       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 13, 2019.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                                No. 3D16-169
                          Lower Tribunal No. 10-4694
                             ________________

                                Jesus Mendez,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



    An appeal from the Circuit Court for Miami-Dade County, Jorge Rodriguez-
Chomat, Judge.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.

     Ashley Moody, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellee.


Before SALTER and LOGUE, JJ., and SUAREZ, Senior Judge.

      SUAREZ, Senior Judge.

      Jesus Mendez appeals from his convictions for lewd or lascivious

molestation of a minor under the age of twelve and for sexual battery on a minor
under the age of twelve. Mendez challenges the sufficiency of the evidence with

respect to the molestation conviction and also argues that the trial court improperly

admitted evidence of an uncharged crime, resulting in an unfair trial. We agree

and vacate the molestation conviction, reverse the battery conviction, and remand

for a new trial.

                                  BACKGROUND

      Mendez and M.H., his niece, lived in the same two-bedroom house. Mendez

lived there with his then-girlfriend and their two children. Mendez’s brother slept

in the living room with his wife and daughter, M.H. On February 12, 2010, M.H.,

who was eight, told her teacher that she was scared to go home because her uncle

(Mendez) had touched her privates.           M.H. repeated the allegation to school

administrators and told them that her uncle had told her to keep what happened a

secret or he would kill her. The school immediately contacted the authorities.

That same day, Detective Paul Espana went to the house, where he took

photographs and collected a comforter from Mendez’s room. Detective Espana

then had M.H. transported to Kristi House for a physical examination.

      At Kristi House, Doctor Walter Lambert interviewed M.H. before the

physical examination. Doctor Lambert testified that M.H. told him the following

during the interview: “Yesterday my uncle, Jesus, touched me in my private . . .

with his finger. I was wearing jeans and butterfly panties. It was under my clothes,

under my panties . . . at nighttime in his
                                             2
room . . . .” M.H. further stated that Mendez threatened to punch her if she told

anyone and that her mother did not believe her at first. With respect to the

physical examination, Doctor Lambert testified that M.H. had a “normal

examination” with no injuries, which could be consistent with M.H.’s allegations

but also consistent with the allegations being false. Doctor Lambert collected

M.H.’s underwear but did not take DNA swabs because M.H. told him that she had

bathed.

      Later that night, police took Mendez into custody. At trial, Mendez testified

that he arrived at the police station around midnight, and the police interrogated

him from 2:00 AM to 6:00 AM. According to Mendez’s testimony, he told the

police that there was one past incident where he had accidentally touched M.H.

“where she wasn’t supposed to be touched” while he picked her up. He further

testified that he never touched M.H. under her clothes. Detective Espana testified

as a rebuttal witness.   According to Espana, Mendez denied touching M.H.

throughout the interrogation, but eventually admitted to accidentally touching

M.H., on two occasions, underneath her clothing while trying to remove her from

her bed.

      On February 18, 2010, Pam Garman conducted a forensic interview of M.H.

The interview was recorded and admitted into evidence during Garman’s

testimony. According to the Interview Report, “MH was asked what happened and

she said, ‘once upon a time.’ She was
                                        3
then advised to tell me the truth and not a story.” M.H. said the incident had

occurred in her godfather’s room and then corrected herself and said she meant her

uncle Mendez’s room. M.H. told Garman that Mendez placed his finger inside her

privates and that she began to bleed and saw a drop of blood on her underwear.1

M.H. further stated that she told her mother what happened right after the incident

and that her mother did not believe her.2 M.H. also told Garman that Mendez had

touched her on the outside of her clothes the day before the incident, in the living

room.

        M.H.’s out-of-court statements were admitted under section 90.803(23),

Florida Statutes (2018), which creates a hearsay exception for statements made by

child victims. M.H. also testified at trial.3 She stated that Mendez had touched her

under her clothing, inside her front private part, and that the next morning she had

blood on her underwear. She further testified that Mendez told her that if she told

anyone he would kill her mother but that he did not directly threaten her. M.H.

also denied reporting the abuse to her teacher the next day.

        During her trial testimony, M.H. did not recall the incident she mentioned

during her forensic interview where Mendez had touched her in the living room


1 At trial, Cozette Alvarez, a forensic biologist at the Miami-Dade crime lab,
testified that the underwear lab results came back negative for the presence of
blood.
2 At trial, the mother denied that M.H. reported any abuse to her at home; she

testified that she did not find out until the school notified her.
3 Trial commenced on February 21, 2012, nearly two years after the incidents.

                                          4
outside of her clothes. However, when asked if she remembered any other times

she had been touched, she described a prior, uncharged incident where Mendez

tried to touch her in exchange for candy:

               [THE STATE: M.H.], do you remember any other times
               that Jesus touched you?

               [M.H.]: Yes.

               [STATE]: What do you remember?

               [M.H.]: One night [in] my stepfather’s sister’s room, the
               kids were sleeping on the bottom bed and [in] the living
               room, everybody was like watching the game. They were
               like screaming . . . because their team was winning and I
               had to sleep in Jesus’ room . . . . Jesus had like candy on
               top of a thing and he gave me some, I ate it and then . . . I
               asked can I get some more. He was like first let me touch
               there. And I’m like no. And he’s like if you want some
               more candy let me touch you. And I was like no, I don’t
               want no more candy and I [went] to bed.

               [THE STATE]: Did he touch you?

               [M.H.]: No, I didn’t let him.

        The State referenced this claim in closing argument to argue that Mendez

had been grooming M.H. for abuse:

               [STATE]: Where does he get off, grooming behavior, the
               candy, being gross? It is gross. It’s called grooming your
               victim: you let me touch you, I will give you candy.

        Mendez was ultimately convicted of one count of sexual battery and one

count of lewd and lascivious molestation.4 He was sentenced to life in prison for

4   Mendez was initially convicted of two counts of lewd and lascivious molestation,
                                               5
the sexual battery, with a concurrent twenty-five year sentence for the molestation.

This belated appeal follows.

                                    ANALYSIS

      Mendez raises two arguments on appeal. First, he argues that there was

insufficient evidence to support the molestation conviction because M.H.’s

testimony at trial was inconsistent with her out-of-court statements, and there was

no other proper corroborating evidence. Second, Mendez argues that improperly

introduced evidence of an uncharged collateral crime deprived him of a fair trial.

We address each argument in turn.

I. Sufficiency of the Molestation Conviction

      The molestation charge was based on M.H.’s out-of-court statement, during

the forensic interview, that Mendez had inappropriately touched her on the outside

of her clothing in the living room the day before the more serious sexual battery

incident in the bedroom. At trial, however, M.H. repeatedly denied remembering

the incident in the living room.       On appeal, Mendez argues that M.H.’s

uncorroborated out-of-court statements were insufficient to sustain his conviction

for lewd or lascivious molestation. We agree.

      Because Mendez’s challenge to the sufficiency of the State’s case was not

preserved below, we review this issue for fundamental error. F.B. v. State, 852 So.


but because one of the molestation counts pertained to the same act as the sexual
battery, that count was vacated.
                                         6
2d 226, 229 (Fla. 2003).       Fundamental error occurs “when the evidence is

insufficient to show that a crime was committed at all.” Id. at 230. Because

M.H.’s out-of-court statements with respect to the molestation charge were

inconsistent with her trial testimony and not supported by other proper

corroborating evidence, we find that the evidence was insufficient to show that the

molestation occurred at all.

      “[T]he Due Process Clause protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” Beber v. State, 887 So. 2d 1248, 1251 (Fla.

2004) (quoting In re Winship, 397 U.S. 358, 364 (1970)). The information stated

that Mendez “did unlawfully and intentionally touch the breasts, genitals, genital

area, or buttocks, or the clothing covering the breasts, genitals, genital area, or

buttocks, of M.H. (A MINOR), a person less than 12 years of age in a lewd or

lascivious manner, in violation of 800.04(5)(b), Fla. Stat . . . .” The only evidence

that this occurred was from M.H.’s out-of-court statement during the forensic

interview, which was admitted under the child victim hearsay exception, section

90.803(23), Florida Statutes (2018).

      At trial, M.H. stated multiple times on direct and cross-examination that she

did not recall the molestation incident she had described during her forensic

interview:

             [DIRECT EXAMINATION]
                                         7
             Q. Okay. And I just want to ask you one last question,
             [M.H.]: Do you remember any other times that Jesus
             touched you?
             A. No.
             ....
             Q. [M.H.], I want to ask you, I know I just said one last
             question. I lied . . . . Do you remember if Jesus touched
             you when you were sleeping in the living room?
             A. No.
             Q. You don't remember that incident?
             A. No.
             ....
             [CROSS-EXAMINATION]
             Q. All right. So, you don't remember, then, what you said
             to the lady at the Christie House, do you?
             A. No.
             Q. Do you recall telling the lady at the Christie House
             that Jesus touched you the first time in the living room,
             do you remember telling that lady that that happened in
             the living room?
             A. No.

      In Baugh v. State, 961 So. 2d 198, 204 (Fla. 2007), a case also involving

“the admission of pretrial statements as substantive evidence under the child victim

hearsay exception[,]” the Florida Supreme Court repeated the established principle

that “a prior inconsistent statement standing alone is insufficient as a matter of law

to prove guilt beyond a reasonable doubt.”5 (quoting State v. Green, 667 So. 2d

5 The State suggests that this rule is inapplicable because M.H.’s out-of-court
statements were admitted under the child hearsay exception, section 90.803(23),
and not as prior inconsistent statements under section 90.801(2)(a). Although the
rule set forth in Baugh originated from State v. Moore, 485 So. 2d 1279 (Fla.
1986), which only addressed the sufficiency of prior inconsistent statements,
Moore’s holding has been expanded to address the sufficiency of evidence
admitted under the child hearsay exception. See State v. Green, 667 So. 2d 756,
760 (Fla. 1995) (“We reiterate that conclusion today, finding that our holding
in Moore . . . applies regardless of whether the prior inconsistent statement is
                                          8
756, 760 (Fla. 1995)); see also Beber v. State, 887 So. 2d 1248, 1252 (Fla. 2004).

Here, M.H.’s statements during the forensic interview, which formed the basis for

the molestation charge, were inconsistent with her trial testimony, where she was

asked multiple times about the incident, and she repeatedly denied remembering

anything about it.

      The State argues that M.H.’s trial testimony was consistent with her forensic

interview because she testified that she was touched twice—once over her clothing

and the second time under her clothing. However, the State’s record citations do

not support this assertion. The State first directs us to the trial testimony of Ms.

Garman, the forensic interviewer. But this is simply Ms. Garman’s recapitulation

of M.H.’s out-of-court forensic interview. Next, the State points us to testimony

that directly contradicts its position, where M.H. only addressed the sexual battery

incident and denied being touched over her clothes:

             Q. Did Jesus touch you on top of your pants and panties?
             A. No.
             Q. Did he touch you underneath your pants and panties?
             A. Yes.

Finally, the State relies on a leading question asked during cross-examination,

where defense counsel summarized M.H.’s allegations and mentioned two separate

touching incidents. Based on our careful review of the record, we cannot find that



admitted under section 90.801(2)(a) or section 90.803(23).”). Indeed, Baugh itself
deals with statements admitted under the child hearsay exception.
                                         9
M.H.’s trial testimony was consistent with her forensic interview, especially in

light of M.H.’s repeated and consistent denials that she remembered the incident.

      Although M.H.’s out-of-court statements, standing alone, are insufficient to

prove Mendez’s guilt with respect to the molestation charge, statements admitted

under the child victim hearsay exception may be used “as substantive evidence

when other proper corroborating evidence is submitted.” Green, 667 So. 2d at 761.

Here, the State relies on Mendez’s statements to police that he accidentally touched

M.H. “where she wasn’t supposed to be touched” while picking her up. However,

this evidence is insufficient to corroborate M.H.’s out-of-court statements. See

Span v. State, 732 So. 2d 1196, 1197 (Fla. 4th DCA 1999) (“[T]he State may not

rely on evidence presented in the defense's case to supply the missing elements

necessary to prove its case.”). Because the evidence at trial was legally insufficient6

to support Mendez’s lewd and lascivious molestation conviction, we hold that

fundamental error has occurred, and we vacate said conviction.

II. Evidence of the Uncharged Attempted Molestation

      We now turn to the second argument Mendez raises on appeal: that the

improperly introduced evidence of a prior uncharged attempted molestation

deprived Mendez of a fair trial. This argument was not preserved, so to prevail,

Mendez must demonstrate fundamental error. Fike v. State, 4 So. 3d 734, 739
6“Legal sufficiency alone, as opposed to evidentiary weight,” is our only concern.
See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff'd sub nom. Tibbs v.
Florida, 457 U.S. 31 (1982).

                                         10
(Fla. 5th DCA 2009).       As we have already explained, M.H. was unable to

corroborate, at trial, the molestation incident she had described during her forensic

interview. When the State attempted to elicit testimony about this incident, M.H.

unexpectedly mentioned a time when Mendez had asked to touch her in exchange

for candy, though she denied that he had touched her. During closing arguments,

the State relied on this incident as evidence of grooming: “Where does he get off

grooming behavior [sic], the candy, being gross? It is gross. It's called grooming

your victim: You let me touch you, I will give you candy . . . .”

      “Evidence of bad acts not included in the charged offenses is generally

referred to as ‘collateral crimes evidence.’” Dorsett v. State, 944 So. 2d 1207,

1212 (Fla. 3d DCA 2006). Generally, collateral crimes evidence is admissible 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.” § 90.404(2)(a), Fla. Stat. (2018). This general rule of

admissibility is referred to as the Williams rule. Charles W. Ehrhardt, 1 Fla. Prac.,

Evidence § 404.9 (2018 ed.); see also Williams v. State, 110 So. 2d 654, 659 (Fla.

1959). In cases involving child molestation, the rule on admissibility of collateral

crimes evidence is even broader:

             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
                                         11
              of child molestation is admissible and may be considered
              for its bearing on any matter to which it is relevant.

§ 90.404(2)(b), Fla. Stat (2018).

       If the State intends to introduce Williams rule evidence, it must give written

pretrial notice:

              1. When the state in a criminal action intends to offer
              evidence of other criminal offenses under paragraph (a),
              paragraph (b), or paragraph (c), no fewer than 10 days
              before trial, the state shall furnish to the defendant or to
              the defendant's counsel a written statement of the acts or
              offenses it intends to offer, describing them with the
              particularity required of an indictment or information. No
              notice is required for evidence of offenses used for
              impeachment or on rebuttal.

§ 90.404(d), Fla. Stat (2018). Here, no pretrial notice was given.

       The State argues that M.H.’s candy incident testimony was not Williams rule

evidence because it was inextricably intertwined with the crimes charged.

Specifically, the State asserts that the evidence showed the entire context in which

the molestation and sexual battery occurred because it showed how Mendez

groomed M.H. Evidence that is inextricably intertwined with the charged offense

falls into the category of relevant evidence under section 90.402; therefore, no

pretrial notice under section 90.404(2)(d) is required. See Dorsett, 944 So. 2d at

1213 (“Relevant evidence admitted under section 90.402 does not require

notice.”); see also Ehrhardt, supra, at § 404.17 (“Because the evidence is

admissible under section 90.402, rather than 90.404(2), the ten day notice

                                          12
provision in section 90.404(2) is not applicable. However, the defendant will

almost always be fully aware of this evidence and prepared at trial to dispute it

because it is an inseparable part of the charge crime.”).

      We reject the State’s argument that the evidence was inextricably

intertwined because evidence of the uncharged act was not necessary to describe

the crimes charged. See Beckman v. State, 230 So. 3d 77, 84 (Fla. 3d DCA 2017)

(“Collateral evidence is admissible under section 90.402 if it is a “relevant and

inseparable part of the act which is in issue.” (quoting Dorsett, 944 So. 2d at 1214-

15)). “The Florida courts have reasoned that the evidence of an inseparable crime

should be admitted when it is inextricably intertwined with the underlying crime

and where it is impossible to give a complete or intelligent account of the crime

charged without reference to the other crime.”        Ehrhardt, supra, at § 404.17

(footnotes and internal quotation marks omitted). Here, evidence of the candy

incident was not necessary to give a complete account of the molestation or the

sexual battery. Indeed, the State concedes that it was not even aware of the candy

incident before trial, which undermines its argument that this incident was an

inseparable part of the charged offenses.

      We must now determine whether the admission of the uncharged crime rises

to the level of fundamental error. We conclude that it does because, as in Fike, this

case turned solely on the victim’s credibility, and “[t]here was no physical

evidence to corroborate her version of
                                            13
events, nor was there any confession or admission.” 4 So. 3d at 739. With respect

to the physical evidence, M.H. underwent a full physical examination the day after

the sexual battery. Dr. Lambert testified that it was a normal examination and

there were no signs of injury. There was no DNA evidence to corroborate the

incident since no DNA was collected from M.H. or from Mendez’s bedroom. Dr.

Lambert did collect M.H.’s clothing, and although M.H. told the forensic

interviewer and also testified at trial that there was blood in her underwear after the

sexual battery, the lab results came back negative for the presence of blood. There

was also no confession or admission to the charged crimes. Because there was no

physical evidence or confession to corroborate M.H.’s version of the events, we

find that this is one of the very rare cases in which the fundamental error doctrine

applies. See Fike, 4 So. 3d at 739 (“Fundamental error is error that undermines the

confidence in the trial outcome and goes to the very foundation of a case. Mathew

v. State, 837 So.2d 1167, 1170 (Fla. 4th DCA 2003). That has occurred here.

‘Because of the commonly held belief that individuals who commit sexual assaults

are more likely to recidivate as well as societal outrage directed at child molesters,

the admission of prior acts of child molestation has an even greater potential for

unfair prejudice than the admission of other collateral crimes.’”).

                                   CONCLUSION

      For the reasons set forth above, we conclude that (1) there was insufficient

evidence as to Mendez’s molestation
                                          14
conviction, and (2) the State’s reliance on evidence of an uncharged crime, coupled

with the lack of corroborating physical evidence or a confession, undermined the

confidence in the verdict. We therefore reverse and remand with instructions to

vacate Mendez’s conviction for lewd or lascivious molestation and to enter a

judgment of acquittal as to that charge, and to conduct a new trial with respect to

the remaining sexual battery charge.

      REVERSED and REMANDED.




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