JEREMAINE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in admitting evidence of prior abuse without sufficient proof that the appellant committed the prior abuse.
[1] Evidence of prior abuse is inadmissible unless the trial court first determines by clear and convincing proof that the defendant committed the prior abuse.
[2] The admission of evidence of prior abuse, without proof connecting the defendant to that abuse, constitutes reversible error.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of misdemeanor child abuse after evidence of prior abuse (old rib fractures) was admitted at trial. The prosecution presen…
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ALLEN, Judge.
In this direct criminal appeal, the appellant challenges his conviction for misdemeanor child abuse. Because the trial court erred in admitting evidence of prior abuse in the absence of proof that the appellant committed the prior abuse, we reverse the appellant’s conviction.
The appellant was charged with aggravated child abuse in relation to a head injury sustained by his child. At trial, over proper objection, the prosecution was permitted to introduce evidence that the child’s x-rays revealed old rib fractures that were likely inflicted through abuse. In addition to the prosecution’s three expert witnesses’ testimony regarding the prior abuse, in closing argument the prosecutor argued the importance of the evidence of the old rib fractures: “If there is any doubt about whether or not this child was abused — any forced, speculative, possible doubt — that would do away with it.” At the conclusion of the trial, the jury found the appellant guilty of the lesser included offense of misdemeanor child abuse.
The admission of the collateral crime evidence of prior abuse was error. Assuming the relevancy of the evidence to prove an issue other than bad character or propensity, as a condition precedent to ad mission of the evidence the trial court was required to determine that there was clear and convincing proof that the appellant committed the prior abuse. See, e.g., State v. Norris, 168 So. 2d 541 (Fla.1964); Phillips v. State, 591 So. 2d 987 (Fla. 1st DCA 1991); West v. State, 579 So. 2d 288 (Fla. 3d DCA 1991); see also Charles W. Ehrhardt, Florida Evidence § 404.9, at 168-69 (1997). Because the prosecution did not present evidence connecting the appellant with the prior abuse, evidence of the prior abuse should not have been admitted before the jury.
Under the circumstances of this case, the error cannot be considered harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). We accordingly reverse the appellant’s conviction and remand this ease to the trial court for a new trial.
MINER and PADOVANO, JJ., concur.
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Henrion v. State, 895 So. 2d 1213 (Fla. 2d DCA 2005)…eterminations. The court must first determine whether there is proof of the connection between the party against whom the evidence is offered and the collateral occurrences.4 See Robertson v. State, 829 So. 2d 901, 907-08 (Fla.2002); Smith v. State, 700 So. 2d 446, 447 (Fla. 1st DCA 1997). The offering party is required to prove the defendant’s connection with the similar act by clear and convincing evidence. Bryant v. State, 787 So. 2d 904, 905 (Fla. 2d DCA 2001); Preciose v. State, 829 So. 2d 381 (Fla. 4th…
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Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Ethorn Buie v. L. D. Johnson & Sons, Inc., 168 So. 2d 541 (Fla. 1964)
- West v. State, 579 So. 2d 288 (Fla. 3d DCA 1991)
- Donnie Wayne Phillips v. State, 591 So. 2d 987 (Fla. 1st DCA 1991)