Grier v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009
JEWEL GRIER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D08-1425
and 4D08-2431
[December 23, 2009]
LEVINE, J.
The issue presented is whether the trial court erred by allowing
similar fact evidence from two other collateral victims and whether it
became an impermissible feature of the trial.
Grier was charged by information with seventeen counts, including
lewd or lascivious molestation, lewd or lascivious conduct, attempted
sexual battery, felony battery, battery, and sexual battery. The charges
arose out of a physical relationship that Grier had with three teenage
girls.
The trial court severed the three counts involving one victim, M.R.,
and stayed the remaining counts involving the other victims. Prior to
trial, the State made an ore tenus motion to present testimony from
Grier’s other alleged victims, L.R., L.H., and P.H.,1 as Williams rule
witnesses. Th e trial judge ruled that there were a n “overwhelming
number of points of similarity” between the testimony of the victim and
the proffered Williams rule witnesses. Specifically, the trial court noted
the following similarities: all four met Grier through their association
with the Jehovah’s Witnesses; each girl started her “intimacy” with the
defendant between the ages of fourteen and seventeen; Grier made
comments on each girl’s body; Grier was a family friend of each girl
(except L.H.); each girl worked with Grier in some capacity; each girl
1Ultimately,
P.H. did not testify at trial.
testified that Grier touched her throughout her body; and the alleged
molestations happened at both Grier’s house and the girls’ houses. Over
Grier’s objection, the witnesses were permitted to testify.
At trial, M.R. testified that she first met Grier when she was about
seven or eight years old. Grier worked with M.R.’s parents, and when
M.R. was about thirteen years old, Grier temporarily moved into her
family’s home. M.R., L.R., and L.H. would “hang out” with Grier. M.R.
considered Grier to be like an “older brother.” He would counsel her on
“everything,” including her relationships, her looks, and her clothing.
M.R. told the jury in detail of Grier’s inappropriate conduct. One
evening, M.R. was asleep in a hotel and awoke when Grier began rubbing
her arms, back, and buttocks. Some weeks later, M.R. was watching
television at Grier’s house, and Grier abruptly started to kiss her. In yet
another incident, M.R. explained that L.H. and Grier’s brother watched
as Grier began to rub and kiss M.R. on the sofa. At some point, Grier
went to M.R.’s house and started rubbing M.R.’s vaginal area and kissing
her thighs.
These encounters continued for several weeks. M.R.
explained that her encounters with Grier ended after she spent time with
her peers and realized that Grier’s behavior was wrong.
M.R. testified that Grier would kiss and fondle L.H. in her presence,
and she related stories that Grier told her regarding L.H. Grier told M.R.
that he rubbed his penis on L.H.’s body and ejaculated on her neck.
M.R. also explained that Grier kept records where he would “rate” girls
based on their looks, character, personality, and spirituality. One of
Grier’s records stated that M.R. was the “hottest thing on the planet” and
asked rhetorically if he would “let things go with just a scratch or a sniff,”
i.e., whether he would pursue a more intimate sexual relationship with
M.R.
Following M.R.’s testimony, the State presented the testimony of the
two Williams rule witnesses, L.R. and L.H. L.R. testified that she met
Grier at the age of ten when Grier started working with her mother. L.R.
explained that she looked up to and trusted Grier as a devout member of
her faith. Grier told L.R. she was “not as pretty” as M.R. and L.H., but
he told L.R. he would be her “first kiss.” During summer 2000, when
L.R. was seventeen, Grier “[l]ifted [her] bra up, started kissing [her]
breasts, kissing [her] on the mouth, on [her] thighs, [and her] stomach.”
Grier also tried to place L.R.’s hand on his penis. Grier repeatedly
touched, rubbed, and kissed L.R. over several weeks.
L.H. testified that she started working with Grier when she was
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fourteen years old. L.H. and Grier developed a friendship that extended
beyond work. Grier spoke to L.H. about relationships and how to get a
person “to fall for you.” He frequently commented on L.H.’s clothing,
advising her to wear tighter shirts. When L.H. started working full-time
with Grier in 2000, the relationship became more intimate. Grier made
advances on L.H., including placing his tongue in L.H.’s bellybutton,
looking at L.H.’ s brassiere, touching various parts of her body, and
placing her hands on his genitals. Grier tried to penetrate L.H.’s vagina
and anus with his finger. Grier masturbated in front of L.H. on multiple
occasions. L.H. testified that she did not have knowledge of Grier’s
interactions with M.R. but stated that she knew Grier kept records about
other women.
We review the trial court’s admission of Williams rule evidence for an
abuse of discretion. Stav v. State, 860 So. 2d 478, 480 (Fla. 4th DCA
2003). The trial court admitted the collateral crimes evidence under
section 90.404(2)(a), Florida Statutes, permitting admission of prior acts
as proof of motive, opportunity, intent, knowledge, or absence of mistake.
The statute tests the relevancy of collateral crime testimony, albeit within
strict guidelines. Heuring v. State, 513 So. 2d 122, 124 (Fla. 1987).
Even if a trial court finds that the collateral crime evidence is admissible
under section 90.404(2), the court must also take a second step and
weigh the danger of unfair prejudice against the probative value of the
evidence. § 90.403, Fla. Stat. (2008); McLean v. State, 934 So. 2d 1248,
1256 (Fla. 2006).
If the danger of unfair prejudice “substantially
outweighs” the probative value, the trial court must exclude the evidence.
§ 90.403, Fla. Stat. (2008).
In this case,2 the trial court found that Grier’s conduct took place
during the spring and summer of 2000 on a handful of occasions with
each girl. The trial court further found that there were an “overwhelming
number of points of similarity, and very few points of dissimilarity”
between the victim’ s testimony and the Williams rule witnesses’
testimony. Specifically, the court below noted roughly seven or eight
points of similarity between M.R.’s testimony and the proffered testimony
of L.R. and L.H. The only distinction noted by the trial court was that
Grier was not a friend of L.H.’s family, in contrast to the close
2We
note that Grier has not challenged the relevancy of L.R.’s and L.H.’s
testimony. Instead, his argument rests on the second part of our inquiry — the
probative value of L.R.’s and L.H.’s testimony was, he claims, outweighed by
unfair prejudice. Nevertheless, because the relevancy and prejudice issues are
interrelated, we will address both parts of the inquiry.
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relationship Grier had to M.R. and L.R.’s parents.
Grier argues that the trial court erred by allowing L.R. and L.H. to
testify because their statements included allegations of “kissing and
touching their bare breasts.” He also objects to testimony from L.H. as to
attempted digital insertion in her genitalia, which Grier did not attempt
on M.R.
“A collateral crime proven by similar evidence does not need to be
absolutely identical to the crime charged in order to b e admissible.
Moreover, similar fact evidence relevant to prove a material fact other
than identity does not need to meet the rigid similarity requirement
applied when such evidence is used to prove identity.” Triplett v. State,
947 So. 2d 702, 703 (Fla. 5th DCA 2007) (citations omitted); see also
Macias v. State, 959 So. 2d 782 (Fla. 4th DCA 2007). The court in
Triplett f o u n d that the “similarity between the collateral act of
molestation” and the charged molestation shared “numerous similarities”
with the charged offense and, as such, upheld the trial court’s admission
of the witness testimony as within the “broad discretion of the trial
court.” 947 So. 2d at 704.
Likewise, in Macias, the defendant was a supervisor in a drug court
program who offered special assistance to participants in exchange for
sexual favors. At trial, the victim testified to exchanging sexual favors for
leniency, while the collateral witness did not perform any sexual acts,
despite the defendant’s request and offer in exchange. The court found
the collateral evidence to be sufficiently similar despite the lack of sexual
contact in the collateral incident:
Macias gained access to A.A. and A.B. in the same manner,
as both of them were undergoing mandatory drug counseling
under the guidance of Sherman, who in turn was supervised
by Macias; both had private meetings with Macias . . . in
Macias’ office with no one else present; both were close in
age at the time, A.A. eighteen years old, and A.B. twenty-two;
the two victims resembled each other, as both had blond
hair, blue eyes and were of relatively slim build; Macias had
similar conversations with both where he told them that if
they “took care of him” or did “what he needed [them] to do,”
he would help them in Drug Court; and, lastly, Macias told
both women not to tell anyone about these conversations.
959 So. 2d at 785. In the present case, like Macias, many points of
similarity between the charged act and collateral act exist. In that case,
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the variance in the extent of sexual contact between the victim and the
collateral witness with the defendant did not render the collateral witness
testimony irrelevant. As such, Macias suggests that variations in the
degree of conduct between the charged crime and the collateral crime are
not dispositive of questions of relevancy.
The First District’s opinion in Donton v. State, 1 So. 3d 1092 (Fla. 1st
DCA 2009), also illustrates the kinds of variations in conduct that will
not defeat a claim of relevancy. In that case, the court allowed the
collateral crimes evidence of the appellant “licking” and “touching” the
vaginal area of a five-year-old girl, where the appellant was charged with
sexual battery on a male teenager by “penile union with, or penetration
of, the victim’s anus.” Id. at 1093. In the present case, the distinction
between attempted digital insertion and fondling is less significant than
the variation of conduct detailed in Donton.
Finally, if the differences in conduct were such that the dissimilarity
to the charged crime made the evidence inadmissible, the introduction of
this evidence would still be harmless as to the issue of relevancy due to
the fact that L.R. and L.H. provided sufficient similar, admissible
evidence. Cann v. State, 958 So. 2d 545 (Fla. 4th DCA 2007). Moreover,
M.R. testified at length regarding Grier’s admissions of conduct with
L.H., including his attempted digital insertion and public masturbation.
Grier never objected to M.R.’s testimony regarding these statements. As
such, even if L.H. had not testified, the jury would still have learned of
these acts.
As to the issue of unfair prejudice,3 Grier argues that the admission of
the collateral evidence became a “feature of the trial.” The trial court
needs to act as a “gatekeeper” and render evidence inadmissible when it
3In
McLean, the supreme court considered whether section 90.404(2)(b),
Florida Statutes, violates due process. In concluding that the statute did not
run afoul of the United States Constitution or the Florida Constitution, the
supreme court enumerated four non-exclusive factors for a trial court to
evaluate in assessing whether unfair prejudice to the defendant substantially
outweighs the probative value of evidence of prior molestations: (1) the
similarity of the prior acts to the charged acts, including the location, age, and
gender of the victims, and manner in which the acts were committed; (2) the
temporal proximity of the prior acts to the charged conduct; (3) the frequency of
the prior acts; and (4) the role of intervening circumstances. 934 So. 2d at
1262. We note that the trial court considered these factors when it permitted
L.R. and L.H. to testify at trial, although that court based its order admitting
the testimony on section 90.404(2)(a).
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would have a “prejudicial effect.” McLean, 934 So. 2d at 1261. Collateral
crime evidence becomes an impermissible “feature” where collateral act
evidence “overwhelms” evidence of the charged crime and becomes “an
impermissible attack o n th e defendant’s character or propensity to
commit crimes.” Samuels v. State, 11 So. 3d 413, 418 (Fla. 4th DCA
2009) (quoting Bush v. State, 690 So. 2d 670, 673 (Fla. 1st DCA 1997)).
M.R.’s testimony was longer and more detailed than the testimony of
both L.R. and L.H. combined. The State limited its questioning of the
collateral crimes witnesses to questions regarding Grier’s modus
operandi. Further, the fact that multiple collateral crime witnesses
testified is not per se error, where the collateral crimes are sufficiently
similar and probative of material issues. Peterson v. State, 2 So. 3d 146,
156 (Fla. 2009) (holding that it was not error to admit evidence of three
collateral crimes, so long as the evidence was relevant and not unduly
prejudicial). The supreme court has noted the following:
[I]t is not solely the quantity but also the quality and nature
of collateral crimes evidence in relation to the issues to be
proven that determines whether its admission has
“transcended the bounds of relevancy to the charge being
tried.”
Indeed, this Court repeatedly h a s affirmed the
admission of extensive collateral crimes evidence where that
evidence was wholly probative of material issues.
Conde v. State, 860 So. 2d 930, 946 (Fla. 2003). The State made few
references to the collateral witnesses in closing (all were in rebuttal), and
the trial court gave cautionary instructions throughout the trial to
prevent L.R.’s and L.H.’s testimony from becoming a feature. Hernandez
v. State, 15 So. 3d 901 (Fla. 4th DCA 2009).
For these reasons, we affirm the appellant’s convictions and sentence.
Affirmed.
FARMER, J., concurs.
WARNER, J., concurs specially with opinion.
WARNER, J., concurring specially.
Because the defense did not object to the testimony offered by M.R.
herself as to the sexual acts which Grier performed on M.R.’s sister and
L.H., I concur in the result. The graphic sexual act evidence had already
come in by the time the witnesses actually testified. But for that, I would
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have held that the Williams rule evidence, as presented, was unduly
prejudicial a n d dominated the trial.
Th e sexual acts that Grier
performed with the Williams rule witnesses, according to their testimony,
were far more disturbing than the kissing and touching of M.R. for which
Grier was being tried. Those differences would have required the court to
refuse admission as Williams rule evidence. See McLean v. State, 934 So.
2d 1248, 1259 (Fla. 2006):
[T]he similarity of the prior act and th e 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 b e “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 b a s e d on the prior sexual
misconduct.
Because the collateral sexual acts were far more extensive than the acts
of molestation, the trial court should have limited the scope of matters to
which the Williams rule witnesses could testify. Certainly, the approach
that Grier used on the witnesses, as well as the victim, was consistent,
and showed his method of operating. However, the court should have
limited testimony regarding the specific sexual acts which far exceeded
the charged offenses.
Nevertheless, because M.R. testified to all of the sexual acts without
objection, I too would affirm.
*
*
*
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No.
01-7886CF10A.
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Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant
Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and James J. Carney,
Sr. Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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