DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CARLOS ROMAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D12-4288
[May 20, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.
10000394CF10A.
Carey Haughwout, Public Defender, and John M. Conway, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The defendant appeals his conviction of one count of lewd or lascivious
molestation of a child under the age of twelve. He argues, among other
issues, that the trial court erred in denying his request to call two
witnesses in support of his defense. We agree and reverse.
The State charged the defendant with one count of sexual battery and
one count of lewd or lascivious molestation of a child under the age of
twelve, his daughter. The charges stemmed from a single incident of
alleged inappropriate touching that occurred two years before it was
reported. Initially, the child did not say anything to the defendant or to
her mother about the incident. The child indicated that she did not want
her father to go to jail.
Two years later, however, the mother reported the incident to
authorities. A week later, the mother and child went to the police station
where the child gave a detailed statement. The child was inconsistent,
however, about whether penetration had occurred. The child was not
examined by the sexual assault treatment center.
Testimony revealed that the defendant and the mother had been
married for nearly ten years prior to reporting the incident. Shortly after
the defendant’s arrest, the mother opened a dating website account and
began dating. Within months of the defendant’s arrest, the mother filed
for divorce, and remarried not long after the divorce was finalized.
Just prior to his arrest, the defendant requested a distribution of money
from his 401(k) plan for investment purposes. The money did not arrive
until after he was arrested. The mother deposited the money into their
joint account and later withdrew it.
The defendant asked the mother to give $15,000 of the funds to his
sons from a prior marriage; she initially refused to do so. Defense counsel
asked the mother whether she used the money to get liposuction. The
State made a relevancy objection, which the court sustained.
The defendant sought to call his first wife and son to testify. As defense
counsel explained, the testimony would show the mother had motive and
bias to have the defendant arrested. He believed she “brainwashed” the
child to make up the charges. The trial court did not permit the testimony,
finding it to be collateral and unrelated to motive.
Defense counsel proffered their testimony into the record. The sons
had been living with the defendant prior to his arrest. His first wife moved
in with the mother, the child, and her sons after the arrest. Both testified
to the mother’s dating behavior after the defendant’s arrest and how the
mother spent the monies taken from the defendant’s 401(k) plan for plastic
surgery. They both observed the mother begin dating immediately after
the defendant’s arrest and saw her bring men home. The mother told the
first wife she met the men on a dating website.
The mother took trips to visit one of the men, leaving the children at
home with the first wife. The first wife saw the mother being affectionate
with one of men in front of the child. Once the first wife moved out, the
mother began cohabiting with a man, whom she later married.
The defendant’s son witnessed a difference in how the mother acted
after the defendant went to jail. She began dating and acting single. The
mother brought men home on a couple of occasions and was “drinking,
kissing, and hugging” them on the couch with the child present.
The jury did not hear any of this testimony.
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The defendant then testified. He adamantly denied ever touching the
child inappropriately. He thought that his marriage to the mother was
good in the beginning, however, he noticed changes in her behavior just
prior to her reporting the molestation to the authorities. She made phone
calls in the bathroom and seemed to have an excuse whenever he tried to
be intimate with her. He believed she was having an affair. He confronted
her about his suspicions.
He intended to use the money from his 401(k) plan for investment
purposes, but changed his mind after he was arrested. He wanted to use
the money for bond and an attorney, but the mother refused to give him
the money. He sent people from their church to get the money from the
mother, to no avail. Once he realized he was not going to get the money,
he asked the mother to give some of it to his sons. The mother ultimately
gave his first wife $15,000 for his sons.
Motions for judgment of acquittal were denied. The jury acquitted the
defendant of the sexual battery count, but convicted him of lewd or
lascivious molestation of a child under the age of twelve. The court
sentenced him to twenty-five years of incarceration, followed by a life term
of sex offender probation. From his conviction and sentence he now
appeals.
The defendant argues the trial court erred in prohibiting his first wife
and son from testifying. He argues the proffered testimony was relevant
and admissible to show the mother’s bias and prejudice, was not improper
character evidence, and did not open the door to previously excluded
Williams rule evidence.1 The State responds that the trial court did not err
because the witnesses were going to testify to collateral matters, and any
error was harmless as the mother testified to the same facts. We agree
with the defendant and reverse.
We review evidentiary rulings for an abuse of discretion. McDuffie v.
State, 970 So. 2d 312, 326 (Fla. 2007) (citing Fitzpatrick v. State, 900 So.
1Prior to trial, the defendant moved to exclude reference to a prior case where he
was acquitted of five counts of lewd and lascivious molestation and two counts
of sexual battery against his stepdaughter. The trial court granted the motion,
but then excluded the proffered testimony, in part, because it found it would open
the door to the admission of the excluded Williams rule evidence. We do not agree
that the admission of the proffered testimony would have affected the court’s
ruling on the Williams rule evidence.
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2d 495, 514–15 (Fla. 2005)).
“Relevant evidence is evidence tending to prove or disprove a material
fact.” § 90.401, Fla. Stat. (2012). “All relevant evidence is admissible,
unless provided by law.” Id. § 90.402. “[W]here evidence tends in any way,
even indirectly, to establish a reasonable doubt of defendant’s guilt, it is
error to deny its admission.” Rivera v. State, 561 So. 2d 536, 539 (Fla.
1990) (citing § 90.404(2)(a), Fla. Stat. (1985)).
There are different considerations presented when the question relates
to the relevancy of evidence to show a reasonable doubt, rather than the
commission of a crime. Vannier v. State, 714 So. 2d 470, 472 (Fla. 4th
DCA 1998). “If there is any possibility of a tendency of evidence to create
a reasonable doubt, the rules of evidence are usually construed to allow
for its admissibility.” Id. (citations omitted).
Showing an interest in the outcome can be used to demonstrate bias.
Mardis v. State, 122 So. 3d 950, 953 (Fla. 4th DCA 2013). A party is given
wide latitude to develop motive or bias in a witness’s testimony. Id.
(citation omitted).
Here, the proffered testimony may not have gone to a material fact, but
the defendant wanted to use the proffered testimony to develop reasonable
doubt. His theory was that the mother coaxed the child to make up the
molestation charges so that the mother could be free to date other men.
The proffered testimony would have been used to prove that upon the
defendant’s arrest, the mother immediately began dating, used the
defendant’s money for plastic surgery, and married as soon as her divorce
was final, within months of the defendant’s arrest. Thus, there was a
“possibility of a tendency of evidence to create a reasonable doubt.”
Bertram v. State, 637 So. 2d 258 (Fla. 2d DCA 1994), is persuasive.
There, the defendant was charged with, and convicted of, two counts of
sexual battery on his niece. Id. at 259. The defendant’s theory of defense
was that the niece made up the allegations after the defendant’s father
prompted her to. Id. at 260. The defendant wanted to introduce evidence
of prior altercations with his father that would show that “‘there was some
kind of deal put together . . . so they put [the niece] on the spot to get [the
defendant].’” Id. (first alteration in original). The Second District reversed,
holding the trial court erred in not admitting the evidence as it was
relevant to the defense theory. Id. at 260–61. We find the same result is
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dictated here.2
Reversed and Remanded for a new trial.
DAMOORGIAN, C.J., and TAYLOR, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 We further do not find the exclusion of this evidence harmless. State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986). While the mother testified to some of the
facts, her testimony, not surprisingly, was tempered, lacked detail, and was given
in the light most favorable to her.
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