           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                JOSE LUIS LOPEZ,
                                   Appellant,

                                          v.

                               STATE OF FLORIDA,
                                    Appellee.

                                   No. 4D13-1859

                                    [May 6, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; William L. Roby, Judge; L.T. Case No. 432012CF000134.

  Margaret Good-Earnest of Good-Earnest Law, P.A., Lake Worth, for
appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.

FORST, J.

   Appellant Jose Lopez was convicted of lewd or lascivious molestation
under section 800.04(5)(b), Florida Statutes (2011), and sentenced to
twenty-five years imprisonment. Appellant now challenges his conviction
and sentence. Among other arguments, Appellant contends the trial court
erred by giving an improper jury instruction concerning collateral crime
evidence. For the reasons discussed below, we agree and hereby reverse
Appellant’s conviction.

    Appellant was alleged to have touched the clothed buttocks and pelvic
region of an eleven-year-old female friend of his niece. At trial, the State
presented testimony from the alleged victim, as well as testimony from
another girl who claimed Appellant also touched her inappropriately. Prior
to the second girl’s testimony, the trial court read the standard Williams1
Rule instruction, explaining the jury could consider the second girl’s
testimony only “for the limited purpose of proving intent, and the absence

1
    Williams v. State, 117 So. 2d 473 (Fla. 1960).
of mistake or accident on the part of the defendant.” See Fla. Std. Jury
Instr. (Crim.) 3.8(a).

    At the close of evidence, the trial court once again read a Williams Rule
instruction.     This time, however, the trial court read a modified
instruction, provided by the State, allowing the jury to consider the second
girl’s testimony for “showing the pattern of conduct with this child victim,
proof of motive, opportunity, intent, absence of mistake or accident,
propensity, and/or lustful state of mind.”           This second, modified
instruction was an incorrect statement of the law and, as such, erroneous.

    Section 90.404(2)(a), Florida Statutes (2011), allows for the
introduction of collateral act evidence “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.” This general rule is modified when a
defendant is charged with a crime involving child molestation. In that
case, “evidence . . . of other crimes, wrongs, or acts of child molestation .
. . may be considered for its bearing on any matter to which it is relevant.”
§ 90.404(2)(b)(1), Fla. Stat. (2011).

   The Florida Supreme Court elaborated on the statute’s criteria for the
proper usage of collateral act evidence in child molestation cases in
McLean v. State, 934 So. 2d 1248 (Fla. 2006). In that case, the Supreme
Court held that the admission of collateral crime evidence under section
90.404(2)(b) was constitutional when used to corroborate the victim’s
testimony rather than to prove the identity of the perpetrator. Id. at 1248.
However, McLean also provided guidelines for when collateral crime
evidence was appropriate. In addition to requiring the State to prove the
collateral acts by clear and convincing evidence, weighing the probative
value of the evidence against its potential unfair prejudice, and limiting
the usage of the collateral act evidence so that it does not become “a
feature of the trial,” the trial court is required, where appropriate, to give
an instruction limiting the use of the collateral act evidence. Id. at 1251-
56.

   “Collateral crime evidence becomes an impermissible ‘feature’ where
collateral act evidence ‘overwhelms’ evidence of the charged crime and
becomes ‘an impermissible attack on the defendant’s character or
propensity to commit crimes.’” Grier v. State, 27 So. 3d 97, 101 (Fla. 4th
DCA 2009) (quoting Samuels v. State, 11 So. 3d 413, 418 (Fla. 4th DCA
2009)). We acknowledge that there is a fine line the State must walk when
seeking to introduce collateral act evidence. The approved use of such

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evidence to show corroboration of a victim’s testimony can very easily
devolve into an impermissible attack on a defendant’s character or
propensity to commit crimes. While it is imperative the State refrain from
misusing collateral act evidence, the trial court also has an obligation to
properly instruct the jury on the acceptable uses of the evidence. Here,
the erroneous jury instruction (compounded by the State’s repeatedly
calling Appellant a “child molester,” as discussed below) tainted what may
have once been admissible evidence by explicitly allowing the jury to
consider the collateral act evidence for propensity and/or lustful intent.
This permitted the jury to infer Appellant’s guilt of the charged crime based
on the accusation of an uncharged crime and asserted propensity to
commit crimes of this nature.

   We also caution future courts to be mindful of the use of inflammatory
and prejudicial language during trial. In this case, the State repeatedly
referred to Appellant as a “child molester.” The term child molester
includes intrinsic negative connotations and is highly likely to evoke an
emotional response from jurors. Describing a criminal defendant with
such a loaded term encourages the jury to presuppose guilt. The use of
such language is therefore unduly prejudicial and should be avoided. See
Petruschke v. State, 125 So. 3d 274, 279-80 (Fla. 4th DCA 2013) (holding
that the prosecutor’s use of the word “pedophile” to describe a defendant
was reversible error).

    Trials involving charges of this nature are inherently emotionally
charged. In the instant case, the trial court’s second Williams Rule
instruction improperly allowed the jury to consider collateral act evidence
to show Appellant’s propensity to commit the charged crime and this error
was exacerbated by permitting the State to refer to Appellant as “a child
molester.” Consequently, Appellant’s conviction is hereby reversed and
his case remanded to the trial court for a new trial.

   Reversed.

DAMOORGIAN, C.J., and CONNER, J., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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