County Criminal Court:  CRIMINAL LAW – Jury Trial/Evidence - admission of prior bad acts – anticipatory rehabilitation – admission of statement that appellant was on house arrest or probation – improper closing argument – trial court erred in admitting evidence – no error to admit uncharged conduct occurring at time of instant offense under inextricably intertwined theory – error to admit prior battery offense under theory of anticipatory rehabilitation – State exceeded parameters of anticipatory rehabilitation – improper to admit evidence that appellant was on probation – State’s inflammatory comments during closing arguments were improper as they invited jury to make a finding of guilty for reason other than evidence presented – Conviction reversed; case remanded for new trial.  Wolfe v. State, No. 01-09319 (Fla. 6th Cir. App. Ct. April 28, 2003).









vs.                                                                               APPEAL NO:  CRC01-19319CFANO







Opinion filed April _____, 2003.


Appeal from a decision of the

County Court for Pinellas County;

Amy M. Williams, Judge.


Joy K. Goodyear, Esquire

Assistant Public Defender.


C. Marie King, Esquire

Assistant State Attorney.




In the lower court, Wolfe was convicted by jury verdict of battery against his ex-wife.  He was sentenced to one year probation with 60 days county jail as a condition of that probation, to be served on work-release.  On appeal, he raises three issues.  First, he asserts that the trial court erred in permitting the State to introduce evidence of an uncharged attempted sexual battery (i.e., events surrounding the charged battery), as well as evidence of an alleged prior aggravated battery offense in 1992.  Second, he maintains that the trial court erred in permitting the State to elicit testimony which indicated that he was on probation or house arrest at the time he allegedly committed the aggravated battery offense in 1992.  Finally, he argues that the trial court erred in denying his motion for new trial based on the prosecutor’s improper closing arguments.  Because the acts constituting Wolfe’s alleged prior aggravated battery offense in 1992 were irrelevant, because they were introduced at trial in graphic detail, and because they became a feature of the trial, we reverse and remand.

Uncharged Attempted Sexual Battery Offense

The uncharged attempted sexual battery allegedly occurred at or about the time of the charged battery.  The trial court, on motion in limine, permitted the State to introduce this bad act evidence as inextricably intertwined evidence, provided terms such as “rape” and “sexual battery” were not used.   Based on our review of the motion in limine hearing as well as the testimony from trial, we find no error in the trial court’s ruling on the uncharged attempted sexual battery.  Evidence of an uncharged crime is inextricably intertwined with the charged offense, and therefore admissible independent of the provisions of section 90.404(2)(a) and (b), Florida Statutes, “where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime.”  Simmons v. State, 790 So. 2d 1177, 1178 n.2 (Fla. 3d DCA 2001) (citing Nickels v. State, 106 So. 479, 488 (Fla. 1925)); Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994).  We find that the acts constituting the uncharged attempted sexual battery were so intertwined with the charged battery that it became necessary for the State to admit these facts at trial.

Alleged Prior Aggravated Battery Offense From 1992

The record reflects that in CRC92-06779CFANO, Wolfe, on April 30, 1992, was arrested and charged with aggravated domestic battery based on allegations made by his then-current wife.  Subsequently, Wolfe’s wife came forward before the information was filed and claimed that she fabricated the charge.  On June 17, 1992, the State no filed the case against Wolfe.  On July 23, 1992, the State charged Wolfe’s wife with filing a false police report.  According to the briefs and the State’s argument at the motion in limine hearing, Wolfe’s wife came forward and said she fabricated the charge because she knew that she would only receive a fine, whereas her husband, who was on probation or house arrest at the time for another crime, would have “gotten into more trouble.”

The motion in limine hearing conducted October 30, 2001 concerned two issues:  the admissibility of the alleged prior aggravated battery offense from 1992, and any mention that Wolfe was on probation or house arrest at the time that offense was allegedly committed.   In arguing their respective positions on each issue, the public defender vehemently objected to any mention that Wolfe was on probation or house arrest.  He vacillated on the extent to which he would be cross-examining Wolfe’s ex-wife about her prior conviction for filing a false police report.  The State maintained that it was necessary for Wolfe’s ex-wife to mention Wolfe’s probation, since this is why she changed her story and claimed she fabricated the charge.  The State argued that it was going to engage in “anticipatory rehabilitation” on direct-examination, and would elicit all of the facts surrounding the alleged prior aggravated battery incident from 1992.  At the conclusion of the hearing, the trial judge remarked, “So my ruling is going to be that if the facts of that case come in, all the facts come in.”  After the trial judge announced her ruling, the State reiterated that it would elicit testimony concerning the 1992 incident in detail on direct-examination, and the public defender reaffirmed his objection to any mention that Wolfe was on probation or house arrest at the time.

            At trial, the State, on direct-examination, began eliciting testimony from Wolfe’s ex-wife concerning the details of the alleged prior aggravated battery offense from 1992.  The public defender promptly objected.  At the ensuing bench conference, the public defender asserted that he did not want to get into the facts, and that he would just ask Wolfe’s ex-wife, on cross-examination, “You accused him of an aggravated battery?”  The trial judge reaffirmed her earlier ruling, and the State continued, on direct-examination, to elicit all of the details from the 1992 incident, including graphic details of the acts constituting the alleged offense. 

Specifically, after the State “refreshed” her recollection with a police report, Wolfe’s ex-wife testified that, in 1992, she was pushed, hit, shoved down on the ground, and kicked from behind when she was “on all fours.”  The transcript next indicates that Wolfe’s ex-wife had difficulty in continuing her testimony.  The State suggested that the court take a break, and the trial judge herself inquired if the witness needed a break.  The proceedings continued.  Wolfe’s ex-wife continued to testify that, in 1992, she was hit in the back of the head, that she tried to get away from him, that she tried to get out the front door but did not make it, that her jewelry was jerked off of her, and that she finally got away from him.  She further testified that she called the police from a nearby convenience store, that an ambulance was needed, that she sustained injuries from the altercation including “severe bruising,” and that she had to be taken to a hospital.  In sum, all of this testimony constituting the details of the alleged prior aggravated battery offense from 1992 was elicited under the umbrella of “anticipatory rehabilitation.”  Evidently, the State thought it was necessary to elicit the graphic details of the alleged aggravated battery in order to “soften the blow” of the anticipated cross-examination as to her misdemeanor conviction for filing a false police report.

            After reviewing the record, we find that the State far exceeded the parameters of “anticipatory rehabilitation.” [1]   The purpose of anticipatory rehabilitation is to permit a witness on direct-examination to testify as to prior inconsistent statements or prior convictions to “soften the blow.”  However, as noted by Ehrhardt:

Permitting counsel to bring out matters on direct examination which are damaging to the credibility of the witness is not without limits.  Evidence that is admitted during anticipatory rehabilitation is subject to the 90.403 balancing test, which weights the probative value of the evidence against the danger of unfair prejudice or misleading the jury.


§ 608.2, pg. 462, Florida Evidence (2002 ed.).


            We find that the graphic details of the acts constituting the alleged aggravated battery should have been excluded under section 90.403.  See e.g., State v. Price, 491 So. 2d 536 (Fla. 1986) (anticipatory rehabilitation was impermissible under section 90.403).  The acts constituting the 1992 battery were irrelevant.  Moreover, they became a feature of the trial.  See Ashley v. State, 265 So. 2d 685, 693 (Fla. 1972).  The “anticipatory rehabilitation” should have only concerned preemptive questioning as to her prior conviction for filing a false report.

            In its brief on appeal, the State cites to Lawhorne v. State, 500 So. 2d 519 (Fla. 1986), in which defense counsel, on direct-examination of the defendant, inquired as to the number of times he had been convicted of a felony.  Id. at 520.  After the defendant answered that he had been convicted of six felonies, defense counsel inquired as to whether he had gone to trial on any of those convictions.  Id.  The State objected, and the trial court disallowed the question.  Id.  On appeal, the Supreme Court explained that “the party presenting testimony may not only bring out impeaching information on direct examination to steal the thunder of the impeachment it is anticipated the other side will elicit on cross, but may attempt to ‘reduce the harmful consequences’ by explaining something about the nature and character of the damaging information – in other words, to rehabilitate the witness before he has been impeached.”  Id. at 521-22.

            We do not read Lawhorne, however, as a license to elicit several pages worth of irrelevant testimony concerning the acts constituting the 1992 aggravated battery, which was clearly prejudicial.  The preemptive tactic of bringing out the matter on direct-examination should have been limited to the fact that Wolfe’s ex-wife previously charged Wolfe with aggravated battery, that she subsequently recanted her accusations because Wolfe would have “gotten into more trouble” than she would have, and that as a result, she was charged with filing a false police report.

             The credibility of Wolfe’s ex-wife, the victim, was clearly an important aspect of this case.  It is the State’s burden to prove that the error did not contribute to the verdict.  State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).  We find that the State has failed to show that this error did not contribute to the verdict. [2]  

Moreover, we find that the error discussed above was compounded when the jury heard testimony that Wolfe was on probation or house arrest in 1992.  Wolfe’s ex-wife testified, three times, that Wolfe was on probation or house arrest at the time of the 1992 incident.  The public defender objected to this testimony at least twice and was overruled.   We find that it was error to permit the State to elicit any reference to Wolfe’s probation or house arrest.  Matthews v. State, 772 So. 2d 600, 602 (Fla. 5th DCA 2000) (defendant’s statement that he was on probation for domestic violence charge had no probative value and was overly prejudicial); Clark v. State, 742 So. 2d 824 (Fla. 2d DCA 1999) (“We agree with Clark's contention that he was denied a fair trial where the jury heard testimony that Clark was on probation at the time that the allegations arose in this case. The testimony constituted an improper implication of collateral crimes, which is presumptively prejudicial.”).  Although the fact that Wolfe was on probation or house arrest in 1992 had some probative value, since this is the reason Wolfe’s ex-wife claims that she later recanted her accusations, there were means that should have been employed to reduce the prejudicial effect of this information. 

Improper Closing Argument

            We find it necessary to comment on one other issue that was raised on appeal.  In its closing argument, the prosecutor made the following statements: (1) “The State gets involved, however, when it’s no longer acceptable behavior.  When at some point during the argument someone else sees fit to beat another person to a pulp and then makes excuses for it, that is unacceptable behavior;” (2) “And when she refused to have sex with him, he tried to pull down his pants.  And when he couldn’t, he was mad.  He threw her on the bed  . . . .”; and (3) “But you were here.  You were listening.  The events happened just as this case did.  In 1992, he beat his wife to a pulp.” 

After each of these comments, the public defender objected on grounds of facts not in evidence.  All three objections were sustained.  After the third comment, the trial judge gave a curative instruction.  Because the objections were sustained, the public defender was required to move for a mistrial in order to preserve this issue for appeal.  Simpson v. State, 418 So. 2d 984, 986 (Fla. 1982) (citing Clark v. State, 363 So. 2d 331 (Fla. 1978)).  Although the public defender moved for a mistrial, he did so only after the jury returned a guilty verdict.  Because the motion for mistrial was not contemporaneous or made at the close of arguments, it was untimely.  State v. Cumbie, 380 So. 2d 1031, 1033-34 (Fla. 1980) (“The motion for mistrial in the present case, made after jury instructions and retirement of the jury for deliberation, however, came too late to preserve [his] objection for appeal).  These comments do not amount to fundamental error, and therefore, this issue cannot be remedied on appeal.  Bush v. State, 809 So. 2d 107, 118 (Fla. 4th DCA  2002) (defining fundamental error in the context of improper argument).

That said, we find these inflammatory comments to be inappropriate.  In part, they invite the jury to make a finding of guilt for a reason other than the evidence presented at trial.  Were this issue properly preserved, and were it not for the other errors that require reversal, we would reverse on the basis of these comments alone.  See e.g., Kelly v. State, 2003 WL 1798084 (Fla. 1st DCA Apr. 8, 2003).

Reversed and remanded.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.



                                                                                    JOHN A. SCHAEFER, Circuit Judge





                                                                                    W. DOUGLAS BAIRD, Circuit Judge





                                                                                    NANCY MOATE LEY, Circuit Judge

cc:        Public Defender’s Office

            State Attorney’s Office

[1]   We find that this error was preserved for appeal.  The public defender objected prior to the State’s elicitation of the facts at trial.  Additionally, the public defender, after the State rested its case, stated “Your Honor, at this time the defense is going to renew its motion for mistrial on all original grounds and also the fact of how far they got into that ’92 case.  I feel we’re not trying one but two battery cases here.  I heard a whole bunch of allegations and ugly facts about that ’92 case that wasn’t filed on.”  The trial judge denied the motion for a mistrial as well as a motion for judgment of acquittal.

[2]    We note that there was never a Williams rule motion to elicit testimony on the acts constituting the alleged aggravated battery in 1992 in order to prove a material fact in issue, such as identity or modus operandi.