Simmons v. State

790 So. 2d 1177, 2001 WL 811042
District Court of Appeal of Florida·Decided July 18, 2001·No. 3D99-2408·Published·Cited by 18 cases

Opinion

790 So.2d 1177 (2001)

James SIMMONS, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D99-2408.

District Court of Appeal of Florida, Third District.

July 18, 2001.

Stuart R. Mishkin, Miami, for appellant.

Robert A. Butterworth, Attorney General, and M. Rebecca Springer, Assistant Attorney General, for appellee.

Before LEVY, GREEN and SORONDO, JJ.

SORONDO, J.

James Simmons, defendant, appeals his convictions and sentence. Defendant was charged by an Amended Information with *1178 aggravated battery, aggravated assault with a deadly weapon, armed kidnaping, and battery of Latricia Nelson, his girlfriend, for an incident that occurred on June 11, 1998. In a timely manner, the state filed its initial Notice of Intent to Rely on Evidence of Other Crimes, Wrongs or Acts. In this notice, the state described its intent to seek the admission of evidence of a battery committed by defendant upon Ms. Nelson on August 9, 1997. The state subsequently filed its Supplemental Notice of Intent to Rely on Evidence of Other Crimes Wrongs or Acts. In this second notice, the state announced its intent to seek the admission of an aggravated assault with a firearm against defendant's former girlfriend, Estelle Carter, in January of 1991.

Prior to trial, the defense objected to the Williams[1] rule evidence. The state argued that the evidence was relevant to show intent and lack of mistake. The state further argued that the evidence regarding Estelle Carter would further serve to rebut defendant's anticipated claim of self-defense at trial.

The trial court concluded that the 1997 incident involving Ms. Nelson was relevant, not under Williams rule, but because it was inextricably intertwined in a domestic violence incident.[2] The court ruled it would not permit the Williams rule evidence regarding the 1991 incident with Estelle Carter because it was irrelevant. The court indicated it would revisit the issue during trial if necessary.

The State's first three witnesses testified about the August 1997 incident involving the same victim as in the present case.[3] Ms. Nelson testified that in August 1997, defendant beat her in the face. She then testified that on the day of the charged *1179 offense defendant arrived home from work in a loud and angry mood. A verbal altercation ensued and escalated to the point that defendant hit her in the left eye. She also testified that defendant choked, beat and pushed her.

At some point during the struggle, defendant retrieved a shotgun from beneath the mattress, held it to her head and then hit her on the head with the shotgun. She further testified that she was unable to get away because defendant continued to push her, and that she was unable to run because she had previously suffered injuries to her leg in an unrelated accident.

The state called other witnesses who corroborated the existence of injuries suffered by the victim and the presence of firearms in the house.

Defendant took the witness stand on his own behalf. He testified that on the day in question, the victim was in his apartment when he got home from work and she threatened that if she caught him with another woman, she would kill him. He further testified that the alleged victim had, in fact, been the aggressor and that he had acted only in self-defense. On cross-examination, the prosecutor explored the defendant's claim that he was the peaceful victim of Ms. Nelson's aggression. Defendant told the prosecutor that he believed that domestic violence was wrong and that he had never been violent with Ms. Nelson or anyone else.[4]

Before presenting its rebuttal case, the state asked the court to reverse its pretrial ruling excluding the 1991 incident of defendant's domestic violence against Estelle Carter. The state argued that defendant's testimony on both direct and cross-examination opened the door to the same. The trial court agreed.

On rebuttal, the State called Estelle Carter. She testified that she used to be the defendant's girlfriend and that they had lived together. She further testified that defendant used his fists and a weapon to beat her about the face and head during their relationship.

The jury returned a verdict of not guilty as to the aggravated battery, but guilty as to aggravated assault with a deadly weapon, kidnaping and battery. The trial court sentenced the defendant to imprisonment in state prison for ten years with a three year mandatory minimum term as to the aggravated assault with a deadly weapon; five years with a three year mandatory minimum as to the kidnaping; and 424 days in Dade County Jail (credit for time served) as to the battery. Sentences on each count were to run concurrent with each other. This appeal follows.

I.

Defendant raises four issues in this appeal, three of which are worthy of discussion. First, he argues that the trial court erred by admitting the Williams rule evidence. We disagree. In response to the state's notice of intent to rely on evidence of other crimes, defendant recorded what appears to have been an ore tenus motion in limine to exclude all such evidence. During argument on this motion, defense counsel conceded that defendant would assert a claim of self-defense at trial. The state responded that it sought to introduce the evidence to prove defendant's intent to injure, and, in the case of the kidnaping charge, to terrorize the alleged victim. The court ruled that it would admit evidence of the battery committed upon the alleged victim ten months earlier, but granted defendant's motion to *1180 exclude any mention of the crimes committed against alleged victim Carter in 1991.[5]

We agree with the trial judge that evidence of defendant's prior violent behavior towards Ms. Nelson was relevant to prove his intent to commit the crimes of aggravated battery, aggravated assault and battery. It was also relevant to prove his intent to terrorize her as charged in the kidnaping count of the Information. Accordingly, this evidence was admissible under section 90.404(2)(a), Florida Statutes (1997). See King v. State, 436 So.2d 50 (Fla.1983); Brown v. State, 611 So.2d 540 (Fla. 3d DCA 1992); Worden v. State, 603 So.2d 581 (Fla. 2d DCA 1992); State v. Everette, 532 So.2d 1124 (Fla. 3d DCA 1988); Hyer v. State, 462 So.2d 488 (Fla. 2d DCA 1984); Goldstein v. State, 447 So.2d 903 (Fla. 4th DCA 1984).

During his direct examination defendant testified that he was the true victim in the present case. He stated that on the day in question the victim had come at him with a gun; that she violently pistol whipped him and that she had repeatedly threatened him with violence in the past. He said that as a result of her past violent behavior he had been forced to secure restraining orders against her. On cross-examination he added that he objected to domestic violence, denied ever being violent with Ms. Nelson or anyone else and generally portrayed himself as the peaceful victim of a very jealous and aggressive woman.

This testimony opened the door to the second instance of domestic violence, which had been previously excluded but which was ultimately correctly allowed into evidence to impeach defendant's untruthful testimony during both his direct and cross-examination. See Bozeman v. State, 698 So.2d 629, 630-31 (Fla. 4th DCA 1997)("To open the door to evidence of prior bad acts, the defense must first offer misleading testimony or make a specific factual ass

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Simmons v. State, 790 So. 2d 1177, 2001 WL 811042 (Fla. Ct. App. 2001).

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