is offered to corroborate the victim’s testimony, we discuss the steps that the trial courts should take.” Id. at 1262. The court continued:

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (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. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Id.

Strohm v. State, 985 So. 2d 640 (Fla. 4th DCA 2008), is instructive. In Strohm, the defendant was tried and convicted on one count of capital sexual battery against his daughter. The offense allegedly occurred between 1990 and 1991. Id. at 641. The State sought to introduce a 2005 conviction for lewd or lascivious molestation and a 1974 rape

Page 7

conviction. Id. After the Williams rule hearing, the trial court decided to allow into evidence the testimony of the victim of the 1973 rape, but deny the testimony of the other Williams rule witness. Id. This court reversed on the basis that the 1973 rape was dissimilar and remote in time to the crime for which the defendant was currently on trial. Id. at 642. The court explained:

The 1973 rape for which appellant was convicted in 1974 was on a twelve-year-old who testified that she did not know appellant. The capital sexual battery in this case was on appellant’s daughter and occurred between August 1990 and May 1991 when the victim was eight years old.

In addition, there were substantial other dissimilarities in the crimes. In the 1973 rape the victim was vaginally penetrated while the crime in the instant case consisted of another form of sexual abuse.

The 1973 rape was remote in time to the capital sexual battery charge in this case, seventeen years prior. The 1973 rape was a one-time occurrence on a stranger to the appellant. In this case the sexual battery was on appellant’s daughter over a several month period. In this case there was no evidence of “the presence or lack of intervening circumstances.”

Strohm, 985 So. 2d at 641-42 (citing McLean, 934 So. 2d at 1262) (emphasis added).

In this case, the trial court found four similarities between the prior and charged conduct: (1) “both alleged victims were young girls”; (2) “Defendant allowed his property to be a place of recreation to the young girls, thereby setting up access to the victims”; (3) “Defendant kissed the breasts of the alleged victims”; and (4) “both incidents arose while the alleged victims were at the defendant’s home with other people at the residence.” The court further found that the probative value was not outweighed by the prejudicial effect. We disagree, finding these alleged similarities either weak or not supported by the record.

First, as noted by appellant, every prior incident of unlawful sexual activity with a minor involves a “young” alleged victim, and thus, will always be “similar” in that respect. Here, the Williams rule witness, C.S., was twelve years old at the time of the alleged conduct; the instant victim, C.H., was sixteen years old. See Strohm, 985 So. 2d at 641

Page 8

(indicating that the four-year difference between the victims, ages eight and twelve, was a dissimilarity).

The second alleged similarity, that appellant “allowed his property to be a place of recreation” so that he could “set up access” to victims, is weak. C.S. took care of horses on appellant’s property and babysat his children, while C.H. was a frequent guest at appellant’s home because she was dating appellant’s nephew.

The record belies the third alleged similarity, because there was no testimony that appellant kissed C.H.’s breast. Rather, C.H. testified that appellant put his hand under her shirt, and felt her breast, over her bra. Even so, the prosecution focused not on that act, but on the alleged forced oral sex, which differs entirely from the conduct alleged to have occurred with C.S. See Strohm, 985 So. 2d at 641-42 (noting the victim in the prior case was vaginally penetrated while the crime charged consisted of another form of sexual abuse).

The fourth alleged similarity that “both incidents arose while the alleged victims were at the defendant’s home with other people at the residence” is also weak. Though both incidents took place on appellant’s property, the incidents with C.S. occurred in the presence of others, while the incident with C.H. occurred in a secluded area.

Other dissimilarities in the crimes are: (1) the prior acts did not involve any drugs or alcohol, while in the instant case, C.H. testified that appellant gave her pills, which she took with a rum and coke; (2) the prior acts did not involve appellant giving the alleged victim money to keep quiet; and (3) perhaps most significantly, the incidents involving C.S. were extremely remote in time to the offenses charged in this case, occurring seventeen years prior.³

While “[a] collateral crime proven by similar evidence does not need to be absolutely identical to the crime charged in order to be admissible, ”

Page 9

see Triplett v. State, 947 So. 2d 702, 703 (Fla. 5th DCA 2007), the alleged crimes must be similar in at least some, if not many, respects. See id. at 704 (upholding trial court’s admission of Williams rule testimony where collateral act of molestation and the charged molestation shared “numerous similarities”); see also Grier, 27 So. 3d at 101 (upholding admissibility of collateral crime evidence where “many points of similarity between the charged act and collateral act exist”); Macias v. State, 959 So. 2d 782, 785 (Fla. 4th DCA 2007) (finding only one “fundamental difference” between the charged offense and collateral act). Here, the collateral acts do not share sufficient points of similarity with the charged crime to be admissible.

Based on the above, we find that the trial court abused its discretion in admitting the collateral crime evidence involving C.S.

Accordingly, we must consider whether the error was harmless. “The pertinent question in a harmless error analysis is not the sufficiency or quality of the remaining, properly admitted evidence; rather, it is ‘whether there is a reasonable possibility that the error affected the verdict.’” Chavez v. State, 25 So. 3d 49, 54 (Fla. 1st DCA 2009) (citing State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986)). Erroneous admission of collateral crimes evidence is presumptively harmful. Robertson v. State, 829 So. 2d 901, 913-14 (Fla. 2002); Pratt v. State, 1 So. 3d 1169, 1171 (Fla. 4th DCA 2009). This is particularly the case where, as here, the prior acts and charged offense are sexually based. See McLean, 934 So. 2d at 1256 (“Because of the commonly held belief that individuals who commit sexual assaults are more likely to recidivate as well as societal outrage directed at child molesters, the admission of prior acts of child molestation has an even greater potential for unfair prejudice than the admission of other collateral crimes.”).

Here, the State’s case boiled down to the credibility of the victim, whose testimony was contradicted by two defense witnesses, and uncorroborated by any physical evidence. This, coupled with the fact that the State highlighted the Williams rule evidence in closing argument, leads us to conclude that the error could not have been harmless. Consequently, we reverse and remand for a new trial. This moots appellant’s fourth argument that the trial court should have granted a mistrial following the prosecutor’s improper suggestion during closing that appellant had been arrested for the prior conduct introduced as Williams rule evidence. Because the remaining two issues may arise again on remand, we comment on them briefly.

Page 10

Appellant argues that the trial court erred in granting the State’s request to declare Brandon Meloche a hostile witness, where Brandon merely failed to recall events. Appellant contends that, as a result of the erroneous ruling, the jury heard portions of Brandon’s otherwise inadmissible prior statement through leading questions. We disagree.

The standard of review on the admission of evidence is abuse of discretion as limited by the rules of evidence. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008).

Section 90.612(1), Florida Statutes, provides that the judge shall exercise reasonable control over the mode of the interrogation of witnesses. Subsection (3) provides, in relevant part, that “[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony…. When a party calls a hostile witness,… interrogation may be by leading questions.”

In addition, section 90.608(1), Florida Statutes, states that “[a]ny party, including the party calling the witness, may attack the credibility of a witness by… [i]ntroducing statements of the witness which are inconsistent with the witness’s present testimony.” The statement, however, “should be truly inconsistent, and caution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating.” Morton v. State, 689 So. 2d 259, 264 (Fla. 1997), receded from on other grounds by Rodriguez v. State, 753 So. 2d 29 (Fla. 2000) (emphasis added). In addressing these issues, the trial court is afforded broad discretion in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion. Ocasio v. State, 994 So. 2d 1258, 1262 (Fla. 4th DCA 2008).

The trial court did not abuse its discretion in permitting the State to lead and impeach Brandon. As the trial court noted, once on the stand, Brandon admitted he did not want to be there, became upset upon identifying appellant as his uncle and began to cry. A recess was taken so he could speak to his mother, who is appellant’s sister. Brandon then testified that he did not remember many of the statements he made to Detective Chastain. Yet, Brandon remembered that appellant did not tell him that he gave C.H. drugs. He was also able to remember that he smoked marijuana daily at that time, but that he was not high the day he spoke to Detective Chastain. In addition, when asked whether he remembered appellant telling him that he and C.H. smoked, drank and

Page 11

went for a ride on the ATV on appellant’s property that day, Brandon responded: “[C.H.] told me that.” In his statement, however, he said that appellant had told him those things. These latter statements are truly inconsistent, and material to the case. Overall, Brandon’s testimony falls into the category of a witness who appears to be fabricating, rather than a witness who simply cannot remember every detail.

In light of the foregoing, the trial court did not abuse its discretion in allowing the State to lead and impeach the witness with prior inconsistent statements.

Finally, appellant argues that the trial court erred in refusing to admit appellant’s statement to Detective Chastain in its entirety, thereby violating the “rule of completeness.” The rule is codified in section 90.108(1), Florida Statutes, which provides in pertinent part:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.

The purpose of the rule of completeness is to avoid the potential for creating misleading impressions by taking statements out of context. Larzelere v. State, 676 So. 2d 394, 401 (Fla. 1996). Under this rule, once a party “opens the door” by introducing part of a statement, the opposing party is entitled to contemporaneously bring out the remainder of the statement in the interest of fairness. Id. at 401-02. The rule of completeness, however, is not absolute and a trial court may exercise its discretion to exclude irrelevant portions of a recorded statement. Layman v. State, 728 So. 2d 814, 816 (Fla. 5th DCA 1999).

“Self-serving statements are not admissible under section 90.803(18),” see Lott v. State, 695 So. 2d 1239, 1243 (Fla. 1997), and section 794.05(3) states that “[t]he victim’s prior sexual conduct is not a relevant issue in a prosecution under this section.”

In this case, there was no violation of the rule of completeness because the trial court merely excluded irrelevant portions of appellant’s statement, which contained self-serving, non-exculpatory hearsay and statements concerning the victim’s prior sexual conduct. Further, in its direct examination of Detective Chastain, the State did not create misleading impressions or take statements out of context. Finally, as the

Page 12

State argues, the admission of the entire statement would have likely been detrimental to the defense. Therein, appellant admitted to sitting at the bar with the victim and the Burtons on the night in question and to giving the victim gas money, but did not remember how much. This would have conflicted with defense witness Tom Burton’s testimony that appellant looked in his wallet and stated that C.H. took a $100 bill. Appellant also told the detective he had given money to and purchased clothes for C.H. in the past.

In summary, we reverse and remand for a new trial on point one, and affirm as to points two and three. Appellant’s fourth issue is now moot.

Reversed and remanded for a new trial.

Levine, J., and Greenhawt, Susan F., Associate Judge, concur.

* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez-Powell, Judge; L.T.

Not final until disposition of timely filed motion for rehearing.

——–

^1. “Larry” was not called as a witness by either party.

^2. For the purposes of paragraph (b), the term “child molestation” includes lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age. § 90.404(2)(b)2.

^3. We note that the remoteness factor would be less significant when the sexual abuse is generational or intrafamilial, and if the prior incidents were similar to the current act. See State v. Maestas, 224 N.W.2d 248, 251 (Iowa 1974) (concluding intrafamilial nature of prior abuse coupled with similarity of the prior acts rendered six-and ten-year-old incidents admissible); Bryson v. SState, 437 S.E.2d 352, 355 (Ga. Ct. App. 1993) (holding thirty-one-year lapse between abuse of daughter and granddaughter did not render prior abuse evidence inadmissible per se); State v. Cichon, 458 N.W.2d 730, 734 (Minn. Ct. App. 1990) (finding fourteen-year gap did not render prior abuse evidence irrelevant in intrafamilial situation when events were similar).
——–

Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.

Before GERSTEN, SHEPHERD, and LAGOA, JJ.

PER CURIAM.Cassandra Senatus appeals from her conviction for resisting an officer without violence. She argues that the trial court improperly denied her peremptory

Page 2

challenge of a prospective juror based on a finding that the reasons for the strike were not genuine. We agree with Senatus’s contention that the trial court should have allowed the peremptory challenge. There is nothing in the record to suggest that defense counsel’s concededly race-neutral reasons for striking the prospective juror were not genuine. Indeed, the record reveals that none of the Slappy¹ factors indicating pretext are present. As such, the absence of record support for the trial court’s “genuineness” finding requires reversal. See Scott v. State, 920 So. 2d 698 (Fla. 3d DCA 2006); Hamdeh v. State, 762 So. 2d 1030 (Fla. 3d DCA 2000); see also Julmice v. State, 14 So. 3d 1199, 1204 (Fla. 3d DCA 2009) (citing Hamdeh, stating that there was no record basis for concluding that defense counsel’s proffered reason for the peremptory challenge was not genuine), review denied, 22 So. 3d 68 (Fla. 2009). Accordingly, the conviction is reversed and remanded for a new trial.

Reversed and remanded.

——–

^1. State v. Slappy, 522 So. 2d 18 (Fla. 1988).
——–

Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

Taylor, J.

Kenneth Johnson was convicted of two counts of lewd or lascivious battery. The charges arose from a sexual relationship between Johnson, a 37-year old man, and a 13-year old girl. He appeals, arguing that the trial court erred by admitting evidence that the victim twice attempted to commit suicide after the relationship was revealed and the defendant was arrested. Because any probative value of this evidence was substantially outweighed by the danger of unfair prejudice, and the error in admitting it was not harmless, we reverse for a new trial.

Before trial, Johnson filed a motion in limine to exclude, among other items, “[a]ny and all evidence or testimony relating to the alleged victim being Baker Acted or attempting to commit suicide subsequent to Defendant’s arrest.” At the hearing on the motion, the state argued that evidence that the victim tried to commit suicide the day Johnson was arrested and shortly after a phone conversation with him was inextricably intertwined because it showed the effect that Johnson had on her and the control he held over her. Defense counsel countered that any probative value of this evidence was substantially outweighed by the danger of prejudice.

In denying the motion in limine, the court concluded that evidence of the victim’s suicide attempts was relevant and could be helpful to the defense, as well as to the state. The court commented:

I think it cuts right down the middle. It could show that she was in turmoil because of the allegations she made, that

Page 2

were allegedly on the defense’s behalf untrue, or that they were true and now she has to come to court and she couldn’t stand for it and couldn’t be put through the embarrassment and she tried to hurt herself. So, it’s relevant for both sides. So it’s going to be allowed.

The victim testified at trial that she had a sexual relationship with the defendant, which began when she was 13 years old. The defendant was a neighbor and the father of friends of the victim. Sexual contact between the defendant and the victim took place at a lake, the defendant’s house, and in a truck.¹ The victim said that the defendant gave her gifts and asked her to marry him. During direct examination, the prosecutor asked her how the relationship affected her:

STATE:… As a result of your relationship with

Mr. Johnson, how has that affected you?

VICTIM: I got held back and

DEFENSE: Judge, I’m going to object as to relevance.

COURT: Overruled. Go ahead. You can answer it.

VICTIM: (Continuing) I got held back, and I’ve been having depression problems, and I have to go through counseling.

STATE: And I know that this is difficult to talk about in front of everyone. Did you ever try and take your own life?

VICTIM: Yes.

STATE: How many times?

VICTIM: Twice.

STATE: Was this as a direct result of your relationship with Mr. Johnson?

VICTIM: Yes.

DEFENSE: Judge, I’m going to object again.

COURT: Overruled.

VICTIM: (Continuing) Yes.

The victim’s mother also testified that the victim tried to kill herself twice and that both of these incidents were tied to her relationship with the defendant. She explained that the first attempt was after she met with police and told them about her sexual relationship with the defendant. The second attempt was after a phone call with the defendant.

Page 3

The detective who interviewed the victim at the police department testified about one of the suicide attempts. She said that during the interview she told the victim about the defendant’s arrest. Then, as the victim and her parents were leaving the police station and walking to their car, the victim suddenly ran away and started to run into traffic on a busy road. Two cars swerved around to avoid her, and two police officers grabbed and restrained her. Afterwards, the victim was involuntarily committed to a mental facility pursuant to the Baker Act.

In addition to the victim’s testimony, other evidence adduced by the state to prove the sexual battery charges included testimony of the victim’s sister. The victim’s sister said she witnessed behavior between the defendant and the victim that strongly suggested there had been an inappropriate relationship between them. Such behavior included their isolating themselves from everyone and spending time alone in the defendant’s truck and at the deep end of the swimming pool. The victim’s sister testified that once she saw the defendant and the victim, with their top clothing removed, lying together on a bed in a back room of the defendant’s trailer. She also testified that the victim confided in her that she and the defendant engaged in sexual activity at the lake.

The state also introduced recorded conversations between the defendant and his sons and between the defendant and the victim that indicated a sexual relationship. In a recorded conversation between the defendant and one son, the defendant displayed jealously upon hearing that the victim was spending time with a new boyfriend. In another recorded conversation, the defendant told the victim that if she recanted her accusations and emancipated herself from her parents, they could spend the rest of their lives together.

The jury found the defendant guilty as charged of two counts of lewd and lascivious battery. He was sentenced to 15 years on each count, with credit for 227 days time served. The defendant appealed.

On appeal, the defendant’s sole contention of error concerns testimony that the victim twice attempted to commit suicide as a result of her sexual relationship with the defendant and was Baker Acted. The defendant argues that any probative value of this evidence was substantially outweighed by the danger of unfair prejudice. The state argues that even if admission of this evidence was error, such error was harmless.

Page 4

“A trial court’s decision to admit evidence is reviewed using the abuse of discretion standard of review, as limited by the rules of evidence.” Philippon v. Shreffler, 33 So. 3d 704, 708 (Fla. 4th DCA 2010) (citing Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So. 2d 753, 754 (Fla. 4th DCA 2008)). A court abuses its discretion when the decision is “‘arbitrary, fanciful, or unreasonable.’” Johnson v. State, 904 So. 2d 400, 405 (Fla. 2005) (quoting White v. State, 817 So. 2d 799, 806 (Fla. 2002)).

Evidence that tends to prove or disprove a material fact is relevant and admissible. §§ 90.401-90.402, Fla. Stat. (2008). Here, the trial court determined that evidence of the suicide attempts tended to do both: to prove and disprove the unlawful sexual conduct. The court found the evidence “relevant for both sides,” because, on the one hand, it suggested that the victim was telling the truth about the sexual relationship and, thus, could not face the embarrassment of a court trial; on the other hand, it showed that she was lying and thus in turmoil because of the false allegations. Under traditional concepts of relevancy, for evidence to be relevant, it must have a logical tendency to render a proposition more or less probable. Thus, if the evidence “cuts both ways,” its probative value is minimal at best.

Appellant argues that regardless of whether this evidence was relevant for some purpose, it should not have been admitted because its probative value was substantially outweighed by the danger of unfair prejudice. Indeed, “relevancy is not the only test for admissibility.” Taylor v. State, 855 So. 2d 1, 21 (Fla. 2003) (citing Sexton v. State, 697 So. 2d 833, 837 (Fla. 1997)). Under section 90.403, Florida Statutes (2008), even if evidence is relevant, it may be inadmissible if the “probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

A trial court has considerable discretion in determining whether the probative value of the evidence is substantially outweighed by its prejudicial effect, but this discretion must be exercised by following controlling legal principles:

“In weighing the probative value against the unfair prejudice, it is proper for the court to consider the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.”

Page 5

Taylor, 855 So. 2d at 22 (quoting State v. McClain, 525 So. 2d 420, 422 (Fla. 1988)) (emphasis added).

“Where a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, an appellate court will not overturn that decision absent a clear abuse of discretion.” Trees v. K-Mart Corp., 467 So. 2d 401, 403 (Fla. 4th DCA 1985). Here, however, the record does not show that the trial court weighed the probative value of the evidence against prejudicial impact before deciding to admit the evidence. The record is thus silent as to what factors, if any, the court considered in overruling the section 90.403 objection.² We conclude, based on our own review of this issue, that the trial court erred in admitting evidence of the suicide attempts; its probative value was substantially outweighed by the danger of unfair prejudice.

In Aho v. State, 393 So. 2d 30, 31 (Fla. 2d DCA 1981), the Second District Court of Appeal reversed a defendant’s conviction of involuntary sexual battery because the trial court improperly admitted a police officer’s testimony that the victim stated that, as a result of the sexual batteries by the defendant, she was very upset and had considered committing suicide. In Aho, although the court opined that the police officer’s testimony may have been relevant to the issue of the victim’s consent, it concluded that the testimony was “highly inflammatory and may well have tipped the scales.” Id. at 31.

In this case, as mentioned above, the probative value of the victim’s suicide attempts was only marginally probative in corroborating commission of the charged crimes. This evidence had little bearing on the truthfulness of the victim, because as the trial court found, it tended to show that the victim was distraught either because she was lying or because she was telling the truth. With regard to prejudice, this testimony had a substantial likelihood of inflaming the jury and

Page 6

appealing to their emotions.³ See Aho, 393 So. 2d at 31 (citing e.g. Bynum v. State, 80 So. 572 (Fla. 1919), which held that “it was reversible error to admit testimony concerning the sufferings or impairment of health of the prosecuting witness in a rape case”). See also Matthews v. State, 772 So. 2d 600, 602 (Fla. 5th DCA 2000) (stating that “the testimony must not inflame the jury so as to taint its verdict”). Similarly, in this case, the trial court erred in admitting testimony about the suicide attempts and hospital commitment.

We cannot say that the error in admitting evidence of the suicide attempts was harmless. The state has not met its burden “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). As mentioned above, the state elicited evidence concerning the suicide attempts and Baker Act commitment from three witnesses and a recorded phone conversation. It further commented on this evidence during closing argument. The state’s contention that the error was harmless because the evidence against the defendant was overwhelming is unavailing, since the state did not dispel the reasonable possibility that the error contributed to the defendant’s convictions. Ventura v. State, 29 So. 3d 1086 (Fla. 2010). Accordingly, we reverse the judgment of convictions and remand the case to the trial court for a new trial.

Reversed and Remanded For New Trial.

Warner and May, JJ., concur.

* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Lee Seidman, Judge; L.T.

Page 7

Not final until disposition of timely filed motion for rehearing.

——–

^1. The information filed by the state alleged that between August 1, 2007, and January 6, 2008, the defendant inserted his penis and finger into her vagina.

^2. Defense counsel specifically argued that the probative value of evidence of the victim’s suicide attempts was outweighed by the danger of unfair prejudice, thus preserving the error for appeal and obligating the trial court to apply the section 90.403 balancing test. See Reynolds v. State, 660 So. 2d 778, 780 (Fla. 4th DCA 1995) (stating that counsel must specifically object to the admission of relevant evidence under section 90.403 to require the trial court to resolve the issue and to preserve the issue for appeal).

^3. In one of the recorded phone conversations, the defendant asked his son if the victim tried to kill herself, and then said that he was “worried about her because she’s been Baker Acted, and I thought she was going to kill herself.”
——–

Nelson A. Fernandez, in proper person.

Bill McCollum, Attorney General, for appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Beatrice A. Butchko, Judge.

Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

Page 2

This is an appeal of an order denying a motion under Florida Rule of Criminal Procedure 3.800(a), and alternatively a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, in which Nelson A. Fernandez requests additional credit for time served. Defendant-appellant Fernandez contends that he is entitled to additional credit for time served as a resident at Southern Winds Hospital for psychological treatment. The terms of his placement at that facility are not clear in the postconviction record now before us. For present purposes we assume, but do not decide, that the defendant was entitled to additional credit under Tal-Mason v. State, 515 So. 2d 738 (Fla. 1987).

We affirm the trial court’s order on authority of Joyner v. State, 988 So. 2d 670 (Fla. 3d DCA 2008), review granted, 17 So. 3d 705 (Fla. 2009). The defendant signed the same form of Agreement for Credit for Time Served that was involved in Joyner.

Affirmed.

Ross A. Keene of Beroset & Keene, Pensacola, for Appellant/Cross-Appellee.

Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.

An appeal from the Circuit Court for Escambia County.T. Michael Jones, Judge.

WOLF, J.

Appellant challenges his convictions for sexual battery by vaginal penetration and attempted sexual battery on a person helpless to resist. He raises a number of issues; we find merit in one. Appellant’s dual convictions violate principles of double jeopardy. We, therefore, reverse the conviction for attempted sexual battery on a person helpless to resist and remand for resentencing on the

Page 2

sexual battery. In light of our disposition, it is unnecessary for us to address the State’s cross-appeal challenging the downward departure sentence imposed by the trial court.

Following a trial, appellant was convicted of:

COUNT I: [Appellant] on or about March 30, 2008, at and in Escambia County, Florida, did unlawfully commit a sexual battery upon a person twelve (12) years of age or older, to-wit: [victim]… nineteen years of age, by penetration of the vagina of said victim by the penis of said defendant without the consent of [victim], and in the process thereof did not use physical force and violence likely to cause serious personal injury, in violation of Section 794.011(5), Florida Statutes.

COUNT 3: [Appellant] on or about March 30, 2008, at and in Escambia County, Florida, did unlawfully attempt to commit a sexual battery upon a person twelve years of age or older, to-wit:, [victim]…, nineteen years of age, without the consent of said victim, and while the said victim was physically helpless to resist, in violation of Section 794.011(4)(a), Florida Statutes.

At trial, evidence established appellant entered a room where an intoxicated young woman was sleeping and began to undress her. After the young woman awoke, appellant continued his sexual assault and, in doing so, completed an act of vaginal penetration.

Appellant asserts his convictions violate double jeopardy. “The most familiar concept of the term ‘double jeopardy’ is that the Constitution prohibits subjecting a person to multiple prosecutions, convictions and punishments for the

Page 3

same criminal offense.” Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). However, there exists “no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction, as long as the Legislature intends to authorize separate punishments.” McKinney v. State, 24 So. 3d 682, 683 (Fla. 5th DCA 2009) (citing Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001)). In deciding whether separate offenses exist, absent clear Legislative intent, Florida law requires a three-step inquiry into whether the same offense has been charged multiple times.

Specifically, in order to determine if appellant’s convictions violate double jeopardy, we must first ascertain if the charges were based on an act or acts which occurred within the same criminal transaction and/or episode. If the charge did occur during the same transaction or episode, we must then determine if the convictions were predicated on distinct acts. If the charges are not predicated on distinct acts and have occurred within the same criminal episode, we must next decide if the charges survive a same elements test as defined by section 775.021, Florida Statutes (2008), commonly referred to as the Blockburger¹ analysis, which provides in pertinent part:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may

Page 4

order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

A. Same Criminal Transaction and/or EpisodeMultiple punishments and convictions may rest on offenses occurring within differing criminal episodes. In State v. Paul, 934 So. 2d 1167, 1173 (Fla. 2006) (overruled on other grounds by Valdes, 3 So. 3d 1067), the supreme court reasoned in order to determine if offenses arose out of the same criminal episode, a reviewing court must:

“look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2nd DCA 2002)); see also Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001) (same); Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004) (holding that in order for crimes to be considered to have occurred in more than one criminal episode, there must be a sufficient

Page 5

temporal break between the two acts in order to allow the offender to reflect and form a new criminal intent for each offense).

Here, based on the testimony provided at trial, the conduct giving rise to the charges occurred within a small time span of minutes, included no discernable temporal break, and was committed on the same victim. Consequently, this appears to have been one criminal episode. Paul, 934 So. 2d at 1173.

B. Distinct ActsIn addition to asking whether the charges arose out of a single criminal episode, we must also decide if the charges were predicated on distinct criminal acts. Specifically, in Hayes, 803 So. 2d at 700, the supreme court recognized “the prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts.” (Emphasis in original). See also Valdes, 3 So. 3d at 1078 n.12 (noting in that case, “because one criminal act gave rise to multiple separate offenses, double jeopardy is not violated,” which is “distinguishable from cases in which double jeopardy is not a concern because multiple convictions occurred based on two distinct criminal acts.”).

In applying the distinct acts exception to double jeopardy principles, the court in Hayes limited the exception’s application. 803 So. 2d at 700-01. Specifically, not all charges arising out of different acts occurring within the same criminal episode will rise to the level of “distinct” acts and allow for a finding of

Page 6

multiple offenses. Hayes, 803 So. 2d at 700. Instead, the relevant inquiry into whether acts are “distinct” rests on factors such as whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a change in location between the acts; and/or (4) a new criminal intent formed. Id. (citing Hearn v. State, 55 So. 2d 559, 560 (Fla. 1951); Brown v. State, 430 So. 2d 446, 447 (Fla. 1983)); see also Saavedra v. State, 576 So. 2d 953, 958 (Fla. 1st DCA 1991) (holding the crucial question in determining whether distinct acts occurred is typically whether defendant had time to reflect and form a new criminal intent between the acts).²

In addition to the foregoing, Florida courts have also held the Florida sexual battery statutes are particularly susceptible to the distinct acts exception because the statutes “may be violated in multiple, alternative ways, i.e., ‘oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other act.’” See Saavedra v. State, 576 So. 2d 953, 956-57 (Fla. 1st DCA 1991); see also State v. Meshell, 2 So. 3d 132 (Fla. 2009); § 794.011(1)(h), Fla. Stat. (2008).

Thus, convictions for these “sexual acts of a separate character and type requiring different elements of proof” do not violate double jeopardy because the acts are “distinct criminal acts that the Florida Legislature has decided warrant

Page 7

multiple punishments.” Meshell, 2 So. 3d at 135; see also Yeye v. State, 35 Fla. L. Weekly D938 (Fla. 4th DCA Apr. 28, 2010) (citing M.P. V. State, 682 So. 2d 79, 81 (Fla. 1996), for the proposition that the prevailing standard for “determining the constitutionality of multiple convictions… for offenses arising from the same criminal transaction… is whether the legislature ‘intended to authorize separate punishments for two crimes.’”).

Based on the foregoing, recently, in Meshell, the supreme court upheld two lewd and lascivious battery charges arising out of the same criminal episode because the charges were clearly predicated, in the charging information, on distinct sex acts. 2 So. 3d at 135.

Here, similar to Meshell, appellant was charged with two counts of sexual battery; however, unlike Meshell, neither the charging information nor the jury verdict form included language clearly predicating the disputed charges on two distinct sex acts. The ambiguous wording of the charging information and the jury verdict makes it impossible for this court to know if the jury convicted appellant for one act of sexual battery or two distinct acts. Specifically, the jury could have found appellant guilty of both the attempt (which began prior to the victim awakening) and the completion of the same criminal act (which ended after she was no longer incapacitated).

Page 8

For that reason, while there exists a distinct acts exception to double jeopardy, we may not apply that exception on the record before us. See also Roberts v. State, 35 Fla. L. Weekly D1378 (Fla. 1st DCA June 21, 2010) (finding convictions for sexual battery and lewd or lascivious molestation for acts committed in the same criminal episode were based on distinct criminal acts and, therefore, did not violate double jeopardy principles, noting the “distinction is readily apparent here because the information and jury verdict form included particulars for each charge.”); Duke v. State, 444 So. 2d 492, 493-94 (Fla. 2nd DCA 1984) (finding no double jeopardy violation where the charging information included two counts for (1) attempted vaginal penetration followed a moment later by (2) attempted anal penetration because the differing sex acts constituted distinct acts for double jeopardy purposes).³

C. Blockburger and its ExceptionsHad distinct acts been found, the analysis would end here. However, because it is unclear if the charges were predicated on distinct acts, we must next engage in the Blockburger same elements test, i.e., whether each offense has an element that the other does not. § 775.021(4)(a), Fla. Stat. (2008). In section

Page 9

775.021(4)(b), the Legislature made clear its intent to “convict and sentence for each criminal offense committed in the course of one criminal episode or transaction….” However, in doing so, the Legislature provided for three exceptions to this general rule which would prohibit multiple convictions for (1) “offenses which require identical elements of proof;” (2) “offenses which are degrees of the same offense as provided by statute;” or (3) “offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b), Fla. Stat. (2008).

In the underlying case, the offense of attempted sexual battery on a person helpless to resist includes elements (person helpless to resist and attempt) that the sexual battery through penetration offense does not. Thus, the offenses survive the initial inquiry of the Blockburger analysis. However, because the offenses constitute degrees of one another as that term has been recently defined in Valdes, they fall into the exception outlined in section 775.021(4)(b)(2), and reversal is required. 3 So. 3d at 1068-77.

Admittedly, the application of this subsection has had a long and confusing history in Florida law. However, recently in Valdes, 3 So. 3d at 1076, the supreme court attempted to clear up any confusion over this subsection’s application by announcing a new test:

the plain meaning of the language of subsection (4)(b)(2)… is that “[t]he Legislature intends to disallow separate punishments for crimes

Page 10

arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.”

quoting Paul, 934 So. 2d 1167 (Cantero J., concurring) (emphasis in original).

The statute itself creates an exception for crimes that “are degrees of the same offense as provided by statute.’” § 775.021(4)(b)(2), Fla. Stat. (1999) (emphasis added). By its very language, this exception is intended to apply narrowly. It prohibits separate punishments only when a criminal statute provides for variations in degree of the same offense, so that the defendant would be punished for violating two or more degrees of a single offense. See Sirmons v. State, 634 So.2d 153, 156 (Fla.1994) (Grimes, J., dissenting) (highlighting the phrase “as provided by statute” and concluding that the “Court’s obligation is to apply the statute as it is written”). One example is the theft statute, which expressly identifies three degrees of grand theft and two degrees of petit theft. See § 812.014, Fla. Stat. (2005). Another is the homicide statute, which expressly identifies three degrees of murder, as well as multiple forms of manslaughter. See id. §§ 782.04, 782.07. Yet another is arson, which has two degrees. See id. § 806.01. It is in such cases, and only such cases, that the exception was intended to apply.

Valdes, 3 So. 3d at 1076 (quoting Paul, 934 So. 2d at 1177-78 (Cantero, J., concurring) (emphasis in original)). At first blush, this explanation appears to overlap with the third exception dealing with lesser included offenses. However, in clarification, in Valdes, the court noted that:

Numerous examples of degree variants are found throughout Florida Statutes. Many of these examples would satisfy both the second and third statutory exception to the Blockburger test, in that they would constitute “degrees of the same offense as provided by statute” (subsection 4(b)(2)) and “lesser offenses the statutory elements of which are subsumed by the greater offense” (subsection 4(b)(3)). However, note that if a defendant received multiple convictions under sections 790.15(1), 790.15(2), and 790.15(3), the offenses would satisfy the second statutory exception, but not the third.

Page 11

3 So. 3d at 1078 n.11.

The subsections referred to above authorize punishments for (1) knowingly discharging a firearm in any public place (first-degree misdemeanor); (2) discharging a firearm within 1, 000 feet of any person while an occupant in a vehicle (second-degree felony); and (3) knowingly directing another to discharge a firearm while in a vehicle (third-degree felony). § 790.15, Fla. Stat. (2009). However, the statute expressly notes an individual should be charged with subsection (1) unless he or she is guilty of either subsection (2) or (3), thereby creating Legislative intent to cap offenses charged to either (1) or (2) and (3).

Based on the foregoing, charges stemming from one act giving rise to offenses that are (1) included in the same charging statute and are (2) expressly provided by statute to be degrees of one another violate double jeopardy pursuant to Valdes regardless of whether each subsection charges a different element. In fact, since Valdes, two courts have acknowledged the degrees of one another exception to provide relief for those with dual convictions based on subsections of the same statute. See Smith v. State, 19 So. 3d 417 (Fla. 2d DCA 2009); RuizAlegria v. State, 14 So. 3d 1276 (Fla. 2d DCA 2009).

In the instant case, appellant was charged with violations of section 794.011(5) and section 794.011(4). Section 790.011(6) states, “[t]he offense described in subsection (5) is included in any sexual battery offense charged under

Page 12

… subsection (4).” As such, the State correctly concedes there is a statutory trigger which would render the two offenses degrees of one another as that term is defined in Valdes. Accordingly, we reverse appellant’s conviction and sentences with directions to strike the conviction for attempted sexual battery on an incapacitated person.

We further direct appellant be resentenced in light of the amended conviction. In doing so, we note if the trial court intends to depart downward from the guidelines sentence, we remind the court that all evidence used to support the departure must be included in the record.

REVERSED.BENTON and PADOVANO, JJ., CONCUR.

——–

^1. Blockburger v. United States, 284 U.S. 299 (1932).

^2. According to Hayes, this analysis, though similar, differs from the analysis in determining whether two criminal transactions or episodes have taken place.

^3. This is not to say that a charging information and/or jury verdict form that specifies different acts would necessarily support the application of a distinct acts exception to the Blockburger statute. As noted in the opinion, a finding of different acts does not mandate a conclusion that those acts were distinct as that term is defined by Hayes and Meshell.
——–

Vernon Donaldson, pro se, Appellant.

Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.

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

An appeal from the Circuit Court for Duval County. L. P. Haddock, Judge.

PER CURIAM.

The appellant has filed a rule 3.800(a) motion asserting that his habitual violent felony offender sentence is illegal because his prior offense of aggravated

Page 2

assault on a law enforcement officer is not an enumerated felony under section 775.084(1)(b), Florida Statutes (2000). To support his allegations, the appellant indicates that the records demonstrate an entitlement to relief and he has attached a copy of the state’s notice of intent to classify him as a habitual violent felony offender which establishes he was previously convicted of aggravated assault on a law enforcement officer. We reverse the denial of the appellant’s facially sufficient motion and remand.

Pursuant to section 775.084(1)(b), Florida Statutes, prior to imposing a habitual violent felony offender sentence the sentencing court must find that the defendant has been previously convicted of an enumerated felony. Prior versions of the statute permitted a habitual violent felony offender sentence for aggravated assault; however, the version applicable to the appellant’s case requires aggravated assault with a deadly weapon. §775.084(1)(b)(1)(g), Fla. Stat. (2000). At sentencing, in order to support a habitual felony violent offender sentence, the state must show that the aggravated assault was committed with a deadly weapon. See McCoy v. State, 942 So. 2d 919 (Fla. 2d DCA 2006). The postconviction court has failed to attach any records refuting the appellant’s claim that his prior offense of aggravated assault on a law enforcement officer does not qualify for a habitualized sentence.

Page 3

Accordingly, we reverse the summary denial of the appellant’s motion and remand for record attachments which conclusively refute the appellant’s claim or if appropriate, to resentence the appellant without the habitual felony offender designation.

REVERSED AND REMANDED.

DAVIS, PADOVANO, and LEWIS, JJ., CONCUR.

William R. Ponall and Warren W. Lindsey, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Darius Jamine Polite timely appeals his convictions by jury verdict for burglary of a dwelling with an assault or battery, robbery with a firearm, aggravated assault with a firearm and possession of a firearm by a convicted felon.¹ Polite contends: (1) that the trial court improperly admitted the victim’s written statement into evidence because the

Page 2

predicate for past recollection recorded was not established; (2) that the court improperly admitted evidence of the victim’s out-of-court identification of Polite from a photo line-up, because the State did not question the victim about the identification during its direct examination of her; and (3) that the trial court abused its discretion in denying his request for a mistrial. We affirm, and write primarily to address the first two issues.

BackgroundOn the morning of July 14, 2008, three men broke into the home of Falisa Levine and her two daughters, ages fifteen and ten. The men kicked in the front door, and rushed inside with two guns drawn, initially taking Ms. Levine’s purse. Ms. Levine recognized Polite, who lived in the neighborhood, and began screaming his name. When Polite recognized Ms. Levine, he told the other men that they had the wrong house, returned the purse, and ran out. According to Ms. Levine, Polite held one of the guns, which he pointed at her head before recognizing her. Another assailant pointed the second gun at the children during the encounter.

The deputy who responded to the 911 call testified that when he arrived Ms. Levine and her daughters were in the front yard, and all of them were hysterical, not believing what had just occurred. The deputy spoke to Ms. Levine, who told him what happened and identified Polite by name as one of the men who broke into her home. She then gave a sworn written statement, detailing the events and again identifying Polite by name as one of the robbers. Later, she identified Polite in a photographic line-up.

At trial, however, Ms. Levine was extremely reluctant to testify. Before she entered the courtroom, the prosecutor informed the trial court that Ms. Levine would not stop crying because she was afraid that something would happen to her or her children if she

Page 3

testified. Upon being brought into the courtroom, Ms. Levine tried to avoid testifying, telling the trial court that she could not answer questions, as she was too traumatized to do so. On the stand, when first asked to tell the jury what happened, Ms. Polite answered: “I cannot do this.” She then explained that: “I told them [the State] that I didn’t want to do this; they’re making me.” After being instructed by the trial court that she must answer the parties’ questions, Ms. Levine eventually began answering some questions. She admitted that the police came to her home, and that she and her daughters had told the police what happened. When shown her sworn statement, she identified it as the statement she gave to police on the day of the incident, but would not attest that the statement was “true and correct,” stating that she was too traumatized to read it in the courtroom. She then again flatly refused to read the statement or to testify in court about anything that happened on July 14. The judge ordered the jury removed, and instructed Ms. Levine that she was under subpoena and could not refuse to answer questions. After a further exchange, the trial judge told Ms. Levine that she was being ordered to “answer the questions truthfully” and that “[s]aying I’m not going to answer is not an option.”

The jury was returned to the courtroom and Ms. Levine testified, by answering “yes or no” questions, that three men kicked in the door to her home, and came in. She also agreed that one of the men put a gun in her daughter’s face, but then began claiming lack of memory of the events. Ms. Levine was again shown her sworn statement, and again authenticated the document. She also testified that she made the statement “at the time or shortly after the event.” This time, when asked whether the events were “fresh” in her mind when she gave this statement, she answered, “not really,” and that “[t]he police and

Page 4

everybody was pressuring me.” Notwithstanding, Ms. Levine conceded that she wrote the statement “like an hour” after experiencing the events described in the statement. When the prosecutor asked Ms. Levine if the statement was true and correct, defense counsel objected, stating only: “That’s past recollection recorded.” Before the trial court ruled on the objection, defense counsel withdrew it. However, Ms. Levine was never asked or directed to answer the question, and the question was not restated.

The prosecutor then sought to admit Ms. Levine’s out-of-court statement as past recollection recorded. Defense counsel objected on grounds that the rule only allowed an adverse party to admit the document into evidence. The prosecutor correctly responded that the rule allowed the party offering the statement to have it read to the jury, but that the document itself could only be admitted into evidence (and shown to the jury) upon motion by the adverse party. The trial court agreed, and asked defense counsel if he had any other basis for objection. He then objected on Sixth Amendment (Confrontation Clause) grounds. The trial court overruled this objection, noting that the declarant was on the witness stand and subject to cross-examination. When the trial court asked for any other legal ground for an objection, defense counsel offered no further objection, and the statement was read to the jury soon thereafter. It stated:

I, Falisa Levine, was coming out of my bathroom when I heard a loud bang. I looked into my kitchen and noticed three black men entering the door by kicking it in. Two men I did not recognize, one I did only knowing him as Darius. Darius I know from the neighborhood. Darius then told me to get on the ground and also had handgun to head. When I screamed his name, Darius, he then said to other guys, we have the wrong house. One guy took my purse and Darius told him to put it back. The guys then ran out the door. Only two of the guys had handguns. Third guy did not. One of the guys did put handgun on kids. That is the guy that had his face covered up. The third guy came in after other two

Page 5

guys had already entered not doing anything but looking around. I then asked Darius why he is doing this and he said that he has the wrong house. He then walked outside leaving yard as I walked behind to see how they were traveling. I do know that this is Darius as soon as he entered my home. After that Darius then called my name. All the suspects left. I then tried to call police and phone line would not work. Second suspect did put purse on the shoulder and took my money totaling $250 out of my purse. That’s when Darius told him to put it back because this is like family.

First suspect 6’2, 200 pound black male; second suspect, 5’2, 130 pound, black male; third suspect, 5’2 130 pound black male.

Sworn to and subscribed before me, this 14th day of July, 2008. Deputy Sheriff Brissette. I swear/affirm the above attached statements are correct and true, Falisa Levine.

On cross-examination, Ms. Levine testified that she could have made a mistake in her statement as “[t]hey was pressuring [her]” and she “[did not] even know if [she] got the right person.”

Police investigation verified that there was damage to the front door of Ms. Levine’s home–that the door had been kicked in, causing the door frame to split. Further investigation verified that the telephone line had been cut outside. A videotape from a camera located across the street from the victim’s house confirmed the arrival of the three men; showed one of them going to the side of the house (where the phone line had been cut), and then reappearing; showed the three then going in through the front door; and, showed them leaving the house and driving away a few minutes later.

Polite was located that same day. He initially fled from the marked patrol car, but police officers were able to secure him. Polite was interviewed by the police the same day and again several days later, both times denying any involvement in the charged offenses. In the interviews, Polite maintained that he went to a local diner for breakfast,

Page 6

then went to a nearby convenience store with a couple of friends, then to a friend’s house, but that he did not go near the victim’s house.

Evidence was also introduced that Polite’s movements were being monitored as a requirement of probation, using a GPS ankle monitor, at the time of the crimes. The GPS device reported Polite’s location every five minutes and was accurate to within 50 feet. The GPS signal confirmed that Polite was in or within 50 feet of the victim’s home at the time of the crimes. Additionally, evidence was introduced that the convenience store Polite claimed to have gone to about the time of the crimes was under video surveillance. Contrary to Polite’s statement to police, the store’s surveillance footage did not show Polite at the store at any time that afternoon.

The police officer who had interviewed Polite also testified that the victim later identified Polite as one of the offenders from a photographic line-up.

After deliberations, the jury returned a verdict finding Polite guilty of the charges, as previously indicated. He was sentenced as a prison releasee reoffender to concurrent terms of life in prison on the burglary and robbery charges, and to concurrent lesser sentences on the remaining counts. This appeal followed.

Admission of Victim’s Statement Under Past Recollection Recorded Hearsay ExceptionPolite contends that the trial court improperly allowed the State to read Ms. Levine’s written statement to the jury because the predicate for past recollection recorded was not established. More specifically, Polite contends that because Ms. Levine “never testified that the written statement accurately reflected the facts she allegedly observed on the date of the charged offenses or that she was being truthful at the time she wrote

Page 7

the statement”, the written statement should not have been admitted pursuant to section 90.803(5), Florida Statutes (2008).

We first find that this issue was not properly preserved for appellate review. Specifically, at trial, Polite never made the argument that he now attempts to make–that the foundation for admission under section 90.803(5), Florida Statutes (2008), may only be laid with testimony at trial from the declarant (the person who made the out-of-court statement). In fact, Polite’s counsel never pointed to any deficiency in the foundation laid by the State for admission of the statement.

It is well-settled that to preserve an issue for appellate review, “litigants, including criminal defendants, must… 1) mak[e] a timely contemporaneous objection in the trial court; 2) stat[e] the legal grounds for that objection; and 3) rais[e] the specific argument in the appellate court that was asserted as the legal ground for the objection or motion made in the trial court.” Sanchez v. State, 909 So. 2d 981, 984 (Fla. 5th DCA 2005) (citing Harrell v. State, 894 So. 2d 935 (Fla. 2005)). Applying this standard, it is clear that this issue was not preserved for review.

Even if Polite had preserved this issue for review, we believe that the evidence presented by the State was sufficient to secure admission of the statement under section 90.803(5). The hearsay exception for past recollection recorded provides:

Section 90.803(5) Recorded Recollection

The provision of s. 90.802² to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:Page 8

(5) Recorded Recollection.

A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

Polite correctly points out that Florida case law, as it stands currently, does not allow a written statement to qualify as a past recollection recorded unless the declarant lays the foundation for its admission with testimony at trial that he or she recorded the statement when the described events were fresh in his or her mind, and attests to the accuracy of the statement (either by testifying that he or she made an accurate record of the fact or event or that he or she is confident that the facts would not have been written unless they were true). E.g., Hernandez v. State, 31 So. 3d 873 (Fla. 4th DCA 2010) (holding that where witness was unable, or unwilling, to attest to the accuracy of the taped conversation, the state was not able to show it could introduce the same as a past recollection recorded); Smith v. State, 880 So. 2d 730 (Fla. 2d DCA 2004) (holding audio-tape recordings were inadmissible as past recollection recorded where witnesses did not testify that the recordings accurately reflected their memories of events when made); Montano v. State, 846 So. 2d 677 (Fla. 4th DCA 2003) (holding tape recorded statement given to police shortly after criminal incident was inadmissible under section 90.803(5) when witness did not remember its contents and did not testify that it correctly reflected her knowledge or that she tried to be truthful at the time of the making of the statement).

Page 9

We disagree with these cases because they are contrary to the plain language of the statute and rule.³ Section 90.803(5) simply requires as a foundation that the statement is “shown to have been made by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.” The statute does not say that this “showing” must always (or only) be made by testimony from the declarant. A plain reading of the statute would allow admission of the statement so long as the state presented evidence (from any source) sufficient to support a finding that the statement was made when the matter was fresh in the witness’ mind, and that it was accurate. This is the approach taken by several cases applying the companion provision in the federal rules relating to past recollection recorded–Federal Rule of Evidence 803(5)–or identical state evidence rules. See U.S. v. Porter, 986 F.2d 1014, 1017 (6th Cir.) (“Rule 803(5) does not specify any particular method of establishing the knowledge of the declarant nor the accuracy of the statement. It is not a sine qua non of admissibility that the witness actually vouch for the accuracy of the written memorandum. Admissibility is, instead, to be determined on a case-by-case basis upon a consideration… of factors indicating trustworthiness, or the lack thereof. While Rule 803(5) treats recorded recollection as an exception to the hearsay rule, the hearsay is not of a particularly unreliable genre. This is because the out-of-court declarant is actually on the witness stand and subject to evaluation by the finder of fact, in this case the jury.”), cert. denied, 510 U.S. 933 (1993); Pickett v. U.S., 822 A.2d 404, 406 (D.C. 2003) (stating that the court should adhere to the rule that the witness must confirm the accuracy of the recorded

Page 10

statement, but interpreting this to mean that unless the witness expressly repudiated the statement at trial, the trial judge “may consider all of the circumstances in finding the requisite confirmation, including the demeanor of the witness in court–evincing, for example, hostility or reluctance to testify–as well as the conditions under which the outof-court statement was made”); State v. Alvarado, 949 P.2d 831, 835-36 (Wash. Ct. App. 1998) (agreeing with Porter and holding that the requirement that a recorded recollection accurately reflect the witness’s knowledge may be satisfied without the witness’s direct averment of accuracy at trial and that the court must examine the totality of the circumstances, including (1) whether the witness disavows accuracy; (2) whether the witness averred accuracy at the time of making the statement; (3) whether the recording process is reliable; and (4) whether other indicia of reliability establish the trustworthiness of the statement); State v. Marcy, 680 A.2d 76, 78-81 (Vt. 1996) (following Porter and holding that the plain language of rule 803(5) does not add a requirement that the declarant must testify that the statement accurately reflected his or her knowledge at the time the statement was made, and that “[h]ad the drafters intended this result, they could easily have accomplished it by changing the language of the rule. Instead, the rule is phrased in the passive voice, requiring only that the memorandum or record be ‘shown to have been made or adopted by the witness[,]‘” and concluding that the language of the rule contemplates a more flexible case-by-case determination of the admissibility of a statement as past recollection recorded).

In this case, the victim testified that three men came to her house, kicked the door open, and put a gun to her daughter’s face. Beyond this, the victim testified that she could not remember any more details at the time of trial. As pointed out by the State, this

Page 11

event would qualify as “a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately.” § 90.803(5), Fla. Stat. (2008). Further, the victim identified the written statement as the statement she gave to police on the day of the crime, approximately one hour after the events took place, and testified that she told the police what happened when they came to her house. Given the totality of the circumstances in this case, including that the witness swore to the statement as true at the time she gave it; that she was still consumed with the emotions of the event when talking with police; and that other evidence corroborated her statement, we find that there was sufficient evidence to lay a foundation for admission of the statement under section 90.803(5), even though the declarant herself never confirmed the accuracy of the statement at trial.

Admission of Evidence Regarding Victim’s Identification of Polite from a Photo Line-UpPolite next contends that the trial court abused its discretion by admitting evidence of Ms. Levine’s out-of-court identification of him from a photo line-up on grounds that the State failed to inquire into this issue during its direct examination of Ms. Levine. E.g., Deans v. State, 988 So. 2d 1271 (Fla. 5th DCA 2008) (holding that trial court erred when it admitted out-of-court identification of defendant when the witness who made the identification was never asked about defendant’s identity at trial); Neilson v. State, 713 So. 2d 11110 (Fla. 2d DCA 1998) (holding that testimony regarding out-of-court identification was inadmissible where the state failed to ask the witnesses about the identification during its direct examination). These cases are based upon the language of section 90.801(2)(c), Florida Statutes, which defines an out-of-court statement of identification as admissible non-hearsay only when the declarant testifies at trial and is

Page 12

“subject to cross-examination concerning the statement….”⁴ These cases reason that the declarant is not subject to cross-examination about a topic not covered during a direct examination because the party cross-examining a witness must generally limit its questions to matters within the “scope” of the direct examination. Id.; see also, § 90.612(2), Fla. Stat. (2009) (“Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.”); Chandler v. State, 702 So. 2d 186, 195 (Fla. 1997) (“‘cross-examination is generally limited to the scope of the direct examination’”) (quoting Charles W. Ehrhardt, Florida Evidence § 608.1 at 385 (1997 ed.).

In the instant case, the State questioned Ms. Levine, generally, about whether she had identified “the person… who had done this to you?” and whether she told police “the name of the person who had done this to you?” These questions, on direct, were broad enough to allow Polite’s counsel to cross-examine the witness regarding both her initial out-of-court identification and the later identification when shown a photo line-up. See Zerquera v. State, 549 So. 2d 189, 192 (Fla. 1989) (“When the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts… or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief,

Page 13

but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief.”) (quoting Coxwell v. State, 361 So. 2d 148, 151 (Fla. 1978)). We also note that although Ms. Levine did not acknowledge identifying Polite to the police in response to the State’s questions on direct, her acknowledgement was not necessary for admission of the evidence under section 90.801(2)(c). See, e.g., Brown v. State, 413 So. 2d 414, 415 (Fla. 5th DCA 1982) (holding that prior identification is not hearsay when the declarant is available at trial for cross-examination and that it “makes no difference whether the witness admits or denies or fails to recall making the prior identification”); A.T. v. State, 448 So. 2d 613, 614 (Fla. 3d DCA 1984) (finding prior identification admissible even though declarant testified at trial that he possessed neither past nor present ability to identify defendant). It was sufficient that the State opened the door for cross-examination regarding the topic of Ms. Levin’s out-of-court identification by asking her about it during its direct examination.

Denial of Mistrial MotionAs his final point on appeal, Polite contends that improper testimony by a police officer warranted a new trial. During the State’s direct examination, one of the testifying officers was asked to identify a photograph depicting a shoe-print on the door of the victim’s house. The prosecutor asked if the officer was able to match the print up with anything, and then why not. The defense objected, but the witness continued talking, stating that Polite was the one who kicked in the door, and that he was not wearing shoes at the time of his arrest. The trial court instructed the witness to stop talking; sustained the defense’s objection; and, instructed the jury to disregard the witness’s last comment. Polite’s counsel then moved for a mistrial, and this motion was denied.

Page 14

Although we agree with Polite that the comment was improper, we find no abuse of discretion in denial of the mistrial motion. The record reflects that the improper testimony was extremely brief, never used by the prosecutor in any way, and occurred while the trial court and defense counsel were also speaking. More importantly, the comment was cumulative of evidence that Polite himself placed before the jury. More specifically, the defense presented the officer’s theory of what happened–that it was Polite who kicked in the victim’s door–when it requested that Polite’s taped interview be played for the jury in full. During a portion of the interview played at the insistence of the defense, the same officer made the same statement to Polite.

AFFIRMED.

EVANDER, J., concurs.

TORPY, J., concurs specially, with opinion.

Page 15

TORPY, J., concurring specially.

I fully concur in the majority opinion. I write separately to address the past recollection recorded exception to the hearsay rule. The use of this rule to admit the statement of a recalcitrant witness is problematic. The rule is intended for use when a witness has a genuine lapse in memory about certain facts or under circumstances where the recordation is made to document details that no witness can be expected to recall, such as when a police officer records a vehicle identification number or makes an inventory. The rule is not intended for use when an uncooperative witness makes a disingenuous claim of amnesia as to an entire incident. Here, arguably, the witness was less than candid about her purported memory lapse. Nevertheless, that argument was not advanced below. Had it been advanced, the lawyers might have made further inquiry of the witness and the trial judge might have made a finding of fact as to whether the witness actually had a memory lapse. Because the issue was not preserved for our review, and indeed not argued here, my discussion on this point is simply an academic exercise.

As for the issue of whether the accuracy “showing” was made, although argued here, that issue was not preserved below by trial counsel.⁵ Adherence to the contemporaneous, specific objection rule is not merely a technicality, as this case illustrates. Had the correct objection been made, the proponent of the evidence would have had an opportunity to ask additional questions of the witness. Even a recalcitrant witness, when under proper instruction by a trial judge, might rise to the occasion and

Page 16

give truthful testimony. Because the correct objection was not made, the opportunity to further persist in an effort to lay the predicate was lost, and we are left to speculate about what might have occurred.

I also agree with my colleagues that the accuracy of the statement may be established through circumstantial proof. The recorded recollection statute requires a “show[ing]” that the memorandum is accurate. § 90.803(5), Fla. Stat. (2008). The linchpin of any hearsay exception is reliability. To tether the admissibility of recorded memoranda to the perfunctory attestation of accuracy by a testifying witness with memory problems is entirely formalistic and meaningless. Under this approach, the statement of a witness who recites the correct words is admissible, while the testimony of a witness who does not is excluded, without regard to the reliability of either. Just as a judge should have the authority to exclude a statement when the circumstances of its making suggest that it is unreliable, without regard the witness’s conclusory recital of magic, predicate words, so should a judge permit circumstantial proof to “show” that a statement is reliable. If the totality of the circumstances are sufficient to make a threshold “showing” of reliability, then the statement should be admitted.

Many, if not all, of the conflicting cases from our sister courts address situations where the witness was uncooperative. Although the dispositions in those cases turn on the lack of “showing” of accuracy, perhaps the better justification for excluding evidence of this sort is that the witness has no genuine lapse of memory but instead simply refuses to give truthful testimony.

Page 17

Here, insofar as the “showing” issue is concerned, the circumstantial indicia of reliability were sufficient to admit the statement and permit the jury to weigh it with other evidence.

——–