WALTER WESSEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Walter Wessel was convicted of lewd and lascivious molestation of his grandsons, but the Florida District Court of Appeal reversed and remanded for a new trial because the trial court improperly admitted evidence of Wessel's sexual orientation. The court held that such evidence was irrelevant and highly prejudicial, as there is no showing that homosexuality correlates with pedophilia.
The trial court erred by admitting evidence of Wessel's sexual orientation because such evidence was irrelevant and highly prejudicial. The error was not harmless because it may have caused the jury to view innocent conduct as criminal solely based on the defendant's sexual orientation, and the prosecutor explicitly suggested this connection in closing arguments.
[1] Evidence of a defendant's sexual orientation is irrelevant and prejudicial in a prosecution for lewd and lascivious molestation of a minor.
[2] The prosecution may not argue that a defendant's sexual orientation demonstrates criminal intent in a lewd and lascivious molestation case without evidence connecting the…
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“there is absolutely no showing that homosexuals as a group are disposed to engage in pederasty”
Establishes that evidence of sexual orientation lacks probative value in child molestation cases
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Join FLexlaw to unlock all legal intelligenceWessel was charged with inappropriately touching his two young grandsons during bath time and while tickling them. At trial, over objection, a State w…
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NORTHCUTT, Chief Judge.
Walter Wessel was convicted of two counts of lewd and lascivious molestation. Of the points raised in his appeal, we find merit in one — that the trial court erred by admitting evidence regarding Wessel’s sexual orientation. Accordingly, we reverse and remand for a new trial.
Wessel was charged based on allegations that he inappropriately touched his two young grandsons during bath time and while tickling them. At trial, and over objection, a State witness was allowed to testify that Wessel was homosexual. When urging the admission of this evidence, the prosecutor argued that Wessel’s sexual orientation was relevant to Wessel’s intent when touching his grandchildren. In closing arguments, the prosecutor suggested this connection to the jury by asserting that the defendant’s homosexuality was brought out at trial “because if the State needs to prove this touching is unchaste, part of his intent, part of what’s going through his mind, he is attracted to men.” However, the State offered no evidence of a connection between homosexuality and pedophilia.
This court has previously found reversible error in the admission of such evi dence. In a prosecution for committing a lewd and lascivious act on a minor, we held that evidence of the defendant’s previous homosexual encounter with an adult was irrelevant and highly prejudicial. Clingan v. State, 317 So. 2d 863 (Fla. 2d DCA 1975). And in a prosecution for a “crime against nature,” we reversed based on the admission of irrelevant evidence showing that the defendant was homosexual. Harris v. State, 183 So. 2d 291, 292 (Fla. 2d DCA 1966).
Likewise in this case, we conclude that the evidence was irrelevant and prejudicial. “[T]here is absolutely no showing that homosexuals as a group are disposed to engage in pederasty.” Sias v. State, 416 So. 2d 1213, 1217 (Fla. 3d DCA 1982). The Sias court concluded that the erroneous admission of a police officer’s testimony regarding the defendant’s sexual orientation was harmless because this fact was also established by properly admitted testimony of a codefendant. Here, on the other hand, the harmfulness of this irrelevant evidence was clear. It may well have caused the jury to believe that conduct it might have considered innocent was, instead, done with criminal intent solely because the defendant was homosexual. Indeed, wittingly or unwittingly, in her closing argument to the jury the prosecutor suggested just that. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986) (explaining that harmless error is found only when there is no reasonable possibility that error contributed to verdict).
Reversed and remanded for a new trial.
STRINGER and SILBERMAN, JJ., Concur.
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Loftin v. State, 991 So. 2d 402 (Fla. 5th DCA 2008)…nted or proffered demonstrating any connection between homosexuality or bisexuality and pedophilia. The defendant’s sexual orientation was not relevant, and the trial court erred in admitting the evidence and allowing such argument. Wessel v. State, 968 So. 2d 634, 635 (Fla. 2d DCA 2007); Sias v. State, 416 So. 2d 1213, 1217 (Fla. 3d DCA 1982). Despite our holding that it was erroneous to admit evidence relating to Lof-tin’s sexual preference, we conclude it was harmless. After examining the entire record, w…
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Palmer v. Sec'y, Dep't of Corr. (Polk County) (M.D. Fla. 2020)…gests no basis for an objection. With regard to the testimony that Mr. Palmer said that he was gay during a conversation with Leslie Bozeman’s husband, it appears the testimony may have been improper under Florida law. See, e.g., Wessel v. State, 968 So. 2d 634 (Fla. 2d DCA 2007) (evidence regarding defendant’s sexual orientation was irrelevant and prejudicial in prosecution for lewd and lascivious molestation of child). Nevertheless, after Leslie Bozeman testified that Mr. Palmer joked that he was gay an…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Sias v. State, 416 So. 2d 1213 (Fla. 3d DCA 1982)
- Harris v. State, 183 So. 2d 291 (Fla. 2d DCA 1966)
- Clingan v. State, 317 So. 2d 863 (Fla. 2d DCA 1975)