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.