IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
VERNON BERNARD MOSS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-421
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 1, 2015.
An appeal from the Circuit Court for Alachua County.
Ysleta W. McDonald, Judge.
Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellee.
RAY, J.
Vernon Bernard Moss appeals his conviction for burglary of an occupied
dwelling and sexual battery. We find reversible error in the admission of evidence
of a collateral offense and evidence that Moss exercised his right to remain silent.
Consequently, we reverse and remand for a new trial.
FACTS
According to the State’s evidence, Moss committed the charged offenses on
December 20, 2012, while working in maintenance at the Verdant Cove apartment
complex. R.L., a resident, saw Moss outside and asked him to come into her
apartment to trim some vertical blinds. R.L. asked if she needed to place a request
with the management office, and Moss indicated that she did not. He went by a
short time later and completed the job. When Moss finished trimming the blinds,
R.L. was standing in her kitchen making a sandwich for her four-year-old
daughter, who was in the open adjoining living room. With the young child
essentially in the same room, Moss approached R.L., made an unwelcomed
comment about her body, and attempted to put his hands in her pants. R.L.
physically blocked the attempt and told Moss to “get the fuck out of [her] house.”
Instead of leaving, Moss grabbed R.L.’s hand and said twice, “[L]et me show you
something I can fix in your bathroom.” When R.L. indicated she did not want to
go, Moss picked her up, threw her over his shoulder, and carried her into the
bedroom as she screamed. He locked the door and performed oral and vaginal sex
on R.L. against her will.
The police interviewed Moss the same day as the incident. During this
interview, the officer suggested that Moss and R.L. may have engaged in
consensual sex, but Moss denied any sexual contact with her at all. At the end of
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the interview, the officer advised Moss that if he did have sex with R.L., the
information would come out because R.L. was undergoing a sexual assault
examination, which could reveal DNA evidence.
A few months later, after confirming that Moss’s DNA was found inside the
victim, the police attempted a second interview with Moss. An officer read Moss
his Miranda1 rights and asked, “Having these rights in mind, do you wish to talk to
us now, or at least listen to what we have to say?” Moss answered, “I’ll listen to
what you’ve got to say.” The officer then asked Moss if he recalled the prior
interview and having denied any contact with R.L. Moss confirmed, “That’s
correct.” The officer responded, “Okay. Is –now, that’s—is that your—you still
maintain that you never—,” at which point Moss interrupted with, “That’s my final
statement.” The officer proceeded, stating, “Okay. That you never had any contact
with her?” Moss confirmed, “That’s what I’m saying.”
This second interview was admitted into evidence over the defense’s
objection that it amounted to an improper comment on Moss’s invocation of his
right to remain silent. Although the interview went on (resulting in a statement that
the prosecutor agreed was an invocation of the right to remain silent), the portion
the jury heard was approximately two minutes long and is summarized in this
opinion in its entirety. In the State’s closing argument, the prosecutor characterized
1
Miranda v. Arizona, 384 U.S. 436 (1966).
3
the significance of Moss’s comments as showing that he lied after having three
months “to think about this,” after knowing that the police had taken a DNA
sample from him, and after being arrested for rape.
The trial court also admitted evidence of a collateral crime by Moss. The
collateral crime witness, M.A., testified that she was living at the Verdant Cove
apartment complex on November 10, 2012, when she saw Moss outside and asked
him to replace a lightbulb in her apartment. Moss entered her apartment, replaced
the bulb, and then approached M.A. from behind while she was standing in her
kitchen preparing food. Moss placed his hands on M.A.’s chest and asked if her
breasts were real, at which point she pushed him back and told him to “get the fuck
out of [her] apartment.” Moss replied, “That’s how it is?” and left.
Moss objected to the admission of M.A.’s testimony on the ground of
relevance. The trial court concluded that this evidence was relevant to show lack of
consent or mistake and modus operandi. At trial, the court instructed that the
evidence could be considered to show “intent or the absence of mistake or accident
on the part of [Moss].” To the jury, the prosecutor argued that M.A.’s testimony
showed “the way [Moss] preys on women.” The prosecutor suggested that Moss
was “probably empowered by the fact that there were no consequences for what
happened to [M.A.], and so he went the further step with [R.L.].”
4
On behalf of the defense, Moss testified that he had consensual sex with
R.L., for which he had agreed to pay her, after entering her home for the purpose
of fixing her blinds. He explained that he lied to the police because he did not want
his wife to find out about his infidelity. He stated that he maintained his denial
because he hoped R.L. would eventually change her story.
ANALYSIS
I. Collateral Crime Evidence
The first argument we address is that the trial court reversibly erred in
admitting evidence of the offense against M.A. A trial court’s ruling on the
admissibility of evidence is reviewed for abuse of discretion, subject to the rules of
evidence. Donton v. State, 1 So. 3d 1092, 1093 (Fla. 1st DCA 2009).
Section 90.404(2)(a), Florida Statutes (2013), known as the Williams 2 rule,
addresses the admission of collateral crime evidence:
Similar fact evidence of other crimes, wrongs, or acts is admissible
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 rule is “a special application of the general relevancy rule for [a] collateral
crime,” Wright v. State, 19 So. 3d 277, 292 (Fla. 2009), which describes ways in
2
Williams v. State, 110 So. 2d 654 (Fla. 1959).
5
which collateral crime evidence may be relevant to specific issues in a trial.
Although the rule addresses “similar fact evidence,” mere similarity to the charged
offense does not ensure the relevance or admissibility of collateral crime evidence.
Charles W. Ehrhardt, Florida Evidence § 404.9 (2013 ed.); see Bolden v. State, 543
So. 2d 423, 423 (Fla. 5th DCA 1989) (emphasizing that evidence should not be
admitted merely to show a pattern of conduct). Likewise, lack of similarity in itself
does not require exclusion of evidence of a collateral offense that is relevant to a
material issue. McLean v. State, 934 So. 2d 1248, 1258 (Fla. 2006). The Williams
rule addresses similarity because the relevance of collateral crime evidence is
“often a function of its similarity.” Id. at 1255.
Evidence of a similar collateral crime sometimes shows absence of mistake
because “[t]he more frequently an act is done, the less likely it is that it is
innocently done.” Vice v. State, 39 So. 3d 352, 357 (Fla. 1st DCA 2010). With
exceptions not pertinent to the instant case, 3 where collateral crime evidence is
offered for this purpose, it must be “strikingly similar” to the charged offense to be
admissible. Robertson v. State, 829 So. 2d 901, 909 (Fla. 2002). Generally, the
main crime at issue and the similar fact evidence must share “some unique
characteristics or combination of characteristics [that] set them apart from other
offenses.” Id. (quoting Heuring v. State, 513 So. 2d 122, 124 (Fla. 1987),
3
See § 90.404(2)(b), (c), Fla. Stat. (2013).
6
superseded by statute on other grounds, § 90.404(2)(b), Fla. Stat. (2002), as stated
in McLean, 934 So. 2d at 1258). This requirement of substantial similarity has
been imposed not only because the logical relationship between the similarity and
the issue of absence of mistake justifies it, see Vice, 39 So. 3d at 357, but also
because evidence of a collateral crime carries a high risk of a wrongful conviction
based on the defendant’s character or propensity to commit crimes, see Heuring,
513 So. 2d at 124.
When it is argued that evidence of a collateral crime tends to prove a
material issue due to its similarity to the charged offense, the trial court should
consider both similarities and differences between the crime being tried and the
similar fact evidence. See Tollefson v. State, 525 So. 2d 957, 960 (Fla. 1st DCA
1988) (collateral crime evidence inadmissible where differences between the two
scenarios overshadowed their “singular similarity”); Beaussicot v. State, 95 So. 3d
472, 474 (Fla. 4th DCA 2012) (two offenses not strikingly similar where
significant differences existed); Nshaka v. State, 82 So. 3d 174, 179 (Fla. 4th DCA
2012) (similarities between offenses were substantially outweighed by
dissimilarities); see also Corbett v. State, 113 So. 3d 965, 970 (Fla. 2d DCA 2013)
(collateral crime evidence admissible as “fingerprint evidence” where striking
similarities outweighed differences). If the collateral crime evidence involves a
different victim and is offered to prove absence of mistake, differing degrees of
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severity between the two offenses, or completion of the main crime at issue versus
a mere threat to commit a similar crime in the collateral scenario, are important
considerations. See Robertson, 829 So. 2d at 910 (holding defendant’s prior threat
of violence against ex-wife with an assault rifle was not sufficiently similar to the
fatal shooting of defendant’s current wife with a handgun to justify admission
under the Williams rule).
Here, the trial court found the collateral crime evidence relevant to show
lack of consent and modus operandi, which, under the facts of this case, are both
ways of saying absence of mistake.4 Although there are clear similarities between
the two offenses described in the State’s evidence, the crime against M.A. is not
similar enough to the distinct crime against R.L. to provide a sufficient basis from
which the jury could find that Moss was not mistaken in any belief he may have
held that R.L. consented to sexual intercourse. Other evidence provided that basis,
but M.A.’s testimony did not. M.A. described a simple battery that Moss stopped
when she pushed him away and verbally protested. Although the battery M.A.
reported was of a sexual nature, it was substantially less severe than the two sexual
batteries 5 detailed in R.L.’s testimony. Perhaps most importantly, the two scenarios
4
Modus operandi is typically relevant to show identity. See, e.g., Drake v. State,
400 So. 2d 1217, 1219 (Fla. 1981).
5
Although only one sexual battery was charged, the two distinct acts could have
given rise to two separate charges. See State v. Meshell, 2 So. 3d 132, 135 (Fla.
8
are significantly distinguishable due to Moss’s acquiescence to M.A.’s protest in
comparison with R.L.’s description of his extreme escalation of the offense against
her, by throwing her over his shoulder, carrying her to the bedroom, locking the
door, and sexually battering her, after she protested in the exact same way as M.A.
The two incidents are similar in terms of the opportunities Moss exploited
and the manner in which he approached the women, but they are quite different on
the crucial issue of what Moss did when his unprovoked and unwelcomed actions
were rejected. The actions that followed this rejection, not the initial attempt to
touch R.L., led to the charge of sexual battery, and M.A.’s testimony is not
probative of Moss’s intent with regard to those actions. M.A.’s testimony
establishes only that Moss has a propensity to touch women’s bodies offensively,
without their consent. This type of propensity evidence is inadmissible and
presumptively harmful. See Vice, 39 So. 3d at 355. Because we are not convinced
beyond a reasonable doubt that this presumptively harmful evidence did not affect
the verdict, we reverse. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
II. Evidence of Invocation of the Right to Remain Silent
Moss’s additional argument, that the court erred in admitting the redacted
2009) (holding “the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal
penetration) are of a separate character and type requiring different elements of
proof and are, therefore, distinct criminal acts,” each of which may be the subject
of a separate conviction).
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recording of the second interview, provides another ground for reversal. Our
supreme court has emphasized that “[i]t is constitutional error to penalize an
individual for exercising the Fifth Amendment privilege” and that “the prosecution
may not introduce during trial the fact that an individual has relied upon this
protection in the face of accusation.” Ventura v. State, 29 So. 3d 1086, 1088 (Fla.
2010). This proscription extends to both evidence of the exercise of that right and
comments concerning such exercise. State v. Smith, 573 So. 2d 306, 317 (Fla.
1990). In fact, any comment or evidence even fairly susceptible of being
interpreted as indicating the exercise of this right is improper. Coleman v. State, 58
So. 3d 324 (Fla. 1st DCA 2011) (quoting State v. DiGuilio, 491 So. 2d 1129, 1135
(Fla. 1986)).
Under these principles, a defendant’s affirmative statement that he will not
talk to police must be excluded from evidence at trial. Carlisle v. State, 40 Fla. L.
Weekly D1075 (Fla. 2d DCA 2015); see also Mack v. State, 58 So. 3d 354, 355-56
(Fla. 1st DCA 2011); Ash v. State, 995 So. 2d 1158, 1158-59 (Fla. 1st DCA 2008);
accord Ventura, 29 So. 3d at 1089 (“[A]ny comment—direct or indirect—by
anyone at trial on this right is constitutional error that should be avoided.”).
Similarly, and analogous to the evidence at issue here, a comment by a prosecutor
that the defendant has not before offered the explanation of events he offers at trial
is improper. Chamblin v. Sate, 994 So. 2d 1165, 1167-68 (Fla. 1st DCA 2008)
10
(reversing due to prosecutor’s comment that defendant, accused of DUI
manslaughter, had “waited a year” to blame the victim); see also Floyd v. State,
129 So. 3d 1214, 1214-15 (Fla. 1st DCA 2014) (finding “clearly” improper a
prosecutor’s questioning of the defendant as to why he did not speak to police
before trial to tell them he acted in self-defense, as he claimed during his trial
testimony).
Under the circumstances presented in this case, Moss’s remark to the
detective that he would listen to the detective (and not necessarily talk to him),
soon followed by an assertion that his prior interview was his “final statement” is
at least fairly susceptible of being interpreted as an exercise of his right to remain
silent. The recording at issue is brief, at approximately two minutes long, and
essentially begins and ends with Moss’s refusal to give a new statement. It contains
no clear waiver of the right to remain silent and no substantial interaction between
the officer and Moss before or after Moss’s announcement that he has given his
“final statement.”6 The fact that the recording ends shortly after this announcement
6
Moss’s responses to the detective may not have been enough to invoke his right
to remain silent and require questioning to cease after a valid waiver of the right.
See Alvarez v. State, 15 So. 3d 738, 743 (Fla. 4th DCA 2009) (recognizing that
once a defendant validly waives his Miranda rights, an attempt to re-assert those
rights within the same interaction must be clear and unequivocal). This case,
however, is not one where a defendant validly waived his right to remain silent and
argues that he later asserted the right before ultimately making incriminating
statements that the State hopes to introduce into evidence. E.g., Bailey v. State, 31
So. 3d 809, 815-16 (Fla. 1st DCA 2009) (upholding trial court’s finding that
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itself suggests that the announcement was an assertion of the right to remain silent.
While parts of the brief interaction could be interpreted as substantive denials of
contact with the victim, overall, the interaction is more susceptible of being
interpreted as an attempt by Moss to exercise his right against self-incrimination.
The prosecutor attempted to walk a fine line between (1) emphasizing that
Moss continued to lie despite knowing of the DNA test and having time to reflect
on his previous statement and (2) arguing that Moss, if innocent, should have
spoken up and provided an explanation when confronted with the DNA evidence.
Despite this effort, the implication of guilt created by this evidence arises much
more from the decision not to make further comments until the time of trial, when
Moss raised a never-before-asserted defense, than from the cumulative point that
Moss lied to the police about sexual contact with the victim. The fact that Moss
lied once was relevant; the fact that he lied a second time, only marginally so. The
more significant, but legally improper, point to be drawn from the second
interview is that Moss changed course and invoked his right to remain silent after
ambiguous statement by defendant that he did not “really want to talk about that”
was insufficient to trump prior clear waiver of right to remain silent). It is also not
a case where the defendant selectively refused to answer one substantive question
among many in a voluntary interview. E.g., Hudson v. State, 992 So. 2d 96, 110-11
(Fla. 2008) (opining that prosecutor’s comments concerning defendant’s refusal to
implicate another person during a voluntary interview did not amount to a
comment on defendant’s right to remain silent, as defendant had not exercised the
right).
12
the DNA test results were in and he was confronted by police a second time. From
the exercise of Moss’s right to remain silent, the jury could have inferred that Moss
essentially admitted he was caught.
Because we are unable to conclude that the admission of the redacted
recording of the second interview was harmless beyond a reasonable doubt,
Appellant is entitled to a new trial. See DiGuilio, 491 So. 2d at 1135.
CONCLUSION
For the foregoing reasons, we are compelled to reverse Moss’s convictions
for burglary and sexual battery and remand for a new trial.
REVERSED and REMANDED.
MARSTILLER and SWANSON, JJ., CONCUR.
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