         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


JAMES ALBERT TAYLOR,

              Appellant,

 v.                                                       Case No. 5D17-1912

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed September 28, 2018

Appeal from the Circuit Court
for Flagler County,
Dennis Craig, Judge.

James S. Purdy, Public Defender, and
Steven N. Gosney, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.


LAMBERT, J.

       James Albert Taylor appeals his conviction for lewd or lascivious molestation of

T.F., a child less than twelve years of age, in violation of section 800.04(5)(a)-(b), Florida

Statutes (2013). Taylor raises three issues on appeal. We find no merit to Taylor’s

arguments that section 800.04(5)(a) is either unconstitutionally vague or overbroad and
that certain comments made by the State in its closing arguments require reversal, and

we do not address them any further. We do, however, agree with Taylor’s first argument

that the trial court erred in admitting into evidence, over objection, collateral crime or

similar fact testimony that Taylor had previously committed a sexual battery upon the

victim’s then twelve-year-old sister, L.G.

       In the sole count of the information, the State alleged that between August 20,

2013, and November 6, 2013, Taylor unlawfully and intentionally touched T.F., a person

less than twelve years of age, in a lewd and lascivious manner, on the breast, genitals,

genital area, or buttocks, or the clothing covering them, contrary to section

800.04(5)(a)-(b), Florida Statutes. At the time, Taylor was T.F.’s stepfather. T.F. would

later testify at trial that when she was approximately ten or eleven years old, Taylor came

into the bedroom that T.F. shared with a different sister, J.F., and that while T.F. was lying

in her bed, Taylor touched her breast for a couple of seconds over the t-shirt that she was

wearing. When T.F. began to move, Taylor abruptly left the room.

       During the pendency of the case, the State filed what is commonly referred to as

a “Williams Rule” 1 notice under section 90.404(2)(a), Florida Statutes (2017), providing

notice of its intent to use similar fact evidence of other crimes, wrongs, or acts at trial for

various reasons as provided in the statute. 2 Because Taylor was charged with a crime

involving child molestation, pursuant to section 90.404(2)(b)1., evidence of his

commission of other crimes, wrongs, or acts of child molestation was admissible and



       1   Williams v. State, 110 So. 2d 654 (Fla. 1959).
       2The State’s intended purposes for this evidence at trial, according to its notice,
were to prove “motive, intent, common scheme or plan, absence of accident or
mistake/consent, and identity.”


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could be considered for its bearing on any matter to which it was relevant. The State

listed five witnesses in its notice, including the victim, that it intended to call at trial to

testify as to prior acts of child molestation 3 committed upon them by Taylor.

       Following a pretrial evidentiary hearing, the trial court entered an order permitting

T.F. to testify about an earlier, uncharged act of sexual misconduct committed upon her

by Taylor. The court also allowed T.F.’s sister, J.F., to testify about similar acts of

molestation committed upon her by Taylor when he would come into J.F.’s bedroom and

touch her while she appeared to be sleeping in her bed. Taylor has not challenged these

rulings on appeal. The admissibility of the similar fact or collateral crime testimony of

T.F.’s other sister, L.G., is at issue here. 4

       In its notice, the State asserted that when L.G. was approximately twelve years old

and living with her mother, Taylor, and her two sisters, Taylor “forced [L.G.] on the bed,

took her clothes off, and forcefully inserted his penis in her vagina.” At the pretrial hearing,

L.G. provided further context to this act, testifying that she had just finished taking a

shower and was putting her dirty clothes in a clothes bin located in the bedroom that

Taylor shared with L.G.’s mother. At that point, Taylor “pinned” L.G. onto his bed so that

she could not get up and “stuck his penis in [her]” for what seemed like a “long time.” L.G.

also testified at the pretrial Williams Rule hearing to some unspecified but inferentially

improper “touching” by Taylor immediately prior to the sexual battery.




       3   The definition of “child molestation” is set forth in section 90.404(2)(b)2.
       4
       The court excluded the testimony of the other two Williams Rule witnesses, who
were not related to the victim or to Taylor. This ruling has not been challenged.


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       In its written order allowing L.G.’s testimony at trial, the court first found that this

incident was established by clear and convincing evidence. The court recognized the

great risk in admitting this evidence at trial due to its “highly prejudicial” nature based on

the severity of the collateral crime in relation to the charged crime, but it found that

Taylor’s touching of L.G. prior to the sexual battery was similar to the alleged touching of

the victim of the charged crime. The court also found that the probative value of the

collateral crime evidence was great not only to show Taylor’s intent and lack of mistake

but also to corroborate T.F.’s testimony of the molestation.

       The admissibility of collateral crime or similar fact evidence is within the discretion

of the trial court as limited by the rules of evidence. LaMarca v. State, 785 So. 2d 1209,

1212 (Fla. 2001). Nevertheless, as recognized by our sister court, “such discretion is not

unfettered” in child molestation cases, Cotton v. State, 176 So. 3d 310, 313 (Fla. 3d DCA

2015), even though section 90.404(2)(b)1. broadened the admissibility of similar fact

evidence. See McLean v. State, 934 So. 2d 1248, 1258-59 (Fla. 2006) (acknowledging

that the 2001 enactment by the Legislature of section 90.404(2) broadened the

admissibility of a defendant’s commission of other acts of child molestation).

       As our court has previously explained, relevancy still remains the threshold

consideration for the trial court in this type of case when deciding whether to admit prior

acts of child molestation. Fiore v. State, 967 So. 2d 995, 997-98 (Fla. 5th DCA 2007)

(quoting Triplett v. State, 947 So. 2d 702, 703-04 (Fla. 5th DCA 2007)). In McLean, the

Florida Supreme Court explained the trial court’s gatekeeping function in conducting this

threshold consideration to determine whether to admit similar fact or collateral crime

evidence in child molestation cases:




                                              4
              [T]he 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 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.

              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.

934 So. 2d at 1259.

       Admittedly, and as recognized by the trial court, there are some similarities here

between the charged offense against the victim and the collateral crime evidence

regarding L.G. Both children are female and were of similar age at the time of the

respective incidents, and the offenses occurred in the home involving their stepfather.

However, the dissimilarities between the charged offense and the collateral crime

evidence are significant. The victim was touched on the top part of her breast over her t-

shirt for a matter of a couple of seconds. The collateral crime evidence showed Taylor

forcefully “pinning” L.G. on his bed in a manner that prevented her from getting up, then

inserting his penis in L.G. for what seemed like a “long time.”5

       As previously indicated, the trial court recognized in its order that the charged

offense was less severe than the collateral crime and thus there was a greater risk of




       5 At trial, L.G. changed her testimony to reflect that the sexual battery took place
“in the blink of an eye.”


                                             5
prejudice in admitting testimony regarding the collateral crime, but it reasoned that the

“touching [of L.G.] prior to the sexual [battery] was similar” but that Taylor just “went further

and committed the final act.” We believe that the collateral crime evidence presented

during trial was unduly prejudicial and should have been excluded. First, there was no

testimony at the pretrial hearing as to the specific nature of Taylor’s “touching” of L.G.

prior to committing the sexual battery. Second, unlike at the pretrial hearing, L.G. did not

testify at trial as to any “touching” by Taylor, only the sexual battery, thus making the trial

evidence of the sexual battery committed on her even less similar to the charged crime

and therefore less relevant and even more prejudicial than probative under McLean.

Finally, even if the “touching” of L.G. was in fact similar to the alleged molestation of the

victim, the jury had already heard other collateral crime or similar fact evidence from both

the victim and another sister.

       “Collateral crime evidence violates a defendant’s right to due process if it is so

prejudicial that it denies the defendant a fair trial.” McLean, 934 So. 2d at 1261 (citing

United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001); United States v. Castillo,

140 F.3d 874, 883 (10th Cir. 1998)). Such evidence “is inherently prejudicial because it

creates the risk that a conviction will be based on the defendant’s bad character or

propensity to commit crimes, rather than on proof that he committed the charged offense.”

Gartner v. State, 68 So. 3d 986, 988 (Fla. 5th DCA 2011) (citing McLean, 934 So. 2d at

1255). Given the significant dissimilarities between the charged crime and the collateral

crime of the prior sexual battery committed by Taylor upon L.G., combined with the

admittedly highly prejudicial nature of this evidence, and in light of the other similar fact




                                               6
evidence properly admitted, we conclude that the trial court abused its discretion in

admitting evidence of the sexual battery committed upon L.G.

      Finally, we reject the State’s argument that the admission of this testimony was

harmless error. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Accordingly,

we reverse Taylor’s judgment and sentence and remand for a new trial. 6



      REVERSED and REMANDED.



EVANDER and EDWARDS, JJ., concur.




      6   We do not foreclose the potential admissibility on retrial of Taylor’s alleged
improper touching of L.G. prior to the sexual battery as similar fact or collateral crime
evidence under section 90.404(2)(b). This determination is best left initially to the trial
court after hearing further evidence of the nature of the touching. Cf. Cotton, 176 So. 3d
at 315 & n.5 (approving the admission of similar fact evidence of lewd or lascivious
conduct committed by the defendant against the victim’s two sisters but finding that the
trial court abused its discretion in also permitting introduction of the defendant’s prior
sexual batteries of the sisters).


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