County Criminal Court: CRIMINAL LAW — Jury Trial/Evidence — Prior bad acts — Since defense indicated that neither intent nor identity would be disputed at trial, the State would not be allowed to present their Williams Rule witness unless the defense used either defense at trial.  Trial court’s order sustaining defense objection affirmed.  State of Florida v. Gunwant S. Dhaliwal, No. CRC09-003030-CFAWS (Fla. 6th Cir. App. Ct. October 19, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

STATE OF FLORIDA,     

                    Appellant,

                                                            UCN:            512009CF003030A000WS

v.                                                         Case No:      09-03030

                                                            Lower No:    08-3595-MMAWA-01

 

GUNWANT S. DHALIWAL,                                       

                    Appellee.                                             

_____________________________/

Appeal from Pasco County Court

County Judge Anne Wansboro

 

James Goodnow, A.S.A. and

Ryan J. McGee, A.S.A. 

for Appellant

 

David R. Parry, Esq.

for Appellee

 

 

 

ORDER AND OPINION

 

The State appeals the trial court’s order sustaining Appellee’s objection to the State’s Notice of Intent to Use Evidence of Other Crimes, Wrongs, or Acts.  The State sought to introduce Williams Rule witnesses to rebut anticipated defenses.  Based on the trial court’s carefully crafted order, this Court affirms the trial court’s order as set forth below.

 

 

                         

FACTUAL BACKGROUND

On May 27, 2008, Appellee was charged with two counts of misdemeanor battery for intentionally touching two individuals against their wills on separate occasions.  The State filed a Notice of Intent to Use Evidence of Other Crimes, Wrongs, or Acts Committed by Defendant, on January 8, 2009.  After Appellee objected, the trial court held an evidentiary hearing on April 24, 2009. 

At the hearing held before Judge Wansboro, testimony from six witnesses concerning similar-fact evidence was presented.  The first alleged victim in the case, Danielle Turner, testified that Appellee battered her on February 24, 2007 in the exam room of Appellee’s walk-in clinic during a microdermabrasion demonstration.  Ms. Turner was going to work for Appellee and performing microdermabrasion was going to be part of her duties.  Appellee performed the microdermabrasion on her head and neck.  Toward the end of the procedure, Appellee started to put lotion on her chest.  Appellee put his hand in her shirt, took her breasts out from inside her bra and shirt, and fondled them against her will.  No one else was present in the exam room.

The second victim in the case, Marissa White (Satinoff), testified that Appellee battered her on May 30, 2007.  The day prior, Ms. White was in a car accident.  She went to Appellee’s clinic for treatment of the resulting neck and back pain.  When Appellee entered the exam room, he discussed her medical history.  Specifically, Appellee asked about Ms. White’s statement of breast augmentation and whether she was having chest pain, which she did not.  Appellee quickly looked at her arms and pushed her back on the exam table.  Appellee lifted up her shirt without permission, reached to the left side of her bra, grabbed and fondled her left breast, and then repeated it on the right.  Appellee helped her back up.  Ms. White had to adjust her breasts back into her bra and pull her shirt back down.  The examination took place with only Ms. White and Appellee in the exam room. 

Tammy King testified as the first of four Williams Rule witnesses.  Appellee had twice previously treated her for bronchitis, and she returned to his clinic to check on her progress in February of 2007.  In the exam room, Appellee listened to Ms. King’s lungs quickly from the back.  He then had her lay down on the table.  Appellee told Ms. King that he was going to listen to her lungs from the front.  He took his stethoscope, put it under her shirt from the bottom to the top, and went straight to her left breast.  Appellee grabbed her left breast, fondled it, then grabbed the right breast, and fondled it.  Ms. King jumped, and Appellee removed his hand.  Ms. King told Appellee she was fine and left.  As with the alleged victims, no one else was in the exam room. 

The second Williams Rule witness, Elizabeth Bathgate, testified that Appellee battered her in his clinic on July 21, 2006.  Ms. Bathgate was having some asthmatic breathing problems. The exam started out routinely where Appellee took his stethoscope and was listening to her breathing from the back.  Appellee then listened to her breathing from the front.  Ms. Bathgate felt that Appellee went too low with her left breast than she was comfortable with, and he pushed it a little bit.  No one else besides the two of them was present in the exam room.

The third Williams Rule witness, Michele Turner, testified that Appellee battered her in October of 2006.  She visited his clinic for back and shoulder pain from a car accident.  During the exam, Appellee put his hand behind her shoulder and began feeling her upper chest.  Appellee put his hand inside her bra and squeezed her nipple.  Again, no one else was present in the exam room. 

The final Williams Rule witness, Kelly Hayes, testified that she went to Appellee’s clinic to be treated for bronchitis in August of 2001.  Appellee tapped on her breast bone and pushed up under her ribs checking the pleura.  Next, Appellee pulled up the right side of her shirt and bra and fondled her breast.  Ms. Hayes pulled her shirt down.  Appellee responded by pulling her entire shirt and bra up.  He fondled both of her breasts with both hands.  Like the other witnesses and alleged victims, she was alone in the room with Appellee in the exam room. 

The State had three additional Williams Rule witnesses that were unable to be at the hearing (Lisa Dukes, Michelle Cochran, and Julieanne Finnegan), but could provide similar testimony.  After the hearing, Judge Wansboro entered an order sustaining Appellee’s objection to the inclusion of the Williams Rule evidence.  The State filed a timely notice of appeal.       

                

LAW AND ANALYSIS

          Pursuant to Florida Statute 90.403, “relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”  Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Such similar fact evidence is inadmissible, however, when the evidence would only demonstrate bad character or propensity.  § 90.404(2)(a), Fla. Stat. (2010).  To be admissible, it must be relevant to prove a material fact in issue, while the probative value is not substantially outweighed by its prejudicial effect.

          In this case, the trial court properly considered whether the Williams Rule witnesses should be admitted.  The court found that intent was a material fact since it was an element of the crimes charged.  Whether Appellee was performing an act for a bona fide medical purpose would also be material.  Further, while absence of mistake, accident, plan/design, and knowledge were not elements of misdemeanor battery, they would be probative to the element of intent.  And evidence of plan/design and opportunity would also be probative of identity, which was also an element of the charged crimes.  Therefore, absence of mistake, accident, plan/design, knowledge, and opportunity would be material facts since they were probative of intent or identity.

          Next, the trial court considered whether intent or identity was at issue.  For a material fact to be in issue, it must genuinely be in dispute.  Since the defense attorney had already indicated that Appellee’s defense would be that the allegations did not happen, the trial court reasoned that Appellee would not dispute intent or identity.  As such, neither intent nor identity would be at issue, rendering the Williams Rule evidence inadmissible.  Hebel v. State, 765 So. 2d 143 (Fla. 2d DCA 2000).  The trial court reasoned that the State will not be permitted to call its Williams Rule witnesses unless the defense puts intent or identity in issue. 

          Based on the trial court’s careful and well-reasoned order, this court must affirm it.  Of significance, the trial court did not unconditionally sustain the defense’s objection to the State using these Williams Rule witnesses; rather, the trial court left the door open to allow this evidence if the defense were to put either intent or identity in issue at trial.  As such, the State would not be precluded from including this evidence if the defense in any way were to either intent or identity at issue.  Therefore, it is

 

ORDERED that the trial court’s order sustaining Appellee’s objection the State’s Notice of Intent to Use Evidence of Other Crimes, Wrongs, or Acts suppress is hereby AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 19th day of October 2010.

 

Original order entered on October 19, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.