5D08-3925 William Downs v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-3925

Case Date: 06/28/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

WILLIAM HERMAN DOWNS, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed July 2, 2010 Appeal from the Circuit Court for Orange County, Bob Wattles, Judge. Stephen Plotnick, of Law Offices of Victor O. Mead, Winter Park, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, for Appellee. Case No. 5D08-3925

ORFINGER, J. William Downs appeals his conviction of sexual battery on a child under twelve for which he received a life sentence. Because the trial court erred in allowing the State to introduce evidence of uncharged crimes, we reverse for a new trial. The State charged Downs with one count of capital sexual battery by digital penetration. The victim, L.B., who was twenty-three years of age at the time of trial, testified that one night when she was seven years old, a nude Downs entered her

bedroom, rolled down her underwear and digitally penetrated her. Over a defense objection, the trial court allowed L.B. to further testify that about two years later, Downs repeatedly came into the bathroom while she showered and touched her inappropriately, although these incidents did not involve penetration. Downs's counsel moved for a mistrial, arguing that this was evidence of inadmissible collateral crimes that was irrelevant to prove the single charge of digital penetration brought by the State. The trial court denied the motion for mistrial but instructed the jury to disregard the testimony concerning what may have occurred in the shower. Likewise, before the testimony was stricken, L.B.'s younger brother informed the jury that when he was younger, Downs told him that he would go in the bathroom while L.B. showered and masturbate. The jury found Downs guilty of capital sexual battery and he was

sentenced to life in prison. This appeal follows. The State argues that the evidence concerning the shower incidents was not offered as similar fact evidence under section 90.404(2)(b)1., Florida Statutes (2008), but instead was evidence that was inextricably intertwined with the crime charged. "[E]vidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams [v. State, 110 So. 2d 654 (Fla. 1959),] rule evidence. It is admissible under section 90.402 because `it is a relevant and inseparable part of the act which is in issue . . . .' " Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994) (quoting Charles W. Ehrhardt, Florida Evidence

Download 5D08-3925 William Downs v. State.pdf