08-5622 ALISHA NICOLE VICE, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 08-5622

Case Date: 06/09/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ALISHA NICOLE VICE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed June 9, 2010.

CASE NO. 1D08-5622

An appeal from the Circuit Court for Santa Rosa County. R. V. Swanson, Judge. David Lee Sellers, Pensacola, for Appellant. Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J. On this direct appeal from convictions and sentences for aggravated child abuse and child neglect, Alisha Nicole Vice argues the trial court erred in allowing the state to introduce "similar fact evidence" on the purported authority of section 90.404(2)(a), Florida Statutes (2006). We reverse and remand for a new trial.

Dr. Alexa Canady, the pediatric neurosurgeon called to the Intensive Care Unit to treat then three-month-old J.C.H. upon his admission to the hospital on April 5, 2007, described the baby's injuries as the result of "classic non-accidental trauma," of a type formerly said to characterize Shaken Baby Syndrome. 1 The jury heard evidence that J.C.H. sustained a subdural hematoma along with hemorrhaging in the back of his eyes; that blood and bruising were found in the right frontal portion of his brain; and that the bleeding appeared to have occurred at different times: some apparently occurred no earlier than three days before he was brought in, while some could have originated any time between March 31 and April 5, 2007. By all accounts, during the period between March 31 and April 5, 2007, only three individuals were alone with the baby at any one time: Ms. Vice, the baby's mother; Chris H., 2 the baby's father; and a next door neighbor who was an

Dr. Canady testified that neurologists no longer use the term "Shaken Baby Syndrome" because it "implies a certain way in which the injury happens," which may be inaccurate in a given case. Neurologists believe, she said, that the same type of injury caused by shaking a baby can also be caused, for example, by forcefully striking a baby against some hard surface. 2 Mr. H.'s testimony suggested injuries may have occurred on April 1, 2007, when he left the baby unattended while he retrieved a grill. On April 1, Ms. Vice was at home with the baby while Mr. H. went to a party at the babysitter's house. Eventually, Mr. H. came home to watch the baby so Ms. Vice could attend the party. Still later Mr. H. "ran over" to the babysitter's house to retrieve his grill and, upon returning home, found J.C.H. "hanging half way out of the swing . . . , kind of stiff as a board, red as a beet . . . , like he was having some kind of seizure," he testified. 2

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occasional babysitter. On April 5, Chris H. picked up the baby from the babysitter around midday. Later, after Ms. Vice joined them at home and heard the sleeping baby inhale "raspy breaths," Ms. Vice and Chris H. took him to the hospital, where his injuries were diagnosed and treated. Alerted by the medical authorities to apparent child abuse, the police questioned all three caregivers: Mr. H.,3 the babysitter and Ms. Vice. After Ms. Vice voluntarily submitted to lengthy interrogation, she was charged--despite her consistent denials--with aggravated child abuse (and child neglect). 4 When the state filed notice of its intent to rely on evidence of other crimes, wrongs, or acts, as permitted under Williams v. State, 110 So. 2d 654 (Fla. 1959), to prove Ms. Vice was the perpetrator, she filed a motion in limine seeking to exclude such evidence. After an evidentiary hearing, the court denied the motion, stating conclusorily: Evidence of two prior shaking incidents allegedly perpetrated by this defendant upon an infant not the victim in the case w[as] presented. Those two incidents are relevant and probative insofar as issues of identity, opportunity, intent and absence of mistake or accident. At trial, Mr. H. testified that on March 26, 2007, while holding J.C.H., he slipped on the tile in the bathroom and "fell forward with him and his butt hit the edge of the tub." Dr. Canady testified that this type of fall would not cause a subdural hematoma "unless the baby strikes [its] head on something." 4 The child neglect charge alleged that Ms. Vice failed to inform medical personnel (when J.C.H was admitted to the hospital on April 5) of the "suspected seizure" on April 1 to which Mr. H. (who was also present at the hospital on April 5) testified at trial. 3
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Barber v. State, 781 So. 2d 425 ([Fla.] 5th DCA 2001); Washington v. State, 737 So. 2d 1208 ([Fla.] lst DCA 1999). Specifically, the state sought to prove that six years earlier Ms. Vice's thenhusband and then-mother-in-law witnessed her shaking--but not injuring--a child born of that marriage. In the course of what proved to be a four-day trial, the state put this evidence on to show that it was Ms. Vice--not Mr. H. (or the babysitter)-- who was responsible for J.C.H.'s injury. The Williams rule evidence consisted of testimony by Daniel Cooper (Ms. Vice's former husband) and Melissa Lindsey (Daniel Cooper's mother). Mr.

Cooper (who acknowledged he had been an abusive husband whose abuse contributed to the dissolution of his marriage to Ms. Vice) testified at trial that, when he arrived home from work one day in early 2001, Ms. Vice "had [the child] up in the air, like, in front of her face, about like this, and was shaking him rapidly, screaming at him to shut up while he was crying." Mr. Cooper did not report the incident to the authorities and testified that the child did not suffer any harm. Ms. Lindsey testified at trial that, one day in the spring of 2001 when she approached their apartment, she saw Ms. Vice through the curtains "sitting with [the infant] on the couch and she was shaking him violently" close to her face while yelling at him to shut up. Ms. Lindsey did not report the incident to the authorities at the time, and testified that the child did not require medical attention. 4

"A trial court's decision to admit collateral crime or Williams rule evidence is reviewed for an abuse of discretion. However, `[t]he admission of improper collateral crime evidence is presumed harmful error because of the danger that a jury will take the bad character or propensity to commit the crime as evidence of guilt of the crime charged.' For the harmless error rule to apply, the State must prove that there is ` "no reasonable possibility that the error contributed to the conviction." ' " Henrion v. State, 895 So. 2d 1213, 1216 (Fla. 2d DCA 2005) (citations omitted). "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."

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