MARK SHIVELY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Shively was convicted of sexual battery on a child and appealed, arguing the trial court erred in admitting testimony about him kissing the victim and being seen naked with her. The appellate court affirmed, holding that evidence describing how the crime came to light and the circumstances in which it was discovered is admissible as relevant evidence when 'inextricably intertwined' with the underlying offense.
The court affirmed the conviction, holding that evidence describing how the crime came to light is generally admissible as relevant evidence even if it might otherwise be objectionable as prior bad act evidence when it is 'inextricably intertwined' with the underlying crime. Additionally, the court found that the naked incident, even if considered a prior bad act, was admissible because it was one of the events that led to discovery of the crime and Shively's arrest.
[1] Evidence describing the manner in which a criminal offense took place or how it came to light is generally admissible as relevant evidence, even if it might otherwise be…
[2] A prosecutor may recount testimony about a prior incident in closing arguments to fortify a theory of the case, such as the defendant setting up circumstances for sexual…
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Join FLexlaw to unlock all legal intelligence“Evidence necessary to describe the manner in which a criminal offense took place or how it came to light is generally admissible as relevant evidence even though it might otherwise be objectionable as prior bad act evidence because it is 'inextricably intertwined' with the underlying crime.”
Establishes the core legal principle allowing admission of evidence about how the crime came to light despite potential prior bad act objections.
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Join FLexlaw to unlock all legal intelligenceShively was charged with sexual battery upon a child by a person with familial or custodial authority. A third-party witness testified to seeing Shive…
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PER CURIAM.
In this appeal, Mark Shively argues that the trial court erred by admitting evidence showing that a third party witness saw him french-kissing the victim and that another witness saw him standing naked, talking with the minor victim in her home. He asserts that but for the admission of this testimony, the jury may not have reached a verdict of guilty of the first degree felony of sexual battery upon a child by a person with familial or custodial authority. We disagree-and affirm the conviction and sentence.
The french-kissing incident led to the victim’s disclosure to her mother and step-father that she had been sexually molested by Shively. Evidence necessary to describe the manner in which a criminal offense took place or how it came to light is generally admissible as relevant evidence even though it might otherwise be objectionable as prior bad act evidence because it is “inextricably intertwined” with the underlying crime. Griffin v. State, 639 So. 2d 966 (Fla.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995); Platt v. State, 551 So. 2d 1277 (Fla. 4th DCA 1989); Tumulty v. State, 489 So. 2d 150 (Fla. 4th DCA 1986), rev. denied, 496 So. 2d 144 (1986). The state would have been unreasonably hampered in explaining to the jury how the charged crime came to light without the step-father’s testimony describing the events that led to the victim’s disclosure of molestation.
Shively also asserts that the testimony of the victim’s brother that he saw Shively naked in the presence of the victim was unfairly prejudicial and improperly introduced because the defense was not given advance notice of the state’s plan to introduce evidence of this prior bad act. However, it appears that this incident was known to Shively’s counsel before trial, and, like the french-kissing incident, it could have been the subject of a motion in limine. We note further that a minor, in a familial setting, observing an adult relative nude, without more, does not necessarily constitute either a bad, perverse or illegal act.
Shively alternatively argues that even if the naked incident evidence was not a prior bad act, the prosecutor improperly used the incident as “prior bad act evidence” by suggesting in closing argument that the nude encounter “corroborates the fact that the defendant was engaged in unconsensual sexual acts with the victim.” We disagree with that characterization of the argument. The prosecutor recounted this testimony in closing argument primarily to fortify the theory that Shively, as part of his plan of being sexually involved with the victim, had set up circumstances where he and the victim would be alone in the family home. In addition, the brother’s disclosure of the nudity incident was also one of the events which led to the discovery of the crime and Shively’s arrest, and was therefore admissible as relevant evidence. See, Griffin v. State, 639 So. 2d 966, 968 (Fla.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).
The conviction and sentence are affirmed.
AFFIRMED.
W. SHARP, PETERSON and THOMPSON, JJ., concur.
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Dario Thomas v. State, 885 So. 2d 968 (Fla. 4th DCA 2004)…car keys were taken was inextricably intertwined with the theft of the automobile, one of the charges before the jury. The testimony was necessary to establish the entire context out of which the crime arose.” Id. at 969. See also Shively v. State, 752 So. 2d 84, 85 (Fla. 5th DCA 2000) (evidence necessary to describe the manner in which a criminal offense took place or how it came to light is generally admissible as inextricably intertwined with the underlying offense because, without this evidence, the sta…
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Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffin v. State, 639 So. 2d 966 (Fla. 1994)
- Tumulty v. State, 489 So. 2d 150 (Fla. 4th DCA 1986)
- Est. of Ravetti v. United States, 514 U.S. 1005 (U.S. 1995)
- Platt v. State, 551 So. 2d 1277 (Fla. 4th DCA 1989)
- Connelly v. Jodie F. Connelly, 551 So. 2d 1277 (Fla. 4th DCA 1989)