Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-0291 _____________________________ ANTHONY LAMAR MCMILLIAN, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge. November 16, 2020 PER CURIAM. Anthony Lamar McMillian filed this direct appeal of his judgment and sentence, raising two issues. As to the first issue concerning the denial of his motion for a new trial and motion to continue sentencing, we affirm without discussion. As to the second issue concerning the alleged admission of collateral crimes evidence, we affirm for the reasons discussed below. The State charged McMillian with these offenses: • capital sexual battery on a person under the age of 12 years old by penetrating the victim’s vagina with his penis, which occurred between January 25, 2015, and January 24, 2016 (count I); • capital sexual battery on a person under the age of 12 years old by union of his mouth with the victim’s vagina, which occurred between January 25, 2015, and January 24, 2016 (count II); • three counts of sexual battery by a person in familial or custodial authority by penetrating the victim’s vagina with his penis “[o]n divers[e] dates of on or about January 25, 2016 and continuing through on or about March 23, 2017” (counts III-VII); and • three counts of showing obscene material to a minor “[o]n divers[e] dates of on or about January 25, 2015 and continuing through on or about March 23, 2017” (counts VIII-X). The date ranges alleged had significance in this case because the victim was born on January 25, 2004. Before trial, the State nolle prossed counts IV through VII and counts IX through X. McMillian filed a motion in limine to prevent the State from eliciting any testimony about prior bad acts or collateral crimes, including evidence related to uncharged sexual activity with the victim or offenses that had been nolle prossed. The State did not object, and the trial court granted the motion. During the jury trial, the State asserted in its opening statement that McMillian had molested the victim on an ongoing basis from the time she was 11 years old until she told her grandmother about the abuse a couple years later in March 2017. Consistent with these statements, the victim testified that during the relevant time period, McMillian had sex with her every other day and a couple of times a week, and this continued after they moved to their new house. The move to the new house happened when the victim was about 12 years old. When asked if he penetrated her vagina, she explained that “most of the time . . . it wouldn’t go in.” She testified that he was eventually successful in penetrating her vagina with his penis, and that he put his mouth on her vagina on several occasions. She also said that he had showed her pornography more than once. 2 McMillian objected to the victim’s testimony on the basis that it violated the motion in limine by referencing the offenses that had been nolle prossed and thereby converting the four charged sexual acts into an indefinite number of offenses. The State responded that the other offenses had been nolle prossed because they were duplicative and identical to the remaining counts. The State explained that in each count, it had not charged McMillian with specific acts but with multiple acts committed during a specific time period. The trial court overruled the objections, concluding that the testimony pertained to charged acts committed within the timeframe alleged by the State. At the conclusion of the trial, McMillian was convicted as charged on all offenses except for count II, for which he was convicted of the lesser-included offense of lewd and lascivious battery. He was sentenced to a total of life in prison. On appeal, McMillian argues that the State violated the ruling on the motion in limine during opening statements by referencing collateral crimes and by eliciting testimony from the victim about those collateral crimes. As McMillian did not object during the State’s opening statements, any error there is unpreserved, and reversal is only permitted if a fundamental error is shown. See Elliot v. State, 49 So. 3d 269, 270 (Fla. 1st DCA 2010). His objections to the victim’s testimony about the ongoing nature of the abuse sufficed to preserve this issue, and we review the trial court’s ruling on that matter for an abuse of discretion. See McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007). In the specific context of sexual abuse, when a child victim cannot specify the dates on which the abuse occurred, it is permissible for the State to charge in a single count that a specific type of sexual abuse occurred on multiple occasions during a range of dates. See Geiser v. State, 83 So. 3d 834, 835–36 (Fla. 4th DCA 2011); Whittingham v. State, 974 So. 2d 616, 618–19 (Fla. 4th DCA 2008). In allowing this approach, the supreme court attempted to reconcile “two conflicting public policy concerns”: (1) “the strong interest in eliminating the sexual abuse of children through vigorous enforcement of child-abuse laws . . . recogniz[ing] that young children often are unable to remember the specific dates on which they were abused”; and (2) “the strong interest of defendants 3 in being apprised of the charges against them such that they can prepare an adequate defense.” Dell’Orfano v. State, 616 So. 2d 33, 35 (Fla. 1993). In turn, when an information charges a sex crime against a minor that occurs over a “lengthy” period of time, a trial court must dismiss the information, “on a proper motion,” unless the State can “show clearly and convincingly that it has exhausted all reasonable means of narrowing the time frames further.” Id. If the State does make such a showing, “the burden then shifts to the defendant to show that the defense more likely than not will be prejudiced by the lengthy time frame.” Id. To buttress his argument that the State violated the in limine order, McMillian tries to characterize the information as charging “only four discrete acts,” and the victim’s testimony about multiple acts occurring over the course of a year or more as prior bad acts or collateral crimes (read: Williams rule evidence). This attempt fails because the information does not charge four discrete acts. The State charged McMillian with two types of sexual acts committed against the victim when she was 11 years old and one type of sexual act committed against the victim on multiple occasions when she was 12 years old. That is, the State charged sexual abuse of a child, occurring over a specified period of time, that was committed in different ways and when the victim was of different ages. McMillian did not challenge the information via a “proper motion,” as contemplated by Dell’Orfano. The testimony that McMillian challenges, then, described conduct that was “inseparable from” and “inextricably intertwined with the crime charged,” so it was not Williams rule evidence. Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994). The testimony was a “relevant and inseparable part of the act which is in issue,” and it was “necessary to admit the evidence to adequately describe” the criminal conduct at issue in the trial. Id. (citation and quotation omitted). The victim’s testimony about multiple incidents of sexual activity during the time periods charged in the information did not constitute improper collateral crimes evidence; instead, it was evidence that supported the charged offenses. And that evidence did not improperly pertain to nolle prossed offenses. The nolle prossed offenses were identical to and duplicative of the offenses for which McMillian was tried. 4 In sum, the trial court did not abuse its discretion in overruling McMillian’s objections to the victim’s testimony about the ongoing sexual abuse. Furthermore, the State’s opening statements concerning this anticipated testimony were proper and therefore do not constitute error, let alone fundamental error. AFFIRMED. RAY, C.J., and ROWE and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee. 5