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Motion to Exclude Williams Rule Evidence

COMES NOW the Defendant, by and through his undersigned counsel, and hereby files this Motion to Exclude Williams Rule Evidence. In support thereof, defendant states as follows:

FACTS

1. The Client is charged with two counts of sexual battery and one count of lewd and lascivious molestation.
2. A trial in this matter is scheduled for September 30.
3. The alleged victim in this case, C.S., was between the ages of 9 and 11 years old at the time of the alleged offenses. She is not related to the Client by blood or marriage.
4. The offenses allegedly occurred between October and July.
5. On August 30, the State filed its First Notice of Other Crimes, Wrongs or Acts Evidence.
6. Pursuant to its Williams Rule Notice, the State intends to offer evidence of a prior allegation of sexual abuse against the Client, by D.R.
7. According to the Police Reports, and the deposition of the D.R., on the night of December 30 and 31, when D.R. was 13 years old, she was lying on a couch sleeping, when she was awakened by the Client, who was rubbing his foot on her breast.
8. During her deposition, D.R. could not recall whether she was touched underneath her clothes or on top of her clothes, but stated she did not recall “skin on skin.”
9. The Client was never arrested or charged with a crime relating to that offense.
10. According to the reports, a warrant was denied by Assistant State Attorney E. B.

MEMORANDUM OF LAW

The Williams Rule evidence should be excluded because of its potential for unfair prejudice pursuant to Section 90.403 F.S. “Before allowing Williams Rule evidence to be presented to the jury, the trial court must find that the State has proof the defendant committed the collateral acts by clear and convincing evidence.” McLean v. State, 934 So. 2d 1248, 1256 (Fla. 2006). Pursuant to Fla. Std. Jury Inst. 405.4, “Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue. The allegations by D.R. have not been proved by clear and convincing evidence, and should not be admitted.
The evidence of the collateral acts should also be excluded because it is not similar to the present case and its probative value is outweighed by the danger of unfair prejudice. In McLean, supra, the Florida Supreme Court stated that courts have relaxed the requirement for strict similarity between the charge and collateral offenses in the familial context, they have not extended the relaxed standard of admissibility to non-familial cases. Id. at 1258. The court stated that the less similar the prior acts were, the less relevant they are to the charged crime, and therefore the less likely they are admissible, and the more likely the probative value of the evidence would be outweighed by the danger of unfair prejudice to the defendant. Id. at 1259.
The McLean court outlined the factors that courts should evaluate when determining whether collateral crime evidence should be admitted as follows:
In assessing whether the probative evidence of previous molestation is substantially outweighed by unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior act; (4) the presence or lack of intervening circumstances. This is not exclusive. The trial court should also consider other factors unique to the case.

Id. at 1262.

Based on the factors outlined in McLean, the Williams Rule evidence should not be admitted. The acts are not at all similar to the charged crimes regarding the location of the offenses, and the manner in which the crimes were committed. The prior act allegedly occurred in D.R.’s home, and the charged acts allegedly occurred in the Client’s office and in his truck. The manner in which the crimes were committed are dissimilar in that D.R. alleges he touched her breast with his foot, and C.S. alleges penile-vaginal intercourse, oral sex, and touching of the defendant’s genitals. C.S. was allegedly between the ages of 9 and 11 at the time of the offenses, and D.R. was allegedly 13. The alleged offenses are at least 10 years apart in time. The prior act is alleged to have occurred only one time, and the charged acts are alleged to have been ongoing, over a two-year period.
In Strohm v. State, 985 So. 2d 640, 641-642 (Fla. 4th DCA 2008), the court used the factors enumerated in McLean, supra, and found the defendant’s prior conviction for rape was dissimilar and remote in time from the charged offense of capital sexual battery against his eight year old daughter, and should not have been admitted into evidence at his trial on the capital sexual battery charge. The court stated that the prior conviction occurred 17 years before the alleged sexual battery; involved a 12 year old victim who did not know the defendant, and involved a one time vaginal penetration of the victim, as opposed to another form of sexual abuse over several months, as was alleged in the sexual battery case. Id.
As in Strohm, supra, the Williams Rule evidence the State seeks to introduce herein is remote in time, is not at all similar to the charged offense, because the ages of the alleged victims are different, and the prior offense is an entirely different type of abuse than the charged offenses. Therefore, due to the dissimilarities between the Williams Rule evidence and the current charges, the evidence should not be admitted.
In Cann v. State, 958 So. 2d 545 (Fla. 4th DCA 2007),as in this case, the defendant was charged with sexual battery on a child less than 12 years of age, and lewd and lascivious molestation. The trial court allowed the child’s aunt to testify as to prior instances in which the defendant tried to grab her breasts or untie her bathing suit, when she was a teenager. Id. at 549. The court held that the Williams Rule evidence had no similarity to the charged crime, and none of the factors enunciated in McLean would support its admission. Id. The facts of this case are factually similar to those in Cann, in that the Client is alleged to have previously touched the breasts of D.R. when she was a teenager. Therefore, as in Cann, evidence that the defendant previously rubbed his foot on the breast of a 13 year old girl is not similar to the charged crime, and the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Therefore the evidence should not be admitted.

WHEREFORE, the Client respectfully requests this Motion be granted.