FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-3059

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TONY ANTHONY SIMMONS JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Santa Rosa County.

Darlene F. Dickey, Judge.

June 19, 2024

ROWE, J.

Tony Anthony Simmons appeals his convictions for three 

counts of capital sexual battery. He argues that the trial court 

erred in allowing the admission of similar fact evidence of other 

crimes, wrongs, or acts of child molestation and in imposing the 

cost of prosecution. As to the latter, we affirm for the reasons 

stated in Parks v. State, 371 So. 3d 392 (Fla. 1st DCA 2023). We 

also affirm as to the trial court’s evidentiary ruling.

Facts 

When the victim was fifteen, she confessed to her mother that 

Simmons had sexually abused her when she was between the ages 

of five and seven years old. Her mother immediately reported the 
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conduct to the Santa Rosa County Sheriff’s Office. During its

investigation, the Sheriff’s Office discovered that multiple 

complaints had been filed against Simmons for sexual misconduct, 

including charges for sexual battery, lewd and lascivious 

molestation, and child abuse against another child victim. The 

State agreed to allow Simmons to plead guilty to child abuse 

against the victim in that case in exchange for the State dismissing 

the other charges. 

Then, in this case, the State moved to introduce the dismissed

charges in the other case and to present the other child victim’s 

testimony as similar fact evidence of other crimes, wrongs, or acts 

under Florida Rule of Evidence 90.404(2)(b). At an evidentiary 

hearing on the State’s motion, the other child victim testified about 

Simmons’ sexual abuse. When the other child victim was fourteen, 

she confessed to her mother that Simmons had sexually abused 

her between the ages of eight and thirteen years old. Like the 

victim here, the conduct involving the other child victim occurred 

in Simmons’ home and at the same location within the home. The 

State posed questions to elicit testimony from her to which she 

responded in the affirmative. For instance, when asked if Simmons 

touched her in a sexual manner, she responded, “yes.” When asked 

if Simmons escalated the conduct from touching her to engaging in 

sexual intercourse, the other child victim responded, “yes.” She

then gave detailed testimony on when the conduct began, where it 

occurred, and statements Simmons made during the conduct. The 

other child victim also testified about an incident when the victim 

here witnessed Simmons’ abuse of her. She testified that the acts 

occurred “every day for four years.”

The State argued that the other child victim’s testimony and 

Simmons’ prior charges were admissible as similar-fact evidence 

of other crimes, wrongs, or acts. The victims were similar in age, 

shared similar experiences, and the sexual conduct occurred at the 

same location. Simmons raised three objections, which he repeats

on appeal: (1) the State did not present clear and convincing 

evidence that the prior acts against the other child victim occurred, 

(2) the evidence is inadmissible because the State nolle prossed 

the prior charges against Simmons involving the other victim, and 

(3) the other child victim’s testimony was not credible as to the 

frequency of the abuse and was unduly prejudicial. 
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The trial court found that the similar-fact evidence of 

Simmons’ acts against the other child victim was admissible.

When weighing whether the probative value of the prior acts 

outweighed its prejudice, the court expressed concern that the 

other child victim testified that the acts occurred “every day for 

four years.” The court asked the State to tailor that portion of the 

witness’ testimony so it would not become a feature of the trial. 

The court ruled that defense counsel could use the statement about 

the frequency of the conduct to impeach the other child victim. But 

the court cautioned counsel against opening the door because the 

other child’s testimony could become a feature of the trial. 

Before the other child victim testified at trial, defense 

renewed its objection to the similar-fact evidence of other crimes, 

wrongs, or acts of child molestation. The trial court overruled the 

objection, and the jury heard testimony from the other child victim. 

The jury found Simmons guilty of three counts of sexual battery. 

The trial court sentenced him to life in prison. This timely appeal 

follows. 

Analysis

When a defendant is charged with child molestation, relevant 

evidence of the defendant’s commission of other crimes, wrongs, or 

acts of child molestation is admissible under Florida Rule of 

Evidence 90.404(2)(b) 1.–2.; Williams v. State, 110 So. 2d 654, 662

(Fla. 1959) (holding that collateral crime evidence may be 

admissible if it is relevant to a material issue in dispute). To admit 

evidence of similar-fact evidence, the trial court must first find 

that the State proved the prior acts by clear and convincing 

evidence. McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006). For 

the trial court to find the evidence clear and convincing, “the 

evidence must be found to be credible; the facts to which the 

witnesses testify must be distinctly remembered; the testimony 

must be precise and explicit and the witnesses must be lacking in 

confusion as to the facts in issue.” In re Watson, 174 So. 3d 364, 

369 (Fla. 2015) (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 

(Fla. 4th DCA 1983)). Then, the court must balance whether the 

probative value of the evidence is substantially outweighed by the 
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unfair prejudice to the defendant under section 90.403. McLean, 

934 So. 2d at 1261–62. 

Simmons raises three challenges to the similar-fact evidence 

of his prior acts against the child victim. We review for an abuse of 

discretion the trial court’s ruling on the admissibility of the 

evidence. Ivey v. State, 374 So. 3d 924, 926 (Fla. 1st DCA 2023). As 

we will explain, the trial court did not abuse its discretion in 

admitting the similar-fact evidence. 

First, Simmons argues that the State did not prove the prior 

acts by clear and convincing evidence because the other child 

victim’s testimony consisted mainly of “yes” responses to the 

State’s questions. But the record refutes this argument. 

The record shows the trial court found the other child victim

credible by evaluating not only her verbal testimony, but her 

nonverbal demeanor. The court observed on the record that the 

other child victim appeared timid, hesitant, and scared while 

testifying. She cried during her testimony, and she never looked in 

Simmons’ direction while in the courtroom. See Foster v. State, 929 

So. 2d 524, 537 (Fla. 2006) (“[T]he trial court has the superior 

vantage point to see and hear the witnesses and judge their 

credibility.”) (citations and quotations omitted).

The record does show that the other child victim responded

“yes” to several of the State’s specific questions about the sexual 

conduct. But a question is not leading simply because it calls for a 

yes or no answer. “Instead, a question is leading when it points out 

the desired answer.” Happ v. State, 922 So. 2d 182, 192 (Fla. 2005); 

see also Porter v. State, 386 So. 2d 1209, 1211 (Fla. 3d DCA 1990) 

(“[A] question which suggests only the answer yes is leading; a 

question which suggests only the answer no is leading; but a 

question which may be answered either yes or no, and suggests 

neither answer as the correct one, is not leading.”).

In any event, even some of her testimony consisted of “yes” 

responses to show the type of sexual conduct she had with 

Simmons, the record also shows that the other child victim

distinctly remembered the prior acts and described them with 

particularity. Based on the totality of her testimony and the trial 
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court’s evaluation of her nonverbal demeanor, the record supports 

the trial court’s finding that the State presented clear and 

convincing evidence to prove that Simmons committed the prior 

acts against the other child victim. 

In his second issue, Simmons argues that the similar-act

evidence was inadmissible because the State nolle prossed the

criminal charges related to the other child victim. This argument 

fails because Florida law is clear that even when the State nolle 

prosses charges, the facts supporting the dismissed charges may 

be admissible. Holland v. State, 466 So. 2d 207, 209 (Fla. 1985). 

This is because unlike an acquittal, the State’s decision to nolle 

pros charges is not necessarily related to the strength of the 

evidence. Id. Nothing in the record shows that Simmons’ charges 

of sexual battery and lewd and lascivious molestation in the other 

child victim’s case were nolle prossed because of the strength of the 

evidence. And so, the trial court did not abuse its discretion in 

rejecting this objection to the similar-act evidence. 

Last, Simmons asserts that one statement the other child 

victim made during the evidentiary hearing—that the sexual 

abuse occurred “every day for four years”—was implausible. He 

argues that the trial court’s refusal to allow him to impeach the 

other child victim with this statement at trial prejudiced him. This 

argument fails, too. 

In cases involving sexual conduct against a child, when the 

State introduces evidence of collateral crimes, “the trial court must 

guard against allowing the collateral-crime testimony to become a 

feature of the trial.” McLean, 934 So. 2d at 1262. 

Although the other child victim testified that the sexual acts 

against her occurred “every day for four years,” and while the 

number of times the act occurred may seem implausible, the trial 

court found her testimony taken as a whole to be clear and 

convincing. See Foster, 929 So. 2d at 537. The trial court also 

carefully examined whether the probative value of the evidence 

would be substantially outweighed by the unfair prejudice to 

Simmons. See McLean, 934 So. 2d at 1259 (“The trial courts are 

gatekeepers in ensuring that evidence of prior acts of child 

molestation is not so prejudicial that the defendant is convicted 
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based on the prior sexual misconduct.”). After considering the 

potential prejudice to Simmons, the trial court limited the State’s 

questioning of the other child witness and prohibited the State

from eliciting testimony about the number of sex acts. And then 

when defense counsel asked the trial court if Simmons could open 

the door to that same evidence to impeach the other child victim,

the trial court cautioned defense counsel that he could do so at his 

own risk. Simmons was not restricted from impeaching the other 

child victim as to the frequency of the abuse against her but he 

chose not to cross-examine the witness on this issue. Based on the 

record here, we find no abuse of discretion by the trial court in 

allowing the other child victim’s testimony on the frequency of the 

abuse by Simmons. 

Conclusion

Because the trial court did not commit any reversible error in

admitting the similar-act evidence, we AFFIRM Simmons’ judgment 

and sentence.

NORDBY and LONG, 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.

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Jessica J. Yeary, Public Defender, and Danielle Jorden, Assistant 

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Christina Piotrowski, 

Assistant Attorney General, Tallahassee, for Appellee.