JOHNNIE CLIFFORD MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnnie Moore appealed his convictions for lewd and lascivious molestation of a child under twelve and lewd and lascivious exhibition. The First District Court of Appeal affirmed, rejecting three challenges regarding admission of similar fact evidence, hearsay statements, and impeachment with prior criminal record.
The trial court properly admitted all three categories of evidence. The similar fact evidence was properly admitted because the prior molestation shared numerous similarities with the charged offense. The hearsay statements were properly admitted because the child testified, the defendant received notice, and the trial judge found the statements reliable and not cumulatively prejudicial. The prior criminal record was properly admitted to impeach Moore's credibility after he introduced his own exculpatory hearsay statements into evidence.
[1] Similar fact evidence of prior child molestation may be admissible in criminal cases if the prior act bears on a relevant matter and is substantially similar to the charg…
[2] Hearsay statements of a child victim are admissible if the child testifies, the defendant receives proper notice, the statements are found reliable, and their probative v…
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Join FLexlaw to unlock all legal intelligence“The similarity of the previous episode of child molestation to the charged offense is the key consideration in admitting such evidence.”
Establishes the standard for admitting similar fact evidence in child molestation cases under section 90.404(2)(b).
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Join FLexlaw to unlock all legal intelligenceMoore was convicted of lewd and lascivious molestation of a child under twelve years of age and lewd and lascivious exhibition. At trial, the judge ad…
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PER CURIAM.
Johnnie Clifford Moore appeals his convictions and sentences for lewd and lascivious molestation on a child under twelve years of age by a person eighteen or older and for lewd and lascivious exhibition. Moore raises three issues on appeal. We affirm.
Moore first argues the trial judge abused his discretion when he allowed similar fact evidence of a prior incident of child molestation to be heard by the jury. In criminal cases dealing with child molestation, a defendant’s commission of other acts of child molestation may be considered for its bearing on any matter that is relevant. § 90.404(2)(b), Fla. Stat. (2005).
The admission of such evidence, however, is still subject to the relevancy requirements of section 90.403, Florida Statutes. See McLean v. State, 934 So. 2d 1248, 1251 (Fla.2006).
The similarity of the previous episode of child molestation to the charged offense is the key consideration in admitting such evidence. Id. at 1259.
In this case, as the previous act of child molestation shared numerous similarities with the charged offense, the trial judge did not abuse his discretion in admitting the evidence.
Next, Moore argues the trial judge abused his discretion in allowing three different witnesses to testify to the child’s hearsay statements. Section 90.803(23), Florida Statutes, governs the admission of such statements. Here, the child testified, the defendant received proper notice, and the trial judge specifically found that the statements were reliable. See § 90.803(23), Fla. Stat. (2005). The trial judge did not abuse his discretion in finding the probative value of the statements not substantially outweighed by the danger of presenting cumulative evidence. See Pardo v. State, 596 So. 2d 665, 668 (Fla.1992); § 90.403, Fla. Stat. (2005).
Lastly, Moore contends the trial judge erred in allowing the jury to learn of his prior criminal record. Although Moore did not testify at trial, he succeeded in introducing exculpatory statements made to the police under the rule of completeness. See § 90.108, Fla. Stat. (2005).
When a defendant successfully introduces his hearsay statements into evidence, the credibility of the declarant may be attacked just as if the declarant had testified as a witness. See § 90.806(1), Fla. Stat. (2005); see also Kelly v. State, 857 So. 2d 949, 950 (Fla. 4th DCA 2003) (allowing impeachment with prior criminal record because defense counsel, on cross-examination, elicited exculpatory statements defendant had made to police officer); Werley v. State, 814 So. 2d 1159, 1163 (Fla. 1st DCA 2002) (allowing introduction of husband’s prior criminal record for impeachment purposes due to wife testifying to husband’s exculpatory hearsay statements).
See generally 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 806.04(2)(b) (Joseph M. McLaughlin ed., 2d ed. 2002) (“A defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions.”).
Accordingly, the trial judge properly allowed the State to impeach Moore with his prior criminal record.
AFFIRMED.
BROWNING, C.J., KAHN and DAVIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Easterly v. State, 22 So. 3d 807 (Fla. 1st DCA 2009)…trial court erred in admitting evidence of the other acts of sexual abuse he perpetrated against the victim. A trial court’s decision to admit similar fact evidence, or Williams rule evidence, is reviewed for abuse of discretion. See Moore v. State, 943 So. 2d 296, 297 (Fla. 1st DCA 2006) (finding no abuse of discretion in the admission of evidence of similar acts of child molestation); Hodges v. State, 885 So. 2d 338, 357 (Fla.2004) (stating, generally, that the admission of collateral crime evidence is with…
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Kaczmar v. State, 104 So. 3d 990 (Fla. 2012)…clarant at any time inconsistent with the declarant’s hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it. As the First District Court of Appeal found in Moore v. State, 943 So. 2d 296, 297 (Fla. 1st DCA 2006), pursuant to section 90.806(1), once a defendant introduces his or her hearsay statements into evidence by invoking the rule of completeness, “the credibility of the declarant may be attacked just as if the declarant had tes…
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Anderson v. State, 229 So. 3d 383 (Fla. 4th DCA 2017)…substantially outweighed by the presentation of similar evidence of the out-of-court statement by multiple witnesses, especially since the defense counsel was allowed to attack the credibility of several of the witnesses at trial.”); Moore v. State, 943 So. 2d 296, 297 (Fla. 1st DCA 2006) (the trial court did not abuse its discretion in allowing three witnesses to testify concerning the child victim’s hearsay statements where the trial court found that the probative value.of the statements was no.t substantia…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pardo v. State, 596 So. 2d 665 (Fla. 1992)
- McLEAN v. State, 934 So. 2d 1248 (Fla. 2006)
- Worland v. State, 814 So. 2d 1159 (Fla. 1st DCA 2002)
- Kelly v. State, 857 So. 2d 949 (Fla. 4th DCA 2003)