GEORGE HARLAN JAMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2008-01-16
No. 2D04-5789
NORTHCUTT, C.J., and KELLY and WALLACE, JJ., Concur.
973 So. 2d 1194 Florida District Court of Appeal, Second District (2008) Positive Treatment
Cited by 2 cases

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Synopsis

George Harlan James was convicted of capital sexual battery against a child victim based on testimony describing digital penetration incidents. The appellate court affirmed his conviction, finding that his objections to the victim's testimony were either premature or not properly preserved for appeal.


Holding

The court affirmed the conviction. Although the court agreed that allowing evidence of two distinct incidents with jury discretion to convict on either would constitute error, James's objection was premature because the victim had not yet testified that the first incident involved penetration at the time he objected. The second argument failed because James did not preserve the error by raising the specific legal ground (90.403 balancing test) at trial.


Headnotes

[1] An objection to evidence is premature if the witness has not yet testified to the facts that form the basis of the objection.

[2] A defendant's failure to present a specific legal argument to the trial court preserves that argument for appeal.

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Key Quotes

“We agree that it would have been error had the trial court allowed evidence of two distinct incidents of penetration and told the jury it could convict James for either... In such a scenario, some jurors might accept that one incident of penetration was proved, while others might determine that the other was proved, thus leading to a conviction even though the jury did not reach a unanimous decision on either incident.”

Establishes the court's recognition of the legal error that would result from allowing a jury to convict on alternative uncharged incidents without unanimity

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Facts & Procedural History

James was charged with capital sexual battery for digitally penetrating the vagina of his former neighbor when she was between 4 and 11 years old. The…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

George Harlan James appeals his judgment and life sentence for capital sexual battery. He raises two issues, neither of which was properly raised in the trial court. Accordingly, we affirm.

In December 2003, James was charged by amended information with two counts of capital sexual battery upon two child victims. Count I alleged that between January 1, 1975, and December 31, 1979, James digitally penetrated the vagina of his former neighbor, “a child 11 years of age or younger.” Count II alleged that between October 1, 1972, and January 1, 1973, James had sexual intercourse with his stepdaughter, a child under the age of eleven. James went to trial on count II and was acquitted of the charges involving his stepdaughter. James then went to trial on the charge involving his former neighbor. During this trial, the victim, a woman now in her thirties, testified that James abused her on two separate occasions. During her direct examination she first testified that James had massaged her vaginal area and had her hold his penis while she was sitting on the toilet in the bathroom of James’s home. She stated that she could have been as young as four or as old as six years of age when this occurred. She then testified about a second incident that occurred in James’s kitchen. She testified that during that incident James inserted two fingers into her vagina as she sat on his lap. When questioned regarding her age at the time of this incident, the victim stated she could have been as young as four, but she could have been as old as eleven. James objected to the testimony regarding the incident in the kitchen stating:

Mr. James is charged with one count, one crime. If you allow them to go into a second offense, this jury is not going to know which digital vaginal penetration they’re being asked to convict the defendant of. We just can’t have lots of digital penetrations and tell the jury to pick one.

The trial court overruled the objection stating, “[M]y ruling is January of whatever year to January of whatever year there is a thousand acts of digital penetration, they need only talk about one and they can still talk about á thousand, or they can charge a thousand and the jury gets to pick whatever it is they believe.”

James first argues that the trial court erred in permitting the victim to testify about the kitchen incident because the State had only charged him with a single count of sexual battery involving a single incident of digital penetration as opposed to a charge alleging the conduct as part of a pattern of behavior that occurred on one or more occasions. See, e.g., State v. Generazio, 691 So. 2d 609, 611 (Fla. 4th DCA 1997) (noting that in cases involving ongoing child abuse, where the victim is too young at the time of the alleged abuse to testify to the specific dates the abusive acts occurred, it is not improper for the information to allege that the abuse occurred on one or more occasions within a specific time period); compare State v. Dell’Orfano, 651 So. 2d 1213, 1216 (Fla. 4th DCA 1995) (stating that when it is reasonable and possible to distinguish between specific incidents or occurrences of abuse, each incident should be contained in a separate count of the charging document to avoid the potential of a non-unanimous jury verdict). James contends that allowing the jury to hear testimony regarding two distinct incidents of penetration that occurred at different times and places jeopardized its ability to render a unanimous verdict.

We agree that it would have been error had the trial court allowed evidence of two distinct incidents of penetration and told the jury it could convict James for either. See Perley v. State, 947 So. 2d 672, 674 (Fla. 4th DCA 2007). In such a scenario, some jurors might accept that one incident of penetration was proved, while others might determine that the other was proved, thus leading to a conviction even though the jury did not reach a unanimous decision on either incident. Nevertheless, we must reject James’s argument because at the point in the trial where he objected to what he characterized as a second incident involving penetration, the victim had yet to testify that the first incident involved penetration. Rather, she had testified only that James massaged her vaginal area. We therefore conclude James’s objection was premature, and the trial court properly overruled it, albeit for the wrong reason.1 James next argues that the trial court erred in admitting, over defense objection, testimony that he had sexually abused his stepdaughter for many years.2 James contends that this testimony should have been excluded under section 90.403, Florida Statutes (2004), because its prejudicial impact outweighed its probative value. Although he objected to his stepdaughter’s testimony, James did not argue that its probative value was substantially outweighed by the danger that it would unfairly prejudice the jury.3 For an issue to be preserved for appeal, the specific legal argument or ground to be argued on appeal must have been presented to the trial court. Perez v. State, 919 So. 2d 347, 359 (Fla.2005). Because the error raised on appeal was not preserved, it cannot provide a basis for reversal. Accordingly, James’s conviction is affirmed.

Affirmed.

NORTHCUTT, C.J., and KELLY and WALLACE, JJ., Concur. . It is evident that both defense counsel and the State anticipated the victim would testify that the bathroom incident involved penetration. It was defense counsel who eventually elicited that testimony from the victim on cross-examination, apparently not realizing that she had not testified as anticipated.

. The court excluded testimony regarding the charge for which James had been acquitted: sexual intercourse with his stepdaughter that allegedly occurred after she turned nine but before her tenth birthday. The court allowed testimony regarding acts, including sexual intercourse, that took place outside that time frame.

. James filed a motion in limine seeking, among other things, to exclude testimony regarding uncharged crimes and crimes for which he had been acquitted. The motion argues that testimony regarding uncharged conduct is not relevant or probative; however, it does not argue that if the testimony was admitted it would be unfairly prejudicial. Further, it appears that James either failed to obtain a ruling on his motion or, if he did obtain a ruling, failed to include it in the record on appeal. Thus, even if we could conclude that the motion fairly raised the issue argued on appeal, James’s failure to obtain a ruling waived it. See Tolbert v. State, 922 So. 2d 1013, 1017 (Fla. 5th DCA 2006) (holding that the failure to obtain a ruling on a pretrial motion in limine waived the objections raised in the motion unless those objections were made and ruled upon at trial when the evidence was offered).


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Citator

Cited By

  • Charles v. State (Fla. 2d DCA 2020)
    …lained the event as one continuous episode.");1 cf. Miller, 123 So. 3d at 597 ("[T]he assistant state attorney explained to the jury that it did not need to reach a unanimous verdict on all of the elements of the charged offense.");2 James v. State, 973 So. 2d 1194, 1195 (Fla. 2d DCA 2008) ("We agree that it would have been error had the trial court allowed evidence of two distinct incidents of penetration and told the jury it could convict James for either."); Perley, 947 So. 2d at 675. Charles' separate acts…
  • …dressed. See 28 U.S.C. § 2254(b)(2); Dallas v. Warden, 964 F. 3d 1285, 1307 (11th Cir. 2020) (“[A] federal court may skip over the procedural default analysis if a claim would fail on the merits in any event.”). suppress . . . .”) ; James v. State, 973 So. 2d 1194, 1196 n.3 (Fla. 2d DCA 2008) (defendant waived pretrial motion by failing “to obtain a ruling” on it); Tolbert v. State, 922 So. 2d 1013, 1017 (Fla. 5th DCA 2006) (defendant’s failure to “obtain[] a ruling from the trial court regarding his motion i…

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