LaVALLEY v. State

30 So. 3d 513, 2010 Fla. App. LEXIS 3910, 2009 WL 4874760
CourtDistrict Court of Appeal of Florida
DecidedMarch 26, 2010
Docket5D08-3240
StatusPublished
Cited by1 cases

This text of 30 So. 3d 513 (LaVALLEY 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
LaVALLEY v. State, 30 So. 3d 513, 2010 Fla. App. LEXIS 3910, 2009 WL 4874760 (Fla. Ct. App. 2010).

Opinions

PER CURIAM.

Appellant, Arthur LaValley, challenges his convictions on three counts of sexual battery on a child between twelve and eighteen years old by a person in familial or custodial authority,1 and one count of lewd or lascivious molestation of a child by a person over eighteen on a victim between twelve and sixteen years old.2 He challenges the lower court’s determination that he was limited to six peremptory challenges during jury selection. He also challenges the introduction of collateral crime evidence. We affirm.

Pursuant to section 913.08(1), Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.350(a)(l)-(2), a criminal defendant is entitled to ten peremptory challenges where the “offense charged is punishable by death or imprisonment for life,” but only six peremptory challenges where the “offense charged is [a felony punishable by imprisonment for more than 12 months but is] not punishable by death or imprisonment for life.” Appellant was charged with three first-degree felonies and one second-degree felony. Under section 775.082(3)(b), Florida Statutes, a person convicted of a “felony of the first degree, [may be punished] by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.” (Emphasis added).

During jury selection, Appellant argued to the trial court that he was entitled to ten peremptory challenges because, by statute, if he was convicted as charged, he could be sentenced to life imprisonment. The State also informed the court that if Appellant was convicted as charged and the jury found that penetration occurred, as alleged in two of the sexual battery counts, then “points wise” Appellant could be sentenced to life. The trial court noted that Appellant was charged with a first-degree felony, not a life felony, and ruled that he was only entitled to six peremptory challenges. Although the court acknowledged that Appellant’s scoresheet points could subject him to a life sentence,3 it concluded that this fact did not affect the application of rule 3.350. We agree.

Appellant was charged with three first-degree felonies and one second-degree felony, none of which carry life sentences. He faced life imprisonment only if the jury found him guilty as charged on all four counts and found that penetration occurred in the sexual battery counts. Section 913.08 and rule 3.350 link the number of peremptory challenges to the “offense charged,” in the singular. [515]*515This is determined by looking at each count in isolation. If any offense charged is punishable by life, then the number of peremptory challenges is increased to ten. Buchanan v. State, 927 So.2d 209 (Fla. 5th DCA 2006), relied upon by Appellant, does not hold to the contrary. There, the defendant was charged with a single offense that subjected him to a life sentence.

Our interpretation of rule 3.350 is consistent with the interpretation given by the federal courts to the similarly-worded federal rule. For example in United States v. Machado, 195 F.3d 454 (9th Cir.1999), the defendant argued that he was entitled to an increased number of peremptory challenges because he was charged with two separate counts, the punishment for which, when aggregated, could exceed the threshold for an increased number of challenges. Focusing on the “offense charged” language of Federal Rule 24, the court concluded that the number of peremptory challenges must be determined by “look[ing] at each offense charged and de-termin[ing] the punishment for that offense.” Id. at 457; see United States v. Hutchings, 751 F.2d 230, 237 (8th Cir.1984) (joinder of multiple counts in one indictment does not entitle defendant to increased number of peremptory challenges); United States v. Nelson, 733 F.2d 364, 368 (5th Cir.1984) (trial court did not err in refusing to grant more than ten peremptory challenges to defendant charged under four-count indictment); United States v. Ming, 466 F.2d 1000, 1006 (7th Cir.1972) (potential punishment under multiple counts not aggregated to determine number of challenges); Estes v. United States, 335 F.2d 609, 615 (5th Cir.1964) (defendant charged with eighteen separate counts correctly limited to ten peremptory challenges).

Appellant also challenges the admission of certain Williams4 rule evidence. Appellant’s adopted daughter is the victim in all four counts. To corroborate the victim’s testimony, the State introduced evidence of Appellant’s prior sexual molestation of his biological daughter. The biological daughter, who was an adult by the time of trial, testified that Appellant molested her when she was a teenager, specifically stating that he fondled and sucked on her breasts, and gave her hickeys on her breasts and neck.

Appellant argues that the court abused its discretion by allowing this Williams rule evidence because it was unduly prejudicial and described acts so dissimilar to the charged acts that it lacked relevancy. We disagree. Rulings with regard to relevancy and admissibility of evidence are subject to an abuse of discretion standard of review. San Martin v. State, 717 So.2d 462, 470-71 (Fla.1998); Fisher v. State, 924 So.2d 914, 916 (Fla. 5th DCA 2006); see Mendez v. State, 961 So.2d 1088, 1090 (Fla. 5th DCA 2007) (abuse of discretion standard applies to admissibility of Williams rule evidence). Discretion is abused when the judicial action taken is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the view taken by the trial court. Triplett v. State, 947 So.2d 702, 704 (Fla. 5th DCA 2007).

Section 90.404(2)(b)l., Florida Statutes (2006), broadens the admissibility of similar fact evidence in child molestation cases and provides that when a defendant is charged with a crime involving child molestation, “evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” Nonetheless, relevancy remains the threshold consideration for the admission of the evidence and even relevant [516]*516evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat. (2006); citing McLean v. State, 934 So.2d 1248 (Fla.2006).

In McLean, the supreme court identified the following four non-exclusive factors for trial courts to evaluate in determining whether to admit evidence of previous molestations by the defendant:

(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances.

Id.

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Bluebook (online)
30 So. 3d 513, 2010 Fla. App. LEXIS 3910, 2009 WL 4874760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lavalley-v-state-fladistctapp-2010.