GEORGE EUGENE CLINGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that evidence of a prior collateral homosexual offense was inadmissible because it was not relevant to any material fact in issue and served only to show the defendant's bad character.
Appellant was convicted of a lewd act after a child identified him and described the incident. Over objection, a police officer testified about a prio…
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HOBSON, Acting Chief Judge.
Appellant Clingan was charged and convicted by a jury of committing a lewd and lascivious act in violation of § 800.04 F.S.
During the trial the complaining witness, a twelve year old male child, positively identified Clingan and described the incident. He related that Clingan approached him, lured him to a secluded area, suggested homosexual acts with him, and then grabbed his leg twice before he could get away.
Over objection, the trial court permitted a police officer to testify regarding a previous homosexual encounter between Clin-gan and an intoxicated adult male which occurred in a city park some four months prior to the present incident. The officer did not testify that Clingan had initiated the act or that any threats had been made.
The State failed to meet its burden of demonstrating that the collateral offense was relevant to a material fact in issue. The two offenses were so dissimilar that evidence of the prior offense would not tend to prove motive, intent, absence of mistake, identity or a common scheme or design. The testimony of the collateral act merely showed the bad character of the defendant and his propensity to commit a homosexual act. Banks v. State, Fla.App.1st 1974, 298 So. 2d 543; Harris v. State, Fla.App.2d 1966, 183 So. 2d 291. See Williams v. State, Fla.1959, 110 So. 2d 654; Marion v. State, Fla.App.4th 1973, 283 So. 2d 53; Drayton v. State, Fla.App.3d 1974, 292 So. 2d 395.
In view of our conclusion, it is unnecessary to consider the other points of law raised on this appeal. The judgment and sentence are reversed and the cause remanded for a new trial.
BOARDMAN and GRIMES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wessel v. State, 968 So. 2d 634 (Fla. 2d DCA 2007)…e admission of such evi [*635] 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 c…
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Burns v. State, 326 So. 2d 195 (Fla. 4th DCA 1976)…en the two offenses was the alleged victim ? Agreeing that identity was an issue, it is my view that there is yet another critical criteria that was not met here — the two crimes were not similar. I would reverse upon authority of Clingan v. State, 317 So. 2d 863 (Fla.App. 2nd, 1975); Marion v. State, 283 So. 2d 53 (Fla.App. 4th, 1973).…
Authorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Harris v. State, 183 So. 2d 291 (Fla. 2d DCA 1966)
- Howard Banks v. State, 298 So. 2d 543 (Fla. 1st DCA 1974)
- Masse v. State, 292 So. 2d 395 (Fla. 3d DCA 1974)
- Drayton v. State, 292 So. 2d 395 (Fla. 3d DCA 1974)
- Marion v. State, 283 So. 2d 53 (Fla. 4th DCA 1973)