Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2855 _____________________________ MICHAEL PAUL NEWMAN, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Santa Rosa County. Darlene F. Dickey, Judge. July 13, 2020 PER CURIAM. Appellant, Michael Paul Newman, appeals his conviction for lewd or lascivious molestation of a child less than twelve years of age and raises three issues. We affirm as to the first two issues without discussion and write only to address the third issue, which challenges the trial court’s admission of collateral crime evidence. For the reasons that follow, we find Appellant’s argument to be without merit. Accordingly, we affirm his conviction and sentence. BACKGROUND Appellant was charged with lewd or lascivious molestation of his eight-year-old adopted daughter. At trial, held in 2019, the State presented evidence that in October 2015, when the victim was eight years old and they were living in Arkansas, Appellant took her and one of her brothers on a trip to Florida to sell fishing poles. The three of them stayed at a hotel in Milton for three days and shared a room with two beds. The victim testified that on the first night, she saw Appellant get into his bed naked, but they followed the agreed-upon sleeping arrangement of them sleeping in separate beds and the brother sleeping on the floor. On the second night, Appellant went to bed naked, and he told the victim to get into his bed and let her brother sleep in the other bed. The victim fell asleep in Appellant’s bed, wearing a nightgown, and was awakened by him rubbing her vagina over her underwear with his hands and repeatedly saying the word “sexy.” She recalled, “I was shocked and I thought that he was dreaming . . . . Because I’ve never known anything -- for someone to do that, and I was thinking of reasons why.” She got out of bed and cried herself to sleep on the floor. On the third night, Appellant again went to bed naked, directed the victim to sleep with him, and then rubbed her vagina while saying “sexy.” She testified that Appellant woke up when the police knocked on the door. 1 That same night, he grabbed her hand and forced her to touch his penis as he kept saying “sexy.” Prior to trial, the State filed a notice that it intended to introduce similar fact evidence of other crimes, wrongs, or acts Appellant had committed against the victim’s sister, another one of his adopted children. 2 At the Williams 3 rule hearing, the victim’s sister testified that she had just turned seventeen years old. When she was around twelve or thirteen years old, and they lived in Arkansas, Appellant woke her up during the night while everyone was sleeping and showed her how to use a “purple thing that would vibrate”; in the process, he touched and penetrated her 1 The police knocked on Appellant’s hotel room door in the middle of the night because his car had been broken into in the hotel’s parking lot. 2 Appellant had married the girls’ mother and adopted them, and they considered him their father. 3 Williams v. State, 110 So. 2d 654 (Fla. 1959). 2 vagina with his fingers because she “wasn’t doing it right.” He did those things for several nights and then never again. During the incidents, her siblings were sleeping in close proximity to her, Appellant was wearing shorts and no shirt, and he did not make her touch his private areas. The State sought to introduce the testimony of the victim’s sister pursuant to section 90.404(2)(b), Florida Statutes, to corroborate the victim’s testimony and to rebut any defense claim of an accident, mistake, or that Appellant did the charged acts in his sleep, without knowledge of what he was doing. The defense objected on the ground that the evidence did not have the requisite substantial similarity and was overly prejudicial. The trial court found that the State established by clear and convincing evidence that the collateral crime occurred, the evidence was relevant to prove absence of mistake or accident and opportunity, there was sufficient similarity between the prior acts and the charged acts, the probative value of the evidence substantially outweighed any danger of unfair prejudice, the evidence would not confuse or mislead the jury, and the evidence was not needlessly cumulative. The trial court noted that the girls were close in age at the time of the acts, both acts were committed at nighttime in bed, while everyone else was asleep, both acts consisted of Appellant touching the girls’ vaginas with his fingers, and both acts occurred on more than one occasion. Accordingly, the trial court admitted the evidence. After the jury was given a limiting instruction, the victim’s sister testified at trial as she had during the pre-trial hearing about Appellant showing her how to use a vibrator and touching her vagina in the process over the course of several nights when she was about twelve or thirteen years old. The jury returned a verdict finding Appellant guilty as charged. The trial court adjudicated him guilty and sentenced him to life imprisonment. This appeal followed. ANALYSIS We review the admission of collateral crime evidence for an abuse of discretion. Whisby v. State, 262 So. 3d 228, 231 (Fla. 1st DCA 2018). Section 90.404 governs the admissibility of evidence 3 of other crimes, wrongs, or acts and provides in relevant part that “[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.” § 90.404(2)(b)1., Fla. Stat. (2015). Prior to admitting similar fact evidence under section 90.404(2)(b), the trial court must determine whether the State proved the prior act by clear and convincing evidence, whether the prior act is sufficiently similar to be relevant, and whether the probative value of the collateral crimes evidence is substantially outweighed by the danger of unfair prejudice under the balancing test of section 90.403, Florida Statutes. McLean v. State, 934 So. 2d 1248, 1259–61 (Fla. 2006) (explaining that the less similar the prior act, the less relevant it is and the more likely it is that its probative value will be substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of evidence). Evidence of a collateral act of child molestation is relevant to corroborate the victim’s testimony and show that the defendant had a propensity for the criminal conduct. Id. at 1257–58; see also Pitts v. State, 263 So. 3d 834, 839 (Fla. 1st DCA 2019) (same); Whisby, 262 So. 3d at 232 (same). The Florida Supreme Court explained the weighing required by section 90.403 as follows: 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. Factors other than the potential for unfair prejudice are also pertinent in a section 90.403 analysis. The trial 4 court must determine whether the evidence of the prior acts will confuse or mislead jurors by distracting them from the central issues of the trial. Also necessary is an assessment whether the evidence is needlessly cumulative of other evidence bearing on the victim’s credibility, the purpose for which this evidence may be introduced. McLean, 934 So. 2d at 1262. The supreme court added that “the trial court must guard against allowing the collateral-crime testimony to become a feature of the trial,” and “if requested, the trial court shall give an appropriate cautionary instruction both at the time the evidence is presented and in its final charge to the jury.” Id. (affirming the trial court’s admission of prior bad acts the appellant committed against a fourteen-year-old boy over a decade before the charged offenses against the eight-year-old male victim because the trial court followed the requirements of section 90.403 and limited the evidence, the evidence was not made a feature of the trial, and the court gave cautionary instructions to the jury); see also Pitts, 263 So. 3d at 839 (explaining that when the defendant is charged with child molestation, evidence of other acts of child molestation committed by him may be admitted for its bearing on any relevant matter, including to corroborate the victim’s testimony by showing his propensity for the criminal conduct, but the trial court is required to first consider the similarity of the collateral crime to the charged offense as part of the weighing required under section 90.403). Significantly, a relaxed standard of admissibility applies when the charged and collateral offenses occurred in a familial context. McLean, 934 So. 2d at 1256–58. The strict similarity requirement is relaxed in the familial context, “but there must be some similarity other than the fact that both offenses occurred in the family.” Id.; see also Donton v. State, 1 So. 3d 1092, 1095 (Fla. 1st DCA 2009) (stating that a relaxed standard of admissibility applies to collateral crime evidence when the perpetrator is a family member or close family friend or is someone else in a familial relationship or setting with the victim). 5 In Donton, the appellant was convicted of sexual battery on a victim with a mental defect. 1 So. 3d at 1093. The State alleged that the appellant committed the crime against a male victim with a mental defect twelve years of age or older by penile union with, or penetration of, the victim’s anus while they were in the shower area of a juvenile detention center. Id. Over the defense’s objection, the trial court admitted evidence of the appellant’s molestation of a three-year-old girl in his grandmother’s house the year prior. Id. at 1094–95 (noting that the collateral crime evidence was used to corroborate the testimony about the charged crime). “Acknowledging the obvious anatomical differences between the two victims, the [trial] court concluded that, in a broader sense, the prior act and the charged act are similar, in that Appellant acted with ‘an authoritative familiarity’ over both victims, whom he already knew and exploited when given the opportunity to be alone with them.” Id. at 1097–98. We affirmed, finding that the trial court correctly applied the law and did not abuse its discretion in admitting the evidence. Id. at 1098; see also Stubbs v. State, 275 So. 3d 631, 632–36 (Fla. 4th DCA 2019) (affirming the appellant’s conviction for unlawful sexual activity with a minor upon finding that the trial court properly admitted as similar fact evidence his experiences with two other girls, and explaining that the similarities between the charged and collateral offenses included that all three girls were teenagers between the ages of sixteen and nineteen, all of them were members of the church where the appellant was the pastor, he had union with or penetrated the vagina of each girl, and, most significantly, he exploited his role as a trusted religious figure in each girl’s life to gain trust and access and to nullify their objections). Here, in deciding whether to admit the prior acts of child molestation under section 90.404(2)(b), the trial court followed the requirements of McLean. Appellant does not dispute that, nor does he challenge the trial court’s finding that the State established the collateral crime by clear and convincing evidence. We agree with the trial court that the evidence was relevant to show absence of mistake or accident, to the extent Appellant would claim that he acted without the requisite intent in touching the victim because he was asleep, in that it showed that he possessed and acted on urges to engage in inappropriate sexual conduct with young girls. Regardless, the collateral crime evidence was relevant to 6 corroborate the victim’s testimony and show Appellant’s propensity for the criminal conduct. See McLean, 934 So. 2d at 1257–58; Pitts, 263 So. 3d at 839; Whisby, 262 So. 3d at 232. Appellant’s primary argument on appeal is that the admission of the collateral crime evidence was erroneous because the evidence was far more prejudicial than probative. He asserts that there were substantial differences between the charged acts and collateral acts. We disagree. Competent, substantial evidence supports the trial court’s finding that there was sufficient similarity between the charged and collateral acts. Specifically, both children were prepubescent girls at the time of the molestation; Appellant was the adoptive father of both girls and they considered him their dad; he molested both girls at night, while other family members were sleeping in close proximity; he touched the girls’ vaginas with his fingers; and the molestation of each girl was repeated over the course of a few days and then never again. The record indicates that the acts occurred within a year or so of each other. Although there were some dissimilarities between the acts with regard to the precise age of the children and the location and manner of the molestations, common sense and the case law discussed above indicate that such dissimilarities can be expected in these types of cases and every detail need not be identical. In fact, as we discussed above, in cases such as this, where the acts occurred in a familial context, the similarity requirement is relaxed. See McLean, 934 So. 2d at 1255–58; Donton, 1 So. 3d at 1095. The collateral crime evidence did not become a feature of the trial given that the victim’s sister was the only witness who testified about it and the State limited its argument in that regard to explain that the evidence corroborated the victim’s testimony and showed that Appellant was not dreaming and his actions were intentional. Additionally, the trial court read the limiting instructions to the jury. In light of the foregoing, the probative value of the collateral crimes evidence was not substantially outweighed by the danger of unfair prejudice. For the foregoing reasons, the trial court did not abuse its discretion in admitting the collateral crime evidence. 7 CONCLUSION Therefore, we affirm Appellant’s conviction and sentence. AFFIRMED. LEWIS and BILBREY, JJ., concur; B.L. THOMAS, J., concurs in result only. _____________________________ 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 John Stevenson, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 8