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Evans v. State

Florida Court of Appeals, Fourth District

June 6, 2018

JAMES E. EVANS, Appellant,

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502014CF001788AXXXXMB.

          Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

          WARNER, J.

         Appellant 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 that discretion.

         The 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.

         At 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.

         After a 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.

         She 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.

         The 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.

         On 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.

         When 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.

         Several 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 ...

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