Date: 06-15-2022

Case Style:

Paul Moore vs State of Florida

Case Number: 19-2209

Judge:

B.L. THOMAS

Tatiana Salvador

Court:

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

On appeal from The CCircuit Court for Duval County

Plaintiff's Attorney: Ashley Moody, Attorney General, Tallahassee, Florida, and Rick A.
Buchwalter, Assistant Attorney General, Tampa, Florida

Defendant's Attorney:

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Description:

Tallahassee, Florida - Criminal Defense lawyer represented defendant with a sexual battery by a person over the age of eighteen on a person under the age of twelve charge.

Child Sexual Predator

Appellant
was also charged with lewd or lascivious molestation and showing
pornography to the victim. He is the biological father of the victim.
At trial, the victim testified that she first met Appellant when
she was eleven. Appellant bought her clothes and took her to get
her hair done. When she stayed with Appellant, she and Appellant
slept in the same bed. She testified that on three occasions when
she was asleep, Appellant touched her breasts and committed
vaginal-penile penetration. The victim also stated that once, after
she fell asleep while watching television, Appellant woke her and
committed vaginal-penile penetration. Although he did not
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threaten the victim, Appellant told her that if she told anyone, he
would go to jail and she would not have a father in her life.
Appellant’s other daughters, B.D. and A.D., testified to his
other acts of child molestation. When they visited Appellant, they
also slept in the bed with him. B.D. testified that when she was
between five and seven years old, Appellant rubbed her vagina
with his hands while she was in his bed. She stated this happened
every time she visited. A.D. testified that when she was fourteen,
she was sleeping in Appellant’s room when Appellant touched her
vagina with his hands and attempted penile penetration.
A jury found Appellant guilty as charged on all counts. He was
sentenced to life imprisonment and designated a sexual predator.
Appellant argues that the trial court violated his due process
rights by failing to hold a competency hearing and failing to make
an independent determination of his competency. He also asserts
that the trial court erred by limiting his confrontation rights under
section 794.022(2), Florida Statutes, admitting evidence of
insufficient similar act evidence, and admitting child hearsay that
was not clearly reliable. We disagree and affirm.
I. Competency
“In determining whether a defendant is competent to proceed,
the test is whether the defendant has ‘sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual
understanding of the proceedings against him.’” SantiagoGonzalez v. State, 301 So. 3d 157, 169 (Fla. 2020) (quoting Hill v.
State, 473 So. 2d 1253, 1257 (Fla. 1985)). Once a court finds a
defendant may not be competent to proceed, due process requires
the court to order an evaluation, hold a hearing, independently
evaluate the defendant’s competency, and enter a written order on
competency. Sheheane v. State, 228 So. 3d 1178, 1180–81 (Fla. 1st
DCA 2017); Hendrix v. State, 228 So. 3d 674, 676 (Fla. 1st DCA
2017).
Throughout the proceedings, Appellant’s competency was
carefully monitored by the trial court. The trial court appointed an
expert to evaluate Appellant in 2017 and 2018. Appellant was
uncooperative, but the expert concluded that Appellant was
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competent based on his observations and a review of collateral
evidence. On the eve of trial in 2019, defense counsel moved for a
continuance to explore issues related to Appellant’s competency.
Defense counsel did not file a suggestion of mental incompetence
under Florida Rule of Criminal Procedure 3.210. An expert met
with Appellant and summarized his confidential evaluation to
defense counsel. Defense counsel reported she no longer had
concerns about Appellant’s competency.
At a hearing, defense counsel advised there were no
competency issues, and she had successfully consulted with
Appellant about his case. The trial court correctly noted that a
stipulation to competency was not sufficient for the record. See
Dougherty v. State, 149 So. 3d 672, 678 (Fla. 2014). The parties
stipulated to the trial court accepting the expert’s written
document, which the expert emailed to the court later that day, in
place of live testimony. The expert summarized his meeting with
Appellant and opined Appellant was competent to proceed. The
trial court independently determined, through a review of the
record, Appellant’s nearly ninety letters to the court, prior expert
reports from 2017 and 2018, and the trial court’s own observations
from previous interactions with Appellant, that Appellant was
competent to proceed to trial. Thus, the trial court properly
determined that Appellant was competent to proceed to trial. See
Santiago-Gonzalez, 301 So. 3d at 169; see Sheheane, 228 So. 3d
at 1180–81.
II. Rape Shield Statute
Appellant argues the trial court committed reversible error by
excluding evidence of the victim’s prior consensual sexual activity
that would have given context to the circumstances under which
the victim first reported the allegations against Appellant. The
victim first reported Appellant’s alleged crimes during a meeting
with her mother and teacher to discuss the victim’s sexual activity
with a classmate. Appellant asserts that by excluding the evidence
of the victim’s consensual sexual activity, the trial court deprived
him of his right to full and fair cross-examination to show that the
victim lied when she accused Appellant.
Section 794.022, Florida Statutes (2016), codifies Florida’s
relevancy rules as applied to the sexual behavior of victims of
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sexual crimes. Teachman v. State, 264 So. 3d 242, 246 (Fla. 1st
DCA 2019) (citing Carlyle v. State, 945 So. 2d 540, 546 (Fla. 2d
DCA 2006)). The statute states:
Specific instances of prior consensual sexual activity
between the victim and any person other than the
offender may not be admitted into evidence in a
prosecution under s. 787.06, s. 794.011, or s. 800.04.
However, such evidence may be admitted if it is first
established to the court in a proceeding in camera that
such evidence may prove that the defendant was not the
source of the semen, pregnancy, injury, or disease; or,
when consent by the victim is at issue, such evidence may
be admitted if it is first established to the court in a
proceeding in camera that such evidence tends to
establish a pattern of conduct or behavior on the part of
the victim which is so similar to the conduct or behavior
in the case that it is relevant to the issue of consent.
§ 794.022(2), Fla. Stat. (emphasis added).
We note that the exception in section 794.022(2) is not
applicable to the present facts. But “[a] defendant’s ‘right to full
and fair cross-examination, guaranteed by the Sixth Amendment,
may limit [section 794.022]’s application when evidence of the
victim’s prior sexual conduct is relevant to show bias or motive to
lie.’” Teachman, 264 So. 3d at 246 (quoting Kaplan v. State, 451
So. 2d 1386, 1387 (Fla. 4th DCA 1984)); see Lewis v. State, 591 So.
2d 922, 923 (Fla. 1991). “[A] trial court must weigh and balance
the protection of the Rape Shield Statute with the defendant’s
constitutional right to be afforded with an ‘adequate and fair
opportunity to show bias and motive of the victim’ without delving
into the sexual nature of her relationship with another.” Arroyo v.
State, 252 So. 3d 374, 377 (Fla. 3d DCA 2018) (quoting Marr v.
State, 494 So. 2d 1139, 1143 (Fla. 1986)).
Appellant asserted two theories of defense: the victim lied to
her mother so her mother would not be upset, or the victim lied to
“avoid having Appellant learn that [she] was sexually active with
a boyfriend and that her mother knew that to be true.”
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Appellant was able to adequately develop his theory of defense
without delving into the victim’s prior sexual relations. See Arroyo,
252 So. 3d at 378 (citing Marr, 494 So. 2d at 1139) (holding
defendant’s Sixth Amendment rights were not violated where the
defense was able to develop his theory of defense that victim had a
motive to lie about having consensual sex with defendant because
she wanted to resume her relationship with someone else). During
cross-examination, the defense developed the fact that the victim
disclosed Appellant’s actions to her mother after her teacher “had
a separate issue that [she] wanted to talk to [the victim] about.”
The victim testified she was scared to tell her mother about “that
issue” because she was worried that her mother would be mad. The
victim also testified that she did not tell the defense’s witness that
her mother told her to fabricate the allegations against Appellant.
In addition, the defense’s witness testified that the victim
stated her mother instructed her to fabricate the allegations. Thus,
the trial court did not err because Appellant adequately presented
his theory of defense without contravening the statute, and
Appellant’s Sixth Amendment rights were not violated. See Arroyo,
252 So. 3d at 378 (citing Floyd v. State, 503 So. 2d 956, 957 (Fla.
1st DCA 1987)); cf. Lewis, 591 So. 2d at 923 (holding that
application of rape shield law was erroneous where it interfered
with defendant’s ability to develop his theory of defense).
III. Williams Rule Evidence
Appellant argues the trial court erred by admitting Williams*
rule evidence that was not substantially similar and that became
a feature of the trial. We review the admissibility of evidence for
an abuse of discretion. Stewart v. State, 147 So. 3d 119, 123 (Fla.
1st DCA 2014) (citing Easterly v. State, 22 So. 3d 807, 814 (Fla. 1st
DCA 2009)).
This Court held:
The Legislature has adopted a “relaxed standard of
admissibility” with regard to Williams rule evidence in
* Williams v. State, 110 So. 2d 654 (Fla. 1959).
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child molestation cases. See Easterly, 22 So. 3d at 814.
That standard provides:
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.
§ 90.404(2)(b) 1., Fla. Stat. (2010).
Id. at 123–24.
Under the relaxed standard of admissibility, relevance of
Williams rule evidence will not primarily turn on an analysis of
the similarity of the offenses. See id. (citing McLean v. State, 934
So. 2d 1248, 1259 (Fla. 2006)). However, the similarity of the
offenses can assist in deciding the relevancy of the evidence and
any analysis under section 90.403, Florida Statutes. Id. (citing
Easterly, 22 So. 3d at 815).
The trial court found that the testimony of A.D. and B.D. was
proven by clear and convincing evidence. Appellant focuses on the
dissimilarities of the evidence in arguing that the evidence was
more prejudicial than probative, but “‘similar’ does not mean
‘exactly the same.’” See Stewart, 147 So. 3d at 124 (quoting Adkins
v. State, 605 So. 2d 915, 919 (Fla. 1st DCA 1992)). Here, the victims
were biological children of Appellant, and all the acts happened
while they were asleep in Appellant’s bed. All three victims
testified that Appellant touched their vaginas. That the acts
against the victim also involved penile penetration is not
dispositive. See id. (quoting Adkins, 605 So. 2d at 919). A.D. and
the victim were close in age, and the incidents happened during
the same time period. And although B.D. alleged an act further
removed in time to the acts charged, the trial court noted that the
lack of frequency was another similarity. The crimes occurred
infrequently over a long time period, in part because the daughters
did not have consistent contact with Appellant. Thus, the trial
court correctly considered all the factors in determining that the
evidence was admissible.
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The evidence also did not become an impermissible feature of
the trial. Here, the State did not unduly focus on the evidence in
its arguments. In addition, the jury was instructed on multiple
occasions as to the limited purpose of the Williams rule evidence.
IV. Child Hearsay
Appellant argues the trial court abused its discretion by
determining that the victim’s interview with the Child Protection
Team had sufficient safeguards of reliability where the victim did
not clearly understand the concepts of “truth” or “lie,” reported the
abuse late, and was repeatedly led by the interviewer. But
Appellant did not preserve the issue for appeal as he did not
contest the sufficiency of the findings below. See McCloud v. State,
91 So. 3d 940, 940–41 (Fla. 1st DCA 2012) (citing Elwell v. State,
954 So. 2d 104 (Fla. 2d DCA 2007) (“[B]ecause the appellant did
not raise the issue in the trial court, where a claimed deficiency in
the written order could be corrected, the issue has not been
preserved for appeal.”).
Furthermore, even if the child hearsay were inadmissible,
which it was not, the victim testified at trial and was subject to
cross-examination. There is no reasonable possibility that it
contributed to the verdict. See State v. DiGuilio, 491 So. 2d 1129
(Fla. 1986)

Outcome: AFFIRMED.














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