TRAVIS CHRISTOPHER JAKUBOWSKI

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-1074 _____________________________

TRAVIS CHRISTOPHER

JAKUBOWSKI,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County. Linda McCallum, Judge.

December 31, 2019

B.L. THOMAS, J.

Appellant was charged with and convicted of sexual battery of a person over age twelve with the use or threatened use of a deadly weapon and burglary with assault or battery, and the court sentenced Appellant to thirty years imprisonment, along with lifetime sex offender probation. Appellant challenges the trial court’s admission of collateral-crime evidence and certain statements made under the hearsay exception for medical diagnosis and treatment. The victim was watching a neighbor’s child when Appellant knocked on the door and inquired about some furniture outside the

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residence. The victim told Appellant that he could take the furniture and then he turned around and left. The victim went to another part of the house, and when she came back Appellant was standing inside the living room. The victim attempted to run outside but Appellant grabbed her and forced her into the bathroom. While they were struggling in the bathroom, Appellant pulled out a knife. Appellant then made the victim go into the bedroom where he sexually battered the victim.

After an evidentiary hearing, the trial court allowed the State to admit collateral-crime evidence of a woman who suffered a similar attack. The woman testified on behalf of the State at Appellant’s jury trial. She testified that a man knocked on her front door in the early afternoon and asked if someone lived at the apartment. She told the man that that person did not live there, and then closed the door.

Later that same day, she was smoking a cigarette on her front stoop when the man walked up again. They had a friendly conversation until she had to return inside to take care of her son. When she turned around from making her son a bottle, the man was inside her house. The man exposed himself then grabbed her and attempted to take her clothes off. He touched her in inappropriate places over her clothes. Eventually he stopped and left in a white vehicle. She was unaware what made him stop, but she remembered that the door was still open during the attack.

The registered nurse who examined the victim after the incident also testified at trial. The trial court allowed her to read the report. Defense counsel objected to the introduction of this evidence.

Appellant first argues that the trial court abused its discretion in admitting the collateral-crime evidence at trial. “[E]vidence revealing other crimes is admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried.” Williams v. State, 110 So. 2d 654, 662 (Fla. 1959).

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Testimony concerning a collateral crime is admissible when it is used to show a common scheme that corroborates the victim’s testimony. Id.; Vice v. State, 39 So. 3d 352, 355 (Fla. 1st DCA 2010). It is also admissible to prove intent as to the crime in question. Jensen v. State, 555 So. 2d 414, 415 (Fla. 1st DCA 1989).

The events that occurred in the collateral crime were substantially similar to the events that occurred in the present case. They were relevant to show that Appellant had a common scheme or plan. The evidence corroborated the victim’s testimony, which was challenged after the defense presented evidence questioning the victim’s motive for pursuing the case. Additionally, intent was a material issue in this case because Appellant was charged with burglary. A defendant must have intent to commit a crime within a dwelling to be guilty of burglary with assault or battery. § 810.02(1)(b), Fla. Stat. (2018).

The State did not make the collateral-crime evidence a feature of the trial and the trial court properly read the relevant jury instruction. As a result, the trial court did not abuse its discretion in admitting the collateral-crime evidence.

Appellant also contends that the trial court abused its discretion by allowing the nurse to read her report of the victim’s statement as a hearsay exception for medical diagnosis and treatment. Section 90.803(4), Florida Statutes, admits statements that describe medical history, symptoms, or the inceptions of the cause of a person’s injuries, if the statements are reasonably pertinent to diagnosis or treatment. However, statements of fault are generally inadmissible. Torres-Arboledo v. State, 524 So. 2d 403, 407 (Fla. 1988).

Some of the victim’s statements from the nurse’s report were not within the hearsay exception for medical diagnosis or treatment. However, there were statements that fell within the hearsay exception and were properly admitted.

A harmless error analysis must be conducted regarding the statements that were improperly admitted. Florida appellate courts have held the admission of statements that do not qualify

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as statements for medical diagnosis or treatment to be harmless, if the victim testifies to the same information. Roberts v. State, 990 So. 2d 671, 673 (Fla. 4th DCA 2008); Middleton v. State, 760 So. 2d 251, 252 (Fla. 4th 3d DCA 2000); see also Esteban v. State, 967 So. 2d 1095, 1099 (Fla. 4th DCA 2007).

The trial court’s admission of the nurse’s testimony was harmless error. The statements that did not fall within the hearsay exception were testified to by the victim.

Thus, the nurse’s testimony during which she read her report was merely cumulative when considered in light of the other evidence presented at trial. Although the trial court erred in admitting hearsay statements within the report, the error was harmless beyond a reasonable doubt as there is no reasonable possibility the error affected the verdict. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).

AFFIRMED.

KELSEY and WINOKUR, JJ., concur.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.