       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 26, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2784
                         Lower Tribunal No. 10-30367
                             ________________


                               Ronald Cotton,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Bronwyn Miller
and Rodney Smith, Judges.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for appellee.


Before LAGOA, EMAS and FERNANDEZ, JJ.

      EMAS, J.
      Ronald Cotton appeals his conviction of, and sentence for, two counts of

lewd or lascivious conduct on a person twelve to sixteen years old. We reverse

because the trial court improperly admitted into evidence certain Williams1 rule

testimony regarding three separate and unrelated prior acts of sexual battery and

attempted sexual battery.

BACKGROUND

      On October 5, 2010, Cotton’s seventeen-year-old stepdaughter reported to

the police that Cotton had inappropriately touched and kissed her on several

occasions between 2006 and 2009.          The inappropriate contact began when

Cotton’s stepdaughter was approximately thirteen years old, and progressed from

long hugs to tongue kisses and groping.

      The State charged Cotton by Information with one count of lewd or

lascivious molestation by an adult on a child between twelve and sixteen years of

age, in violation of section 800.04(5)(c)2, Florida Statutes (2009); and two counts

of lewd or lascivious conduct by an adult on a child under 16 years of age, in

violation of section 800.04(6)b, Florida Statutes (2009).

      Count One (lewd or lascivious molestation) alleged that between March 1

and July 30, 2009, Cotton did unlawfully, intentionally and in a lewd or lascivious


1Williams v. State, 110 So. 2d 654 (Fla. 1959), later codified in section 90.404,
Florida Statutes.


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manner, touch the breasts, genitals, genital area, or buttocks of his stepdaughter (or

the clothing covering those areas).

      Counts Two and Three (lewd or lascivious conduct) alleged that on different

dates covering the time period between August 1, 2006 and June 30, 2008, Cotton

did unlawfully and intentionally touch his stepdaughter in a lewd or lascivious

manner.

      During the pendency of the case, the State filed a Williams rule notice

pursuant to section 90.404(2)(b)-(d), indicating its intent to introduce at trial the

testimony of Cotton’s two adult daughters. During the hearing on the Williams

rule evidence, Cotton’s adult daughters each testified that Cotton’s inappropriate

contact with them started when they were thirteen or fourteen years old,2 beginning

with inappropriate hugs and progressing to tongue kisses and fondling. Both

daughters’ testimony, however, also included detailed allegations of separate

incidents of sexual battery committed by Cotton upon each of them. One of the

daughters also testified that, on a separate occasion, Cotton attempted to commit

another sexual battery upon her.

      Following the hearing, the trial court expressed serious concern about the

unduly prejudicial nature of the testimony regarding the sexual batteries, and

indicated that it might limit the collateral offense evidence to the lewd and

2 The prior acts took place approximately fifteen to eighteen years before trial in
the instant case.

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lascivious acts while excluding testimony regarding the alleged sexual batteries.

Nevertheless, at trial, and over Cotton’s objection, the court admitted into evidence

the entirety of the Williams rule testimony, which included each adult daughters’

graphic description of the sexual battery (and an attempted sexual battery)

committed upon them. The jury subsequently found Cotton guilty of two counts of

lewd or lascivious conduct.3

ANALYSIS

        Cotton contends that the trial court abused its discretion in allowing his adult

daughters to testify about the prior sexual batteries (and attempted sexual battery)

allegedly committed by Cotton. We agree.

        Generally, evidence of a defendant’s prior collateral offenses are

inadmissible to prove bad character or propensity to commit crime. § 90.404(2)(a),

Fla. Stat. (2013). However, where the prior bad acts are relevant to prove a

material fact in issue and not for the purpose of establishing propensity or bad

character, such evidence may be admissible if the trial court ensures that the

probative value of the evidence is not substantially outweighed by the danger of

unfair prejudice, confusion of issues, misleading the jury, or needless presentation

of cumulative evidence. §§ 90.403, 90.404(2)(a), Fla. Stat. (2013).




3   The jury found Cotton not guilty of lewd or lascivious molestation.

                                            4
      In 2001, the Florida Legislature enacted section 90.404(2)(b), which

addresses the admissibility of collateral offenses in cases in which a defendant is

charged with child molestation. That subsection provides in pertinent part:

      2) Other crimes, wrongs, or acts.--

      ...

      (b) 1. In 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.

      2. For the purposes of this paragraph, the term “child molestation”
      means conduct proscribed by s. 787.025(2)(c), s. 787.06(3)(g), former
      s. 787.06(3)(h), s. 794.011, excluding s. 794.011(10), s. 794.05,
      former s. 796.03, former s. 796.035, s. 800.04, s. 827.071, s.
      847.0135(5), s. 847.0145, or s. 985.701(1) when committed against a
      person 16 years of age or younger.

      While section 90.404(2)(b) permits the admission of other acts of child

molestation where the defendant is charged with a crime involving child

molestation, it limits consideration of such evidence to that which is relevant.

      As the Florida Supreme Court clarified in McLean v. State, 934 So. 2d 1248

(Fla. 2006), collateral offense evidence admitted pursuant to section 90.404(2)(b)

must still be relevant to a material issue as required by section 90.402, and is also

subject to the balancing test provided in section 90.403:

      Accordingly, the similarity of the prior act and the charged offense
      remains part of a court's analysis in determining whether to admit the
      evidence in two ways. First, the less similar the prior acts, the less


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      relevant they are to the charged crime, and therefore the less likely
      they will be admissible. Second, the less similar the prior acts, the
      more likely that the probative value of this evidence will be
      “substantially outweighed by the danger of unfair prejudice, confusion
      of issues, misleading the jury, or needless presentation of cumulative
      evidence.” § 90.403.

Id. at 1259.

      The Court elaborated on the trial court’s critical role in conducting this

threshold analysis:

      The similarity of the collateral act of molestation and charged offense
      is a critical consideration for the trial court in conducting an
      appropriate weighing under section 90.403. The trial courts are
      gatekeepers in ensuring that evidence of prior acts of child
      molestation is not so prejudicial that the defendant is convicted based
      on the prior sexual misconduct.
Id.

      Finally, the McLean court provided additional guidance to trial courts tasked

with determining whether to admit evidence of prior acts of child molestation:

      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 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


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      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. Further, in accord with our precedent,
      the trial court must guard against allowing the collateral-crime
      testimony to become a feature of the trial. Finally, 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. at 1262.

      While it is true that a trial court has broad discretion regarding the

admissibility of evidence, such discretion is not unfettered.       In applying the

balancing test set forth in section 90.403, in conjunction with section 90.404(2)(b),

the admission of the adult daughters’ testimony describing the prior sexual

batteries offered little or no probative value, and any such minimal probative value

was substantially outweighed by the testimony’s undue prejudice.

      The State’s very own argument in support of admitting the other collateral

offenses (i.e., the prior lewd or lascivious acts) illustrates the relative lack of

probative value for the prior sexual batteries. The State argued to the trial court

that Cotton’s prior lewd or lascivious acts upon his daughters were relevant and

probative in establishing Cotton’s intent, common scheme and plan, and modus

operandi. These prior bad acts dovetailed with the State’s theory at trial that

Cotton used his familial relationship with his stepdaughter, initiating his unlawful

conduct when his stepdaughter was thirteen years old. Cotton began with simple

hugs that escalated to longer and inappropriate hugs, then to kisses and



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inappropriate kissing, and then to inappropriate touching, fondling and molestation

of his stepdaughter. These acts all took place in the home where Cotton and the

stepdaughter lived. On one occasion, late at night in the home, Cotton climbed

into his stepdaughter’s bed and fondled her over her clothing.

      In similar fashion, the admissible Williams rule evidence established that

Cotton, using his familial relationship, began engaging in lewd or lascivious acts

upon his two daughters when they were approximately thirteen years old (the same

age as the stepdaughter); Cotton’s acts upon his daughters progressed and escalated

over time and in a manner that was similar to the instant allegations (beginning

with hugs, and progressing to inappropriate hugs, tongue kisses, inappropriate

touching, fondling and molestation); and Cotton committed these lewd or

lascivious acts upon his two daughters in manner and under circumstances that

were similar to the instant allegations (in the home, late at night, during which

Cotton would climb into the daughter’s bed and fondle her over her clothing; on

other occasions he would come into the daughter’s bedroom, late at night, take her

from her bed and into a separate bedroom for the same purpose).

      The trial court properly determined that these prior lewd or lascivious acts

committed by Cotton upon his two daughters were relevant to establish a modus

operandi, common scheme or plan, and intent, given the similarities between the

prior acts and Cotton’s acts allegedly committed on his stepdaughter.          See



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Williams v. State, 621 So. 2d 413, 415 (Fla. 1993)(observing that “[s]imilar fact

evidence has been held admissible in sexual battery cases when the evidence was

found to have a logical relationship to some material aspect of the charged crime

beyond the character of the defendant or his propensity to force himself on

women.”). Each daughter’s testimony regarding Cotton’s prior lewd or lascivious

acts further served to corroborate the stepdaughter’s testimony regarding the

timing, circumstances and manner in which Cotton committed his lewd or

lascivious acts upon her. We therefore find no error in the trial court’s admission

of the two daughters’ testimony regarding Cotton’s prior lewd or lascivious acts

committed upon them.

      However, we are compelled to conclude that the trial court abused its

discretion by allowing the State to present the testimony of the two daughters

regarding the prior acts of sexual battery (and attempted sexual battery) committed

upon them by Cotton. Unlike the properly-admitted prior lewd or lascivious acts,

the sexual batteries were not similar to charged offenses in their manner or

circumstances.4    To the extent this evidence was probative at all, it was only

4 The similarities were limited to the daughters’ ages and the existence of a familial
relationship. The testimony regarding the sexual batteries otherwise stood in stark
contrast in both manner and circumstances to the instant charges: One of the
alleged sexual batteries took place in Cotton’s car on a desolate street near the
woods. The other alleged sexual battery took place in a vacant duplex with nothing
inside but a mattress on the floor. Additionally, one of the daughters testified that
Cotton attempted to commit another sexual battery upon her when he drove her to
an area near the woods and was going to rape her until she told him that she was

                                          9
cumulatively so, failing to offer any further corroborative force beyond that

already provided by the daughters’ testimony regarding the prior lewd or lascivious

acts.    As the supreme court observed in McLean, 934 So. 2d at 1259, “the less

similar a collateral offense to the charged offense, the less relevant and the more

likely it is that the probative value is ‘substantially outweighed by the danger of

unfair prejudice, confusion of issues, misleading the jury, or needless presentation

of cumulative evidence. § 90.403.’”

        Each daughter’s testimony regarding the sexual batteries was graphic and

detailed, and its prejudicial impact both substantial and real. The testimony by

each of the daughters regarding Cotton’s prior sexual battery (and an attempted

sexual battery) was at best nominally probative of the material facts in issue at

trial, especially in light of and compared to the daughters’ admissible testimony

regarding prior lewd or lascivious acts committed upon them by Cotton. The

exclusion of the collateral sexual battery offenses would not have presented any

logistical challenges to the trial court, as these offenses were not inextricably

intertwined with the collateral lewd or lascivious acts to which the daughters had

already testified.

        Given the fact that the jury had already heard testimony from the two

daughters regarding Cotton’s prior lewd or lascivious acts committed upon them,


menstruating. The daughter testified that Cotton made her pull down her pants and
show him her sanitary napkin.

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the introduction of the additional testimony regarding the prior sexual batteries was

needlessly cumulative. Any probative value was substantially outweighed by the

danger of unfair prejudice, tending to establish Cotton’s bad character or

propensity, and thereby significantly and unnecessarily increasing the risk that

Cotton would be convicted based upon his commission of these collateral crimes.5

McLean, 934 So. 2d at 1259; Corson v. State, 9 So. 3d 765 (Fla. 2d DCA 2009).

The trial court should have excluded this testimony and erred in failing to do so.

      CONCLUSION

      In light of the already-properly-admitted collateral offenses of lewd or

lascivious conduct and their similarity to the crimes charged, and given the nature

of the testimony regarding the sexual batteries, its lack of probative value and the

substantial danger of unfair prejudice, we conclude that the trial court abused its

discretion in admitting this evidence. The State has failed to meet its burden of

5 The substantial danger of unfair prejudice in permitting the jury to consider this
evidence was inescapable: Cotton was charged with acts of lewd or lascivious
conduct and molestation, but was not charged with sexual battery or attempted
sexual battery. The jury heard each of Cotton’s two adult daughters testify that
Cotton previously committed lewd or lascivious acts upon them (at a time, in a
manner, and under circumstances similar to his alleged acts upon his stepdaughter).
The jury then heard each daughter testify that beyond these lewd or lascivious acts,
Cotton committed a sexual battery upon each of them (as well as an attempted
sexual battery). Given the State’s theory of an escalating pattern of conduct by
Cotton (engaged in previously with his daughters and in similar fashion with his
stepdaughter), it was more than reasonable for jurors to draw the inference that if
they did not convict Cotton in this case, he would eventually commit a sexual
battery upon his stepdaughter as well.


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establishing beyond a reasonable doubt that the error did not contribute to the

verdict. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

      We reverse the judgment and sentence and remand for a new trial on the two

counts of lewd or lascivious conduct.




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