Defendant's conduct, committed as part of a “sexual mentor” sting operation initiated by a law enforcement cybercrime squad, constituted mere preparation and not overt acts leading to the commission of a sexual battery on a minor less than 12 years of age, and thus defendant could not be convicted of attempted sexual battery; arrangement to meet at restaurant and “get to know each other first” and, if either party felt uncomfortable for any reason, he or she could just walk away, was just a preliminary step to whatever followed, and, when defendant was arrested in the restaurant parking lot, he was approximately 60 miles and eight-to-ten hours away from the proposed sexual contact with the fictitious minor, so he did not have a realistic expectation of imminent contact with the minor. West's F.S.A. §§ 777.04(1), 794.011(2)(a).

State v. Duke, 709 So. 2d 580 (Fla. 5th DCA 1998)

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SIMILAR FACT EVIDENCE OF OTHER CRIMES (WILLIAMS RULE)  CAN BE ADMISSIBLE IN  FLORIDA SEX CASES  

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Florida Statute 90.404 (2)(b) 1. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

 

In the line of cases allowing Williams Rule evidence to corroborate the testimony of a child, it is important for there to be a special need to corroborate the child's testimony. This exception was established because the courts recognized the special problems inherent in proving these cases. There is rarely any corroborating evidence for the state to offer. Therefore,

if the state has ample corroborating evidence, the appellate courts frown on allowing the admission of this evidence under this exception.

 

Saffor v. State, 660 So.2d 668, (Fla. 1995):

Evidence of defendant's prior attempted lewd assault of his niece was not sufficiently similar to charged offense to be admissible where ages and genders of the two children were different and acts took place during different time frames, at different locations, and at different times of day. Although fact that collateral sex crime and charged offense both occur in familial context constitutes significant similarity for purposes of Williams rule, there must be some additional showing of similarity in order for the collateral sex crime

evidence to be admissible.

 

The Court also does not impose the same stringent similarity

requirements necessary for cases outside the familial context. Instead, the court adopts a "relaxed" similarity requirement: "We hold instead that when the collateral sex crime and the charged offense both occur in the familial context, this constitutes a significant similarity for purposes of the Williams rule, but that these facts, standing alone, are insufficient to authorize admission of the collateral sex crime evidence. There must be

some additional showing of similarity in order for the collateral sex crime evidence to be

admissible."

 

State v. Rawls, 649 So.2d 1350, (Fla. 1994):

Evidence of prior similar offenses was admissible to corroborate child victim's testimony even though offense did not occur within familial or custodial setting where evidence was strikingly similar to victim's testimony, and victim's credibility was at issue.  Familial relationship must be one in which there is recognizable bond of trust with defendant. Consanguinity and affinity are strong indicia of familial relationship but are not necessary. Defendant and victim need not reside in the same home, and familial relationship may exist where individual legitimately exercises parental-type authority over child or maintains custody of child on a regular basis. This case was decided on a motion for rehearing. This opinion revises the court’s previous opinion. The Supreme Court gives an excellent review of Florida case law as it relates to "Familial or custodial authority." The Court rules that "Where an individual legitimately exercises parental -type authority over a child or maintains custody of a child on a regular basis, a familial relationship may exist for purposes of the

admissibility of collateral crimes evidence under Heuring. The Court then rules that the facts of the instant case do not qualify as familial or custodial authority, but do qualify as strikingly similar. The Court then follows the lead of Charles Ehrhardt and rules that testimony can be used to corroborate the testimony of child victims even when they do not fall under familial or custodial authority heading.

 

Schwab v. State, 636 So.2d 3 (Fla. 1994):

In a sexual battery and murder prosecution, testimony from three boys aged eleven to fifteen was relevant to show identity, motive and opportunity among other things. All were short, had blond hair, all weighed less than one hundred pounds. Schwab ingratiated himself with the family of one of the witnesses, as he did with the instant victim, and attempted to befriend the others before offering them rides. He held each at knifepoint and admittedly cut the instant victim's clothes off with a knife. This case was decided on principles common to all cases. There was no unique analysis by virtue of the victim being a child. The Court also addresses the

"feature of the trial" issue.

 

Feller v. State 637 So.2d 911 (Fla. 1994):

In cases involving sexual battery within familial situation, evidence of other sexual batteries on another family member can be admitted to corroborate testimony of victim that defendant committed sexual abuse upon victim; however, the charged and collateral offenses must share some unique characteristic or combination of characteristics which sets them apart from other offenses. The charged offense involved allegations of several incidents of penile and digital penetration of the vagina while the child was unclothed inside the family dwelling. The collateral offense involved a single episode of touching on outside of the child's

clothing while she sat on the defendant's knee as they were fishing.

 

Duckett v. State, 568 So.2d 891 (Fla. 1990):

Testimony of petite 19 and 18 year old women concerning police officer's "passes" at them made while he was in patrol car, on duty, and in uniform was admissible similar fact evidence in prosecution of officer for sexual battery and first degree murder of 11 year old girl, relevant to establishing officer's mode of operation, identity, and common plan.  Testimony of 17 year old woman that she had voluntarily met police officer at remote area while he was on patrol and performed oral sex on him was not sufficiently similar to

facts in prosecution of officer for sexual battery and first degree murder of 11 year old girl

to be admissible but admission of testimony was harmless.

 

Beasley v. State, 518 So.2d 917 (Fla. 1988):

Testimony of victim's sister that defendant had committed lewd and lascivious assault

upon her was admissible in prosecution for attempted sexual battery and lewd and

lascivious assault to establish that defendant had opportunity to perform illegal acts on

victim, who was defendant's stepdaughter.

 

Heuring v. State, 513 So.2d 122 (Fla. 1987):

Evidence that the defendant charged with sexual battery of his stepdaughter had sexually battered his own daughter 20 years earlier was admissible in that the opportunity to sexually batter young children in a familial setting occurs only generationally and evidence was relevant to corroborate the victim's testimony.

This case involved a situation in which the defendant was accused of sexually molesting his step daughter between the ages of 7 and 12. The State offered Williams Rule evidence that the suspect sexually battered his daughter when she was between the ages of 7 and 15. The Williams Rule evidence involved acts that had

occurred approximately 20 years before the charged offense. The court first addressed the issue of remoteness in time. In holding that a 20 year span did not require exclusion of the evidence, the court stressed that the opportunity to sexually young children in the familial setting often occurs only generationally. The suspect had battered the children only when the opportunity arose. The court does not address the issue of what its ruling would be if the defendant had encountered several other opportunities yet failed to act

upon them. In holding that the similar fact evidence is relevant simply to corroborate the victim's testimony, the court noted the special problems encountered in cases involving sexual battery committed within the familial context. The court noted that the victim is typically the sole witness and corroborative evidence is scant. Credibility becomes the focal issue in the case. Although many courts have tried to stretch the similar fact evidence as to be relevant for modus operandi, common scheme or plan etc...the Heuring court feels that

the better approach is simply to treat it as corroborating the victim's testimony.  Understanding the rationale of this ruling will assist greatly in arguing it to the court as it applies to your case.