5D06-1346 Hugo Fiore v. State

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-1346

Case Date: 10/22/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

HUGO J. FIORE, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed October 26, 2007 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge. James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D06-1346

PER CURIAM. Appellant challenges his convictions for lewd or lascivious conduct and two counts of capital sexual battery. Concluding that the trial court erroneously admitted

similar fact evidence, we reverse the judgment and sentence and remand this cause for a new trial. 1 The State filed a three-count information charging Appellant with lewd or lascivious conduct by a person eighteen or older and two counts of sexual battery upon a person under twelve. The information alleged that, between March 1, 1997, and September 30, 1997, Appellant fondled A.C.'s vagina, digitally penetrated her vagina and caused his mouth/tongue to unite with or penetrate her vagina. At the time of trial, A.C. was seventeen years old. She testified that when she was eight years old, her family lived next door to Appellant and his family. A.C. and her brother, Michael, became friends with Appellant's son. A.C.'s mother and Appellant's wife became friends also. It was not uncommon for A.C. and her brother to spend the night at Appellant's house. Sometimes A.C. would sleep in Appellant's son's room, other times she would sleep in the living room. A.C. testified that in the spring or summer when she was eight years old, she was asleep in Appellant's son's room when she awoke to discover Appellant rubbing her vagina on top of h er underwear. On a second occasion, she was again sleeping in the son's room when she awoke to discover Appellant digitally penetrating her vagina. She told him to stop and he did. On We have not overlooked Appellant's argument that the trial court made an improper comment on the evidence during closing argument. We conclude that this issue was not preserved for review. See Foster v. State , 778 So. 2d 906 (Fla. 2000) (finding claim procedurally barred because defendant failed to make contemporaneous objections to trial judge's comments or seek disqualification); Jones v. State , 612 So. 2d 1370, 1373 (Fla. 1992) ("It is error for a judge to comment on the evidence in the jury's presence. . . The contemporaneous objection rules applies [sic] to such comments, however, and an appellate court will not reverse in the absence of an objection unless the comment is so prejudicial as to be fundamental error."); Mathew v. State , 837 So. 2d 1167 (Fla. 4th DCA 2003) (holding because record devoid of contemporaneous objection, actions of trial court warrant reversal only if fundamental error). No fundamental error occurred on this point. 2
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a third occasion, when she was sleeping in the son's room, she awoke to discover her underwear down and Appellant touching her vagina with his hands and mouth. She started to cry. Appellant pulled her underwear up, turned on the light and started

reading her a book. Appellant's wife came into the room and asked what was wrong. Appellant told her that A.C. had had a nightmare. The similar fact evidence involved two other victims, K.C. and K.D. K.C. was ten years old at the time of trial, and eight or nine years old at the time of the incident involving Appellant. Appellant was a friend of K.C.'s mother's boyfriend. Appellant was at K.C.'s house late one night after going out with K.C.'s mother, her boyfriend and others. According to K.C., while others in the house were asleep, Appellant touched her on or near her "private part," under her skirt, while she was sitting on the living room couch. K.C. said that Appellant told her that he was going to make a woman out of her. When K.C. got away from Appellant, she went upstairs and told her mother what had happened. Her mother confronted Appellant, who initially admitted the offense. Later in the morning, her mother reported the incident to the police. K.D., Appellant's niece, was twenty-four years old at the time of trial. She

testified that when she was about sixteen, she went to stay with Appellant and his wife for half a summer. While home with Appellant and his toddler, K.D. was laying on the couch wearing silk pajama pants and a t-shirt. Appellant went over to talk to K.D., told her "I have to do it," and pulled her pants down. While trying to pull her pants up, K.D. was crying and telling Appellant to stop. Appellant stopped and K.D. went to the

bathroom. When she came out, Appellant took her to his bedroom, threw her on the bed, pulled her pants down and had intercourse with her. He ejaculated on her

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stomach. When Appellant's wife came home, she heard K.D. crying in the bedroom. She walked into the bedroom and saw Appellant holding K.D. on his lap. She told Appellant to let K.D. go and he complied. At a pretrial hearing, the trial court heard the witnesses' testimony. The court also heard legal argument on Appellant's motion to exclude the similar fact evidence and the State's motion to permit the evidence. In denying Appellant's motion and

granting the State's motion, the lower court relied on the legislature's expansion of the evidence admissible under section 90.404, Florida Statutes, in child molestation cases. During the jury trial, the State offered the testimony of K.C. and K.D. The State also offered testimony of K.C.'s mother, who corroborated, in part, K.C.'s testimony and Appellant's wife, who corroborated, in part, the testimony of K.D. and A.C. In the

State's closing argument, the prosecutor highlighted the testimony of the similar fact witnesses and argued that the allegations in those cases demonstrated Appellant's guilt by showing a pattern of conduct. The jury returned verdicts finding Appellant guilty of all three counts as charged in the information. The court designated Appellant a sexual predator and sentenced him to fifteen years on the lewd or lascivious count and life on the two sexual batteries with all sentences to run concurrently. Generally, 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."

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