Foburg v. State

744 So. 2d 1175, 1999 WL 992726
CourtDistrict Court of Appeal of Florida
DecidedNovember 3, 1999
Docket97-03376
StatusPublished
Cited by11 cases

This text of 744 So. 2d 1175 (Foburg v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foburg v. State, 744 So. 2d 1175, 1999 WL 992726 (Fla. Ct. App. 1999).

Opinion

744 So.2d 1175 (1999)

Richard N. FOBURG, Appellant,
v.
STATE of Florida, Appellee.

No. 97-03376.

District Court of Appeal of Florida, Second District.

November 3, 1999.

Mark A. Gruwell of Law Offices of Mark A. Gruwell, Sarasota, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellee.

*1176 PER CURIAM.

Richard N. Foburg appeals his convictions of handling and fondling C.U., a child under the age of sixteen, in violation of section 800.04(1), Florida Statutes (1995); transmitting or showing the minor C.U. obscene material, in violation of section 847.0133; and three counts of causing or encouraging the minors C.U., M.A., and T.A. to become delinquent by giving them alcohol, in violation of section 827.04(3).[1] We hold that Foburg's convictions were tainted by the improper admission of Williams[2] rule evidence. Accordingly, we reverse Foburg's convictions and remand this cause for a new trial.

Section 90.404(2)(a), Florida Statutes (1995), sets forth the basis for admission of Williams rule evidence:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

In Heuring v. State, 513 So.2d 122, 124 (Fla.1987), the supreme court observed that "[t]o minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses." In addition to this similarity requirement, "[a] critical aspect of the test of admissibility under section 90.404(2)(a) ... [is] whether such evidence tends to prove a material fact issue that is in dispute." Thomas v. State, 599 So.2d 158, 162 (Fla. 1st DCA 1992). "Whether a relevant material fact is in issue ... must be determined from the particular facts and circumstances involved in each case, i.e., has the defendant put such fact in issue." Id. at 163.

As in Thomas, we have carefully reviewed the record to determine how the Williams rule evidence was relevant to prove a material fact in issue and how it tended to prove said disputed fact. In its opening statement at trial, the State said that it was going to present the testimony of three witnesses who had similar encounters with Foburg from 1979 through 1983 to help the jury "understand what was going on in ... [Foburg's] mind ... and the modus operandi that he was operating on in 1995 and 1996." The State also said that it would show the jury Foburg's intent with regard to the girls involved in this case by taking them back a few years. In its brief in this appeal, the State asserts that the Williams rule evidence was relevant to prove Foburg's scheme to molest young girls. However, the thrust of defense counsel's opening and closing statements at trial was that the inconsistencies in the victims' testimony revealed that the victims were not telling the truth and that the offenses did not occur. Thus, none of the reasons given by the State for introduction of the Williams rule evidence were disputed factual issues relevant to specific elements of the offenses for which Foburg was being tried. See Thomas.

Even if the State's reasons for introducing the Williams rule evidence were relevant to specific elements of the offenses with which Foburg was charged, the Williams rule evidence does not bear a striking similarity to the facts of the charged offenses, nor does it share unique characteristics with the charged offenses that set them apart from other offenses. The girls in this case all attended a middle school across the street from Foburg's residence. *1177 C.U. was eleven, M.A. was fifteen, and T.A. was approximately twelve at the time of their encounters with Foburg. They and many others would congregate in Foburg's yard and smoke cigarettes which were at times supplied by Foburg. The girls in this case would also go inside Foburg's residence and drink alcohol, which they all testified was kept in glass containers. C.U. testified that either she or Foburg would pour the alcohol. She observed three other girls, including M.A., drink alcohol at Foburg's residence. M.A. testified that she had alcohol twice at Foburg's residence and that on one of those occasions Foburg poured it. T.A. testified that she had alcohol at Foburg's residence many times but she did not think that Foburg ever poured it for her. It was her understanding, however, that Foburg knew she was drinking alcohol.

C.U. testified that, in addition to making cigarettes and alcohol available to her, Foburg showed her Playboy magazines, sexual toys, and a pornographic video. C.U. relayed that Foburg showed her a vibrator and asked if she wanted to use it. She said no, but when he insisted that she wanted to use it, she went into a room by herself and used it. C.U. testified that the last time she saw Foburg, he had reached up under her blouse and bra and touched her breast. She also testified that Foburg had told her that he wanted to have sex with her.

M.A. testified that she saw magazines and movies involving naked men at Foburg's residence. Foburg told her he would loan her a bike and a beeper and he gave her a vibrator, telling her that C.U. had one and she had used it in his garage. M.A. once went swimming at Foburg's residence in a suit provided by Foburg. He asked her to try on three different swim suits, one of which was a t-back, but she declined. T.A. witnessed this exchange.

The Williams rule witnesses all had experiences with Foburg between seventeen and twenty years earlier. L.S., who was thirty-three years old at the time of trial, testified that she babysat Foburg's son when she was thirteen. Foburg would offer her cigarettes and alcohol and he subsequently showed her sexually explicit magazines and videos. Foburg later showed L.S. a dildo and asked her if she had ever seen one before. He told her he had one just like it, and he asked her if she would like to see his. L.S. stated that Foburg was referring to his own penis. After that incident, L.S. stopped babysitting for Foburg.

C.M., who was thirty-one years old at the time of trial, testified that she was friends with the other Williams rule witness, P.D., and they both attended the same middle school as the girls in the present case. C.M. knew Foburg through P.D. She began going to his house when she was about fourteen years old. She was offered cigarettes every time she was there, as well as alcohol, which was kept in crystal decanters. Foburg knew she was drinking his alcohol, but either she or P.D. would fix their drinks. When asked if Foburg ever touched her inappropriately, C.M. stated that he hugged her a little too closely. She went swimming at Foburg's house in a swim suit he provided. The suit was not a thong suit, but she considered it revealing for the times. Foburg watched her while she swam.

P.D., who was almost thirty years old at the time of trial, testified that she lived with Foburg and his family when she was about thirteen or fourteen years of age. She was fourteen when Foburg offered her alcohol.

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Cite This Page — Counsel Stack

Bluebook (online)
744 So. 2d 1175, 1999 WL 992726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foburg-v-state-fladistctapp-1999.