Manuel Alexandra Peralta- Morales v. State of Florida , 2014 Fla. App. LEXIS 11605 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MANUEL ALEXANDRA NOT FINAL UNTIL TIME EXPIRES TO
PERALTA- MORALES, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D13-3180
v.
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 30, 2014.
An appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.
Nancy A. Daniels, Public Defender, and Maria Ines Suber, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki, Assistant Attorney
General, Tallahassee, for Appellee.
SWANSON, J.
In this appeal from his conviction and sentence for lewd and lascivious
molestation of his six-year-old daughter, appellant claims the trial court abused its
discretion by (1) admitting collateral crime evidence over appellant’s objection;
and (2) denying appellant’s motion for mistrial based on repeated references to
inadmissible child hearsay during trial. We affirm the denial of appellant’s motion
for mistrial without further discussion. We also affirm the admission of the
collateral crime evidence for the reasons that follow.
During the state’s case-in-chief, the victim testified that she and her younger
sister, who lived in Kentucky with their mother and stepfather, traveled to Florida
to visit their father, appellant, in the summer. During this visit, the victim claimed
appellant touched her “middle part” under her pants with his hands and then put his
“middle part” inside her.
The state then called the lead detective who had conducted a recorded
interview with appellant, which was played for the jury after the trial court gave a
limiting instruction. During the interview, appellant claimed that before divorcing
the children’s mother, his wife performed oral sex on the victim and asked
appellant to do the same while the three of them were taking a shower. Appellant
also indicated that while he and his wife were having sex, the victim’s three-year-
old sister came into their bedroom, jumped on top of his wife, and started
“humping.” Appellant admitted touching the child’s buttocks. Later during the
interview, appellant admitted touching the victim’s vagina and the victim touching
his penis a few times while he was still married to the children’s mother.
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On appeal, appellant claims the trial court abused its discretion in admitting
the collateral crime evidence, over his objection, because it was not relevant,
similar, or proven by clear and convincing evidence. The collateral crime evidence
consisted of appellant’s own statement to law enforcement. Statements made by a
defendant either before or after the crime charged, even when they show the
commission of separate crimes or wrongs or cast the defendant’s character in a bad
light, are admissible if relevant to prove a material fact in issue. Hoefert v. State,
617 So. 2d 1046, 1050 (Fla. 1993); Swafford v. State, 533 So. 2d 270, 275 (Fla.
1988). Under section 90.404(2)(b)1., Florida Statutes (2010), “[i]n a criminal case
in which the defendant is charged with a crime involving child molestation,
evidence of the defendant’s commission of other crimes, wrongs, or acts of child
molestation is admissible and may be considered for its bearing on any matter to
which it is relevant.”
Contrary to appellant’s assertion, his admission to collateral crimes was
relevant, even if it was highly implausible, because it showed appellant’s
consciousness of guilt. See Delacruz v. State, 734 So. 2d 1116, 1122 (Fla. 1st
DCA 1999) (observing that defendant’s statement admitting that he could have
accidently touched the child’s vagina “a lot of times” when playing with her was
admissible as an admission by a party-opponent because a trier-of-fact could
conclude that defendant’s explanation that the touchings were accidental was so
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inherently implausible in light of other circumstances that it demonstrated a
consciousness of guilt). Thus, the admissibility of appellant’s statement did not
hinge on whether the collateral crimes were proven by clear and convincing
evidence.
Although section 90.404(2)(b) “broadly provides that evidence of the
defendant’s commission of other acts of child molestation is admissible regardless
of whether the charged and collateral offenses occurred in the familial context or
whether they share any similarity,” such evidence “remains subject to weighing
under section 90.403,” which requires the court to assess “whether the probative
value of evidence of previous molestations is substantially outweighed by the
danger of unfair prejudice.” McLean v. State, 934 So. 2d 1248, 1259 (Fla. 2006).
In making this determination, the court should consider all relevant factors
including (1) the similarity of the prior acts to the act charged regarding the
location 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 charged; (3) the frequency of the prior acts; and (4) the presence or lack of
intervening circumstances. Id. The court also must ensure that the evidence will
not become “a feature of the trial” or “confuse or mislead the jurors” and give an
appropriate cautionary instruction if it is requested. Id.4
Although there were dissimilarities in the manner in which the collateral and
charged acts of molestation were committed, they were all committed in
appellant’s home against appellant’s biological daughters when they were young
children. Moreover, the collateral acts of molestation were committed
approximately two years before the charged offense, which could be explained by
the intervening circumstance of appellant’s divorce from the children’s mother.
Finally, the trial court provided an appropriate cautionary instruction, and the
collateral crime evidence did not become a feature of the trial. Based on the above,
the trial court did not abuse its discretion in admitting the collateral crime
evidence.
AFFIRMED.
VAN NORTWICK and CLARK, JJ., CONCUR.
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