JOHNNY ABLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1987-05-08
No. BO-38
ERVIN and WIGGINTON, JJ., concur.
506 So. 2d 1150 Florida District Court of Appeal, First District (1987) Caution
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Johnny Ables was convicted of capital sexual battery against his niece based largely on the victim's testimony. The Florida District Court of Appeal reversed because the trial court improperly admitted testimony from Ables' stepdaughter about dissimilar incidents, which constituted inadmissible propensity evidence rather than admissible similar fact evidence.


Holding

The testimony was inadmissible because there were insufficient identifiable points of similarity between the stepdaughter's testimony (looking at her vagina without contact) and the alleged victim's testimony (fondling, digital penetration, oral sex, and intercourse). The dissimilarity made the evidence irrelevant to any material fact in issue and thus it constituted impermissible propensity evidence. The error was reversible because similar fact evidence in sex crime cases is presumed harmful, and the prosecution's case lacked overwhelming proof of guilt.


Headnotes

[1] Similar fact evidence of other crimes is inadmissible when the acts described are not sufficiently similar to the charged offense to be relevant to a material fact in iss…

[2] The admissibility of similar fact evidence in sex crime cases requires identifiable points of similarity and a sufficient level of uniqueness between the other acts and t…

Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”

Sets forth the legal standard under Florida Statute § 90.404(2)(a) governing admissibility of similar fact evidence

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Ables was accused of sexually battering his niece beginning when she was nine years old and continuing until age eleven, including fondling, digital p…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.

Opinion of the Court
MILLS, Judge.

MILLS, Judge.

Abies appeals from his conviction and sentence for capital sexual battery. We find the trial court erred in allowing certain testimony as similar fact evidence and reverse.

Abies was convicted by a jury of capital sexual battery. He was sentenced to life in prison with a 25-year minimum mandatory term. The State alleged that Abies sexually battered his niece beginning when she was nine years old and continuing until she was eleven. There were no eyewitnesses to any of the alleged criminal episodes. Nor was there any physical evidence. The alleged victim did not tell anyone about the incidents until 1984 or 1985, when she told her mother. The alleged victim testified as follows. She spent weekdays at Abies’ home in Pensacola before and after school beginning in 1979 when she was in the third grade. Her father would drop her off there on his way to work about an hour before she went to school. He would pick her up in the afternoon. One day, when she was nine years old, Abies accused her of having sex with his stepson. Abies said that if she refused to have sex with him, he would tell others about her relationship with his stepson. A few mornings a week after that, while Abies’ wife was asleep in the house, Abies would go into a bathroom with the alleged victim, fondle her, and insert his fingers into her vagina. He would also take her into a utility room and engage in oral sex. These activities continued until the alleged victim left Pensacola, when she was in the fifth grade, to live with her mother in the State of Washington. The alleged victim later returned to Florida and lived with the Abies family. It was then that Abies began having sexual intercourse with her in his home. This continued until 1981, when the alleged victim went to live with her father.

The trial court allowed the jury to hear testimony that the State contended was admissible as similar fact evidence. Among the witnesses providing such testimony was Abies’ stepdaughter who testified, over objection, that approximately 12 years earlier, when she was 11 years old and living with her mother and Abies, she and another child were “playing around” when Abies picked her up in his car, drove to an isolated area in Pensacola, pulled down her pants, and told her he wanted to see if she was still a virgin. She further testified that Abies did not touch her vagina or fondle her. He looked at her vagina, told her to get dressed, and they went home.

The stepdaughter also testified concerning an earlier incident that occurred when she was living with Abies and her mother in Louisiana. According to the stepdaughter, one night when her mother was out of town, Abies woke her up and asked her to remove her clothes. She refused and asked to call her mother. Abies told her the telephone was out of order and that if she told her mother what had happened he would tell her mother that she had her hand on his “private parts.”

Section 90.404(2)(a), Florida Statutes (1985), provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Abies argues his stepdaughter’s testimony was not relevant to a material fact in issue, only showed bad character and propensity, and hence was not admissible as similar fact evidence.

The State contends the testimony was admissible because it was relevant to prove identity, intent,1 plan and design, lack of inadver-tance, and a pattern of criminality. The Williams Rule,2 codified in the above statute, does not prohibit evidence of bad character or propensity if the evidence is otherwise relevant to a material fact in issue. But relevance usually depends on identifiable points of similarity and a sufficient level of uniqueness. Drake v. State, 400 So. 2d 1217 (Fla.1981); Potts v. State, 427 So. 2d 822 (Fla. 2d DCA), rev. denied, 434 So. 2d 888 (Fla.1983).

Here, there was no testimony that Abies ever fondled or engaged in sex acts with his stepdaughter as the alleged victim testified he did with her. Given the patent difference between the acts described by the stepdaughter and those described by the alleged victim, we conclude that the stepdaughter’s testimony was irrelevant to any material fact in issue and therefore inadmissible. See Coler v. State, 418 So. 2d 238 (Fla.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983).

Having concluded that admission of the testimony in question was error, the question becomes whether it is reversible error. Because such error is presumed harmful, Straight v. State, 397 So. 2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 556 (1981), and in view of the less than overwhelming proof of guilt adduced at trial, we conclude it is. Cf. McKinney v. State, 462 So. 2d 46 (Fla. 1st DCA 1984).

In cases involving sex crimes against children, similar fact evidence has often been held admissible as relevant to prove a pattern of criminality. Cotita v. State, 381 So. 2d 1146 (Fla. 1st DCA 1980), rev. denied, 392 So. 2d 1373 (Fla.1981). But the dividing line between pattern of criminality and propensity is ill-defined. Heuring v. State, 495 So. 2d 893 (Fla. 1st DCA 1986) (Smith, J. specially concurring). It would stand logic on its head to conclude that acts as dissimilar as those described by Abies’ stepdaughter and those described by the alleged victim tend to prove a pattern of anything. We agree with Professor Ehrhardt’s admonition:

The difference, if any, between “pattern of criminality” and “propensity” is difficult to define; if Florida courts are to continue to apply [the pattern of criminality] line of cases they must be scrupulous in not allowing this line of cases to swallow the rule.

Ehrhardt, Florida Evidence § 404.17 (2d. Ed.1984).

Having concluded that admission of the stepdaughter’s testimony was reversible error, we find it unnecessary to reach the other issues raised on appeal.

REVERSED.

ERVIN and WIGGINTON, JJ., concur. . Intent and state of mind are not issues in a sexual battery prosecution. Coler v. State, 418 So. 2d 238 (Fla.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983).

. Williams v. State, 110 So. 2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Adkins v. State, 605 So. 2d 915 (Fla. 1st DCA 1992)
    …t his ex-wife had persuaded the children to lie “because she didn’t want me around. She’s afraid of me.” Nevertheless, the jury found appellant guilty as charged and he was sentenced to concurrent life terms on each count. Citing to Abies v. State, 506 So. 2d 1150 (Fla. 1st DCA), rev. denied, 513 So. 2d 1063 (Fla.1987), in which this court reversed a conviction for sexual battery upon a child because the panel concluded that the “similar fact evidence” admitted at trial was not sufficiently similar to the cha…
  • Paul v. State, 660 So. 2d 752 (Fla. 1st DCA 1995)
    …olestations [of five children not in issue in the case] since they were not sufficiently similar to the charged offenses. Id. at 125. See also Saffor v. State, 660 So. 2d 668 (Fla.1995); Hayes v. State, 660 So. 2d 257 (Fla.1995). In Ables v. State, 506 So. 2d 1150 (Fla. 1st DCA 1987), the defendant was charged with sexual battery on his niece. The defendant’s stepdaughter testified that the defendant had earlier pulled her pants down, telling her he wanted to see if she was still a virgin, and, still earlier,…

Authorities Cited (13 total)

View all 13 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw