Jonathon Glen Harrelson v. State of Florida , 146 So. 3d 171 ( 2014 )


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  •                                       IN THE DISTRICT COURT OF APPEAL
    FIRST DISTRICT, STATE OF FLORIDA
    JONATHON GLEN                         NOT FINAL UNTIL TIME EXPIRES TO
    HARRELSON,                            FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    Appellant,
    v.                                    CASE NO. 1D12-4187
    STATE OF FLORIDA,
    Appellee.
    _____________________________/
    Opinion filed September 12, 2014.
    An appeal from the Circuit Court for Gadsden County.
    Jonathan E. Sjostrom, Judge.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for
    Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
    General, Tallahassee, for Appellee.
    PER CURIAM.
    Jonathon Glen Harrelson appeals his conviction and sentence for lewd,
    lascivious or indecent assault on a child under 16 years of age. He argues that (1)
    he was convicted for conduct that was not proscribed at the time the conduct
    allegedly occurred, (2) the trial court erred by admitting collateral crime evidence
    without first finding it clear and convincing, and (3) the trial court erred by
    denying his post-verdict motion for mistrial after one juror indicated she did not
    agree with the guilty verdict. We affirm on the first and third issues, but reverse on
    the second issue for the reasons discussed below.
    In 2008, the State filed an Amended Information in Gadsden County,
    Florida, charging that Harrelson
    On various occasions between February 15, 1995, and
    August 1, 1998, did unlawfully handle, fondle or make
    an assault in a lewd, lascivious, or indecent manner upon
    L.A., a child under sixteen years of age, by Touching in a
    Lewd or Lascivious Manner the Genitals, Genital Area,
    or Buttocks of L.A. or Enticed the Child to so Touch
    Him, contrary to Section 800.04(1), Florida Statutes.
    The State timely filed a Notice of Evidence of Other Crimes stating it intended to
    introduce evidence showing that during the same time period, Harrelson committed
    similar acts on the same victim in Gulf County, Florida.
    Before commencing trial, the court considered the admissibility of the
    collateral crime, or Williams1 rule, evidence. See § 90.404(2)(b)1., Fla. Stat.
    (providing that in child molestation prosecutions, evidence a defendant has
    committed other acts of child molestation is admissible “and may be considered for
    its bearing on any matter to which it is relevant”). The State explained the victim
    would testify to an incident during which Harrelson grabbed her hand and made
    1
    Williams v. State, 
    110 So. 2d 654
     (Fla. 1959).
    2
    her touch his penis. The incident allegedly occurred at Harrelson’s mother’s home
    in Wewahitchka while Harrelson, the victim and her younger half-brother
    (Harrelson’s son with the victim’s mother) were spending the night, and the victim
    was sleeping on a pull-out couch. Defense counsel argued that under McLean v.
    State, 
    934 So. 2d 1248
     (Fla. 2006), the trial court was required to first determine
    whether the evidence of a collateral crime was clear and convincing, and if so, then
    to determine, under section 90.403, Florida Statutes, if the danger of unfair
    prejudice to Harrelson would substantially outweigh the probative value of the
    evidence.   Interestingly, counsel suggested it would be more efficient—and
    possibly would avoid “having a mini trial”—if the trial court were to assume,
    initially, the evidence was clear and convincing, and proceed with the 90.403
    analysis. The court obliged, and ruled it would not exclude the collateral crime
    evidence because of its “substantial similarity” to the charged conduct. But then
    the court further ruled it need not make a finding of clear and convincing evidence
    because the collateral crime involved the same victim, the same conduct and the
    same timeframe as the charged offense. The victim was permitted to testify at trial
    about the Wewahitchka incident, telling the jury it was the first time Harrelson
    molested her. Only then was Harrelson able to cross-examine the victim and put
    on a witness—his mother—who testified, though not unequivocally, that the pull-
    out couch in question had been given away before the alleged incident.
    3
    The trial court in this case erred in failing to find clear and convincing
    evidence of the collateral crime before admitting the evidence at trial.2 “[B]efore
    even considering whether to allow evidence of prior acts to be presented to the
    jury, the trial court must find that the prior acts were proved by clear and
    convincing evidence.” McLean, 
    934 So. 2d at 1262
     (emphasis added). This is so
    even if the collateral incident involves the same victim, contrary to the trial court’s
    ruling in this case. See, e.g., Elmer v. State, 
    114 So. 3d 198
    , 204-5 (Fla. 5th DCA
    2012) (instructing trial court on remand to make requisite clear-and-convincing
    finding before considering whether, in retrial of defendant on charges of sexual
    battery on a child less than twelve years old, to admit collateral evidence of
    defendant’s continued sexual abuse of victim after she turned twelve); Downs v.
    State, 
    40 So. 3d 49
    , 53 (Fla. 5th DCA 2010) (stating evidence defendant molested
    same victim subsequent to charged sexual battery, though incorrectly admitted as
    inextricably intertwined with the battery, may have been admissible under section
    90.404(2)(b)1., but “the trial court then would have been required to find that the
    2
    We decline the State’s invitation to make the McLean clear-and-convincing
    finding ourselves in the first instance. Although the State has given us case law
    indicating federal circuit courts of appeals do so, we know of no similar authority
    for Florida’s appellate courts. In any event, the record does not enable such a
    finding by this court for there is no proffered testimony for us to consider. We also
    reject the State’s contention that the collateral crime evidence was alternatively
    admissible as inextricably intertwined with the charged crime.
    4
    [subsequent] acts were proved by clear and convincing evidence”); Wightman v.
    State, 
    982 So. 2d 74
    , 76 (Fla. 2d DCA 2008) (same).
    “It is well-settled that the erroneous admission of collateral crimes evidence
    is presumptively harmful and may be found harmless only if the State establishes
    that there is no reasonable possibility that the error contributed to the verdict.”
    Jackson v. State, 39 Fla. L. Weekly D1217, D1219 (Fla. 1st DCA June 10, 2014)
    (and cases cited therein). The victim here—23 years old at the time of trial—
    testified she was seven years old when Harrelson and her mother divorced in
    January 1996. For more than two years thereafter, she and her half-brother visited
    Harrelson every other weekend. They usually stayed at the Gadsden County home
    of Harrelson’s father and stepmother where, the victim testified, Harrelson
    molested her during each visit.         She described the acts and surrounding
    circumstances in detail, though she could not specify the dates on which the acts
    occurred or how many incidents there were. The visitation and molestation ceased
    “a few months” before the victim moved with her mother and half-brother to Texas
    in August 1998. The house the victim remembered staying in was located near a
    lake; she identified the home when shown a photograph of it. Although the
    Harrelsons previously lived in another home at a different location, the victim
    testified the molestation did not occur there.
    5
    The State’s case against Harrelson rested on the victim’s credibility.
    Defense witnesses presented testimony explaining why the alleged molestation did
    not occur, or could not have occurred, as the victim claimed. The defense also
    presented arguably unassailable evidence showing that the Harrelsons did not
    move into their Lake Talquin home until late December 1997. While this evidence
    did not disprove that Harrelson molested the victim there, it significantly weakened
    her testimony. Because the victim’s credibility was the focal issue in this case, we
    cannot say there is no reasonable possibility the jury did not factor in the
    Wewahitchka collateral crime testimony in assessing her credibility and finding
    Harrelson guilty of the charged acts. See McLean, 
    934 So. 2d at 1263
     (approving
    use of collateral crime evidence admitted under section 90.404(2)(b) to corroborate
    alleged victim’s testimony where identity is not an issue).
    That said, we do not believe this conclusion mandates a new trial because
    the trial court did perform the section 90.403 “gatekeeping” analysis required
    under McLean. 3,4     See 
    id. at 1261-62
    .      Therefore, we reverse Harrelson’s
    conviction and remand for the trial court to conduct the clear-and-convincing
    inquiry McLean requires. If the State fails to prove the collateral crime, the court
    shall hold a new trial excluding the collateral crime evidence. Cf. Henrion v. State,
    3
    Harrelson does not assert otherwise.
    4
    The trial court also gave the appropriate cautionary instructions about collateral
    crime evidence to the jury. See McLean, 
    934 So. 2d at 1262
    .
    6
    
    895 So. 2d 1213
    , 1217 (Fla. 2d DCA 2005) (reversing convictions and remanding
    “for further proceedings which may include a new trial” where trial court admitted
    Williams rule evidence without first requiring State to prove collateral crime by
    clear and convincing evidence).
    REVERSED and REMANDED with directions.
    ROWE, MARSTILLER, and RAY, JJ., CONCUR.
    7
    

Document Info

Docket Number: 1D12-4187

Citation Numbers: 146 So. 3d 171

Judges: Rowe, Marstiller, Ray

Filed Date: 9/22/2014

Precedential Status: Precedential

Modified Date: 10/19/2024