JAMES E. EVANS, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No.
Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
challenges his convictions for sexual battery and burglary
with an assault. He contends that the court erred in multiple
rulings. We affirm as to all issues, but address only two.
First, the court admitted a 911 call from the victim as an
excited utterance. Appellant contends that the time between
the incident and the call was sufficient to allow time for
reflection, so that the court abused its discretion in
admitting the call. Considering all the circumstances of the
event, the trial court properly admitted the call. Second,
appellant claims that the court erred in denying his motion
for mistrial after an outburst by the victim. This too is a
discretionary call by the court, and the court did not abuse
State charged the defendant with several counts of sexual
battery and burglary with an assault of a
seventy-seven-year-old woman. Appellant contended that their
contact was entirely consensual.
trial, the victim, testified that she lived alone in a senior
citizens complex. On the night of the incident, she awoke to
see the silhouette of a figure in her doorway. The person
grabbed her and said, "[I]t's going to be okay,
don't worry." He pushed her back into her bedroom
and she realized he was a stranger. He got on top of her on
her bed. She was scared and thought she was going to die. The
man told her he was a gentle man and would not hurt her.
Trying to act calm, she asked him to have a glass of wine and
talk, but he kept pushing her down. He then sexually
assaulted her in multiple ways. She then asked for some
water, and they both got up and went to the kitchen. She
suggested that they sit in the living room and talk, because
she wanted to gain his confidence. When they went in the
living room, she could see his face and features. He also
digitally penetrated her while in the living room. She told
him she wasn't angry with him. They talked for a while,
and then she gave him her business card with her cell phone
number on it. She was trying to connect with him on a human
level, as she knew she couldn't fight him.
while, he thought she was tired, and he decided to leave. He
started to get dressed and realized he left his cigarettes in
her bedroom. They went back to find them. As she was
searching, she stepped on something by her bed. It was a
knife with a fancy handle in a sheath. The man said,
"[T]hat's for my protection." Then he took the
knife. They walked into the kitchen, and he hugged her. He
said he liked her and wanted to get to know her better. He
said he was sorry, that this wasn't the way to start a
relationship. She let him think she was ok with that. Then he
left through the front door.
immediately locked the door. She stood there a few seconds or
minutes, frozen, not believing what had just happened. Then
she called her son and told him she had been raped. The son
worked about three and a half miles away, and he was there
within fifteen minutes. When he arrived, he called 911, and
the victim reported the incident. Police came and interviewed
her, collecting evidence.
next day a person, whom the victim recognized as her
attacker, called her cell phone. He called himself
"Thomas" and said he wanted to come over. She said
"no, " but she recognized his voice. She told
police about the call. That same person called her again. She
also found a pack of Marlboro cigarettes in her apartment the
next day. She identified appellant in court as her attacker.
cross-examination, defense counsel questioned the victim
extensively about the incident, suggesting that she had
invited appellant into her home and had initiated sexual
contact. Defense counsel impeached her with statements she
made to the police, including that she told the police right
after the incident that she asked him to call her the next
day. Counsel questioned her on details, such as the knife and
its fancy handle, noting that she had not mentioned the
handle to the police or in her deposition. She also had not
mentioned to the police that she had seen appellant sometime
before the incident sitting on a bench near the victim's
apartment complex. Nor had she mentioned in any of her prior
statements that appellant had said he was a gentle man or
some other details that she revealed on direct examination.
The victim grew more and more upset by the tenor of the
questions, stating that counsel was making her feel like the
guilty one. At one point, she told counsel, "[T]his is
ridiculous. I am telling you the honest to God truth."
Counsel objected that the victim's answers were
non-responsive, at which point the court removed the jury and
sought to calm things down, telling the victim that the court
understood that she was very emotional. The victim claimed
counsel was asking inconsequential questions and that she was
trying to be very honest. The court then took a break.
court reconvened, cross-examination continued. Defense
counsel suggested to the victim that the reason that she had
not given some information to the police was that she
didn't want to lie to them, as she had in fact invited
appellant to her home earlier that day. Defense counsel asked
whether she was the one who had initiated sexual contact, to
which the victim asked why defense counsel was accusing her,
as it was not true. Defense counsel then asked if, when she
called her son, it was because she was embarrassed that
someone might have seen the appellant in her apartment. The
victim responded, "Oh no. I swear on my son's soul
that everything you are saying is a lie. . . . Unbelievable.
Oh, my God." Defense counsel moved to strike her
response and then moved for a mistrial based upon the
victim's outbursts. The court denied the mistrial, but it
did instruct the jury to disregard the victim's comments.
police officers testified as part of the State's case.
One, who arrived after the 911 call, found the victim in a
state of shock or disbelief. She was shaking and crying on
and off. A nurse testified to the victim's ...