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Fike v. State - 4 So. 3d 734 (Fla. Dist. Ct. App. 2009)

Rule:

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, a trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charge; (3) the frequency of the prior act; and (4) the presence or lack of intervening circumstances. This list is not exclusive. Trial courts should also consider other factors unique to a case. Factors other than the potential for unfair prejudice are also pertinent in a § 90.403, Fla. Stat., analysis. A trial court must determine whether the evidence of the prior acts will confuse or mislead jurors by distracting them from the central issues of the trial. Also necessary is an assessment whether the evidence is needlessly cumulative of other evidence bearing on the victim's credibility, the purpose for which this evidence may be introduced. Further, in accord with precedent, a trial court must guard against allowing the collateral-crime testimony to become a feature of the trial. Finally, if requested, a trial court shall give an appropriate cautionary instruction both at the time the evidence is presented and in its final charge to the jury

Facts:

Defendant allegedly sexually molested his daughter when she was 11 years old. Defendant argued that the trial court erroneously admitted evidence under § 90.404, Fla. Stat. (2007), which related to a prior incident of alleged sexual molestation. A witness testified that he was the younger brother of defendant's ex-wife. He further testified that when he was five to seven years old, defendant would baby-sit him while his sister took college classes. According to the brother's testimony, defendant forced him to perform oral sex on defendant approximately 10 times. The court allowed the evidence, finding that the testimony was reliable and the probative value outweighed the prejudicial effect of the evidence pursuant to § 90.403, Fla. Stat.

Issue:

Was the charged offense of sexual battery of defendant's daughter and the collateral offense of sexual battery on the witness sufficiently similar to render the collateral offense admissible?

Answer:

No.

Conclusion:

On appeal, the court found that the issue was not preserved for appellate review because the specific objection complained of on appeal was not raised below. Nonetheless, the charged offense of sexual battery of defendant's daughter and the collateral offense of sexual battery on the witness were not sufficiently similar to render the collateral offense admissible. Additionally, the admission of the testimony was fundamental error as it undermined confidence in the verdict.

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