Fogelman v. State

648 So. 2d 214, 1994 WL 706328
CourtDistrict Court of Appeal of Florida
DecidedDecember 21, 1994
Docket92-2567
StatusPublished
Cited by6 cases

This text of 648 So. 2d 214 (Fogelman 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
Fogelman v. State, 648 So. 2d 214, 1994 WL 706328 (Fla. Ct. App. 1994).

Opinion

648 So.2d 214 (1994)

John FOGELMAN, Appellant,
v.
STATE of Florida, Appellee.

No. 92-2567.

District Court of Appeal of Florida, Fourth District.

December 21, 1994.
Rehearing Denied January 30, 1995.

*215 Richard L. Jorandby, Public Defender, and Eric M. Cumfer, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.

WARNER, Judge.

Appellant challenges his convictions for armed kidnapping of a woman and her child, attempted armed sexual battery, attempted robbery with a deadly weapon, and aggravated assault with a deadly weapon. We affirm the admission of collateral act evidence, but because the trial court erred in commenting on the credibility of a key defense witness and in failing to disqualify itself, we reverse.

On December 12, 1989, as L.C. was putting her small son in his car seat after a trip to the Southland Shopping Center, appellant came up and put a knife to her side. He instructed her where to drive and finally told her to stop on a deserted road at the beach. After she parked the car, appellant told her to unbutton her pants and asked the color of her underwear. She told him it was none of his business. Appellant then said he was going to rape her — that he had no choice. He caressed her hair and touched the button *216 to her pants, but L.C. pushed him away. He moved close to her with the knife, saying he did not want to hurt her but he would. He said he had been in prison for 12 years, and he wanted somebody. L.C. told him he would have to hurt her, because she was not going to let him do it. Eventually, he told her to drive back to the shopping center where he left her car.

Appellant was arrested several days later. At trial, appellant's counsel in opening argument admitted that his client had committed the acts but that he was legally insane from a very troubled life. L.C. made a positive identification of appellant and recounted her experience. Over the strenuous objection of appellant's counsel, the state was allowed to introduce similar act evidence. One crime was an abduction and sexual battery of N.A. some twelve years before this crime. The other incident was an abduction and sexual battery of a woman, P.L., the day after the incident with L.C. In each case, appellant abducted the women in their own cars, told them he needed a ride to someplace else, drove them to a remote location and sexually assaulted them. While the appellant abducted his first victim from the same shopping center as he abducted L.C., the kidnapping which occurred the day after the incident with L.C. occurred in a different part of town. In the first incident, he used a chain to threaten his victim, whereas in the other sexual battery he used a knife, just as he had in the abduction of L.C.

Appellant was also tried and convicted of the abduction and sexual battery of P.L. In that case, the state introduced the incidents involving N.A. and L.C. On appeal this court reversed, holding that the admission of this evidence of similar crimes was error. Fogelman v. State, 625 So.2d 893 (Fla. 4th DCA 1993). However, in that case, appellant did not use the defense of insanity. That difference in trial strategy explains the difference in the result here.

Appellant argues that the two other crimes in this case are not similar enough to justify admission, the unique similarity of crimes being necessary when prior acts are introduced to show identity of the perpetrator. In the instant case, identity was not an issue. In Williams v. State, 621 So.2d 413, 414 (Fla. 1993), the supreme court in revisiting Florida's rules of evidence concerning the admissibility of similar crime evidence, stated:

Evidence of other crimes or acts may be admissible if, because of its similarity to the charged crime, it is relevant to prove a material fact in issue. But it may also be admissible, even if not similar, if it is probative of a material fact in issue. Although similarity is not a requirement for admission of other crime evidence, when the fact to be proven is, for example, identity or common plan or scheme it is generally the similarity between the charged offense and the other crime or act that gives the evidence probative value. Thus, evidence of other crimes, whether factually similar or dissimilar to the charged crime, is admissible if the evidence is relevant to prove a matter of consequence other than bad character or propensity. (Citation omitted).

Id. at 414.

The state contends that the similar acts were relevant to prove a material issue in the case other than identity so that unique similarity is not required. It suggests that the similar acts proved intent and, further, that they rebutted the defense of insanity. As to intent, appellant never claimed that he had any other intent but to sexually assault the women, which L.C. testified is what he told her he was going to do to her. Instead appellant claimed he was insane and that his insanity was a long-standing condition which manifested itself prior to the sexual assault on N.A., as opposed to a temporary breakdown at the time of the instant crime. At least one of his experts testified that the incipient causes of his insanity developed in childhood. However, another expert called by the state who had examined appellant after the incident in 1977 involving N.A. testified that he did not find appellant insane at the time of his evaluation. Thus, the testimony regarding the incident with N.A. was relevant to show lack of insanity on the date of the crime involving L.C., in that appellant had acted in a similar manner while sane. See Rossi v. State, 416 So.2d 1166 (Fla. 4th *217 DCA 1982). The incident involving N.A., even though not uniquely similar, was sufficiently similar to be relevant to the determination of appellant's sanity on the date in question, negating his alleged lack of capacity to form a criminal intent.

There is also relevance of the evidence regarding the incident involving P.L. with respect to appellant's alleged insanity. In fact, appellant's expert relied on the P.L. incident to diagnose appellant as having a disassociated state, meaning that he had two personalities, one named John and one named Joey. She derived this from P.L.'s testimony that appellant referred to himself as "Joe" during his attack on her. Where the defense trial strategy is to use the similar incidents affirmatively in the defense case, their introduction cannot be prejudicial error on behalf of the state. Cf. Snowden v. State, 537 So.2d 1383, 1386 (Fla. 3d DCA 1989). Moreover, on the state's case, the method and manner of the P.L. abduction and appellant's actions showed a calculated mind and an understanding of right and wrong, negating the legal insanity of appellant. Although P.L.'s testimony was highly emotional, and the crime against P.L. more heinous in that P.L. had been sexually assaulted orally, vaginally, and anally, under the circumstances of this case where both sides utilized the evidence to further their claims regarding appellant's sanity or lack thereof, we find no error in its admission.

With respect to the other similar act evidence from a witness who saw appellant following women to their cars in a parking lot on the day of appellant's arrest, we find error in its introduction as it did not tend to prove any issue in the case. Moreover, the evidence regarding appellant's attempted escape from jail appears equally irrelevant.

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Bluebook (online)
648 So. 2d 214, 1994 WL 706328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fogelman-v-state-fladistctapp-1994.