IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JAMES ALBERT TAYLOR,

Appellant,

v. Case No. 5D17-1912

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed September 28, 2018

Appeal from the Circuit Court 

for Flagler County,

Dennis Craig, Judge.

James S. Purdy, Public Defender, and 

Steven N. Gosney, Assistant Public 

Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Kristen L. Davenport, 

Assistant Attorney General, Daytona 

Beach, for Appellee.

LAMBERT, J.

James Albert Taylor appeals his conviction for lewd or lascivious molestation of 

T.F., a child less than twelve years of age, in violation of section 800.04(5)(a)-(b), Florida 

Statutes (2013). Taylor raises three issues on appeal. We find no merit to Taylor’s 

arguments that section 800.04(5)(a) is either unconstitutionally vague or overbroad and 
2

that certain comments made by the State in its closing arguments require reversal, and 

we do not address them any further. We do, however, agree with Taylor’s first argument 

that the trial court erred in admitting into evidence, over objection, collateral crime or 

similar fact testimony that Taylor had previously committed a sexual battery upon the 

victim’s then twelve-year-old sister, L.G.

In the sole count of the information, the State alleged that between August 20, 

2013, and November 6, 2013, Taylor unlawfully and intentionally touched T.F., a person 

less than twelve years of age, in a lewd and lascivious manner, on the breast, genitals, 

genital area, or buttocks, or the clothing covering them, contrary to section

800.04(5)(a)-(b), Florida Statutes. At the time, Taylor was T.F.’s stepfather. T.F. would 

later testify at trial that when she was approximately ten or eleven years old, Taylor came 

into the bedroom that T.F. shared with a different sister, J.F., and that while T.F. was lying 

in her bed, Taylor touched her breast for a couple of seconds over the t-shirt that she was 

wearing. When T.F. began to move, Taylor abruptly left the room.

During the pendency of the case, the State filed what is commonly referred to as 

a “Williams Rule”1 notice under section 90.404(2)(a), Florida Statutes (2017), providing 

notice of its intent to use similar fact evidence of other crimes, wrongs, or acts at trial for 

various reasons as provided in the statute.2 Because Taylor was charged with a crime 

involving child molestation, pursuant to section 90.404(2)(b)1., evidence of his

commission of other crimes, wrongs, or acts of child molestation was admissible and 

 1 Williams v. State, 110 So. 2d 654 (Fla. 1959).

2 The State’s intended purposes for this evidence at trial, according to its notice,

were to prove “motive, intent, common scheme or plan, absence of accident or 

mistake/consent, and identity.”
3

could be considered for its bearing on any matter to which it was relevant. The State 

listed five witnesses in its notice, including the victim, that it intended to call at trial to 

testify as to prior acts of child molestation3 committed upon them by Taylor.

Following a pretrial evidentiary hearing, the trial court entered an order permitting 

T.F. to testify about an earlier, uncharged act of sexual misconduct committed upon her 

by Taylor. The court also allowed T.F.’s sister, J.F., to testify about similar acts of 

molestation committed upon her by Taylor when he would come into J.F.’s bedroom and 

touch her while she appeared to be sleeping in her bed. Taylor has not challenged these 

rulings on appeal. The admissibility of the similar fact or collateral crime testimony of 

T.F.’s other sister, L.G., is at issue here.4 

In its notice, the State asserted that when L.G. was approximately twelve years old 

and living with her mother, Taylor, and her two sisters, Taylor “forced [L.G.] on the bed, 

took her clothes off, and forcefully inserted his penis in her vagina.” At the pretrial hearing, 

L.G. provided further context to this act, testifying that she had just finished taking a 

shower and was putting her dirty clothes in a clothes bin located in the bedroom that 

Taylor shared with L.G.’s mother. At that point, Taylor “pinned” L.G. onto his bed so that 

she could not get up and “stuck his penis in [her]” for what seemed like a “long time.” L.G. 

also testified at the pretrial Williams Rule hearing to some unspecified but inferentially 

improper “touching” by Taylor immediately prior to the sexual battery.

 3 The definition of “child molestation” is set forth in section 90.404(2)(b)2.

4 The court excluded the testimony of the other two Williams Rule witnesses, who 

were not related to the victim or to Taylor. This ruling has not been challenged.
4

In its written order allowing L.G.’s testimony at trial, the court first found that this 

incident was established by clear and convincing evidence. The court recognized the 

great risk in admitting this evidence at trial due to its “highly prejudicial” nature based on

the severity of the collateral crime in relation to the charged crime, but it found that

Taylor’s touching of L.G. prior to the sexual battery was similar to the alleged touching of

the victim of the charged crime. The court also found that the probative value of the 

collateral crime evidence was great not only to show Taylor’s intent and lack of mistake 

but also to corroborate T.F.’s testimony of the molestation.

The admissibility of collateral crime or similar fact evidence is within the discretion 

of the trial court as limited by the rules of evidence. LaMarca v. State, 785 So. 2d 1209, 

1212 (Fla. 2001). Nevertheless, as recognized by our sister court, “such discretion is not 

unfettered” in child molestation cases, Cotton v. State, 176 So. 3d 310, 313 (Fla. 3d DCA 

2015), even though section 90.404(2)(b)1. broadened the admissibility of similar fact 

evidence. See McLean v. State, 934 So. 2d 1248, 1258-59 (Fla. 2006) (acknowledging 

that the 2001 enactment by the Legislature of section 90.404(2) broadened the 

admissibility of a defendant’s commission of other acts of child molestation). 

As our court has previously explained, relevancy still remains the threshold

consideration for the trial court in this type of case when deciding whether to admit prior 

acts of child molestation. Fiore v. State, 967 So. 2d 995, 997-98 (Fla. 5th DCA 2007) 

(quoting Triplett v. State, 947 So. 2d 702, 703-04 (Fla. 5th DCA 2007)). In McLean, the 

Florida Supreme Court explained the trial court’s gatekeeping function in conducting this

threshold consideration to determine whether to admit similar fact or collateral crime 

evidence in child molestation cases:
5

[T]he similarity of the prior act and the charged offense 

remains part of a court’s analysis in determining whether to 

admit the evidence in two ways. First, the less similar the prior 

acts, the less relevant they are to the charged crime, and 

therefore the less likely they will be admissible. Second, the 

less similar the prior acts, the more likely that the probative 

value of this evidence will be “substantially outweighed by the 

danger of unfair prejudice, confusion of issues, misleading the

jury, or needless presentation of cumulative evidence.” 

§ 90.403.

The similarity of the collateral act of molestation and charged 

offense is a critical consideration for the trial court in 

conducting an appropriate weighing under section 90.403. 

The trial courts are gatekeepers in ensuring that evidence of 

prior acts of child molestation is not so prejudicial that the 

defendant is convicted based on the prior sexual misconduct.

934 So. 2d at 1259.

Admittedly, and as recognized by the trial court, there are some similarities here 

between the charged offense against the victim and the collateral crime evidence 

regarding L.G. Both children are female and were of similar age at the time of the 

respective incidents, and the offenses occurred in the home involving their stepfather. 

However, the dissimilarities between the charged offense and the collateral crime 

evidence are significant. The victim was touched on the top part of her breast over her tshirt for a matter of a couple of seconds. The collateral crime evidence showed Taylor 

forcefully “pinning” L.G. on his bed in a manner that prevented her from getting up, then 

inserting his penis in L.G. for what seemed like a “long time.”5

As previously indicated, the trial court recognized in its order that the charged 

offense was less severe than the collateral crime and thus there was a greater risk of 

 5 At trial, L.G. changed her testimony to reflect that the sexual battery took place 

“in the blink of an eye.”
6

prejudice in admitting testimony regarding the collateral crime, but it reasoned that the 

“touching [of L.G.] prior to the sexual [battery] was similar” but that Taylor just “went further 

and committed the final act.” We believe that the collateral crime evidence presented 

during trial was unduly prejudicial and should have been excluded. First, there was no 

testimony at the pretrial hearing as to the specific nature of Taylor’s “touching” of L.G. 

prior to committing the sexual battery. Second, unlike at the pretrial hearing, L.G. did not 

testify at trial as to any “touching” by Taylor, only the sexual battery, thus making the trial 

evidence of the sexual battery committed on her even less similar to the charged crime 

and therefore less relevant and even more prejudicial than probative under McLean. 

Finally, even if the “touching” of L.G. was in fact similar to the alleged molestation of the 

victim, the jury had already heard other collateral crime or similar fact evidence from both 

the victim and another sister. 

“Collateral crime evidence violates a defendant’s right to due process if it is so 

prejudicial that it denies the defendant a fair trial.” McLean, 934 So. 2d at 1261 (citing 

United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001); United States v. Castillo, 

140 F.3d 874, 883 (10th Cir. 1998)). Such evidence “is inherently prejudicial because it 

creates the risk that a conviction will be based on the defendant’s bad character or 

propensity to commit crimes, rather than on proof that he committed the charged offense.” 

Gartner v. State, 68 So. 3d 986, 988 (Fla. 5th DCA 2011) (citing McLean, 934 So. 2d at 

1255). Given the significant dissimilarities between the charged crime and the collateral 

crime of the prior sexual battery committed by Taylor upon L.G., combined with the 

admittedly highly prejudicial nature of this evidence, and in light of the other similar fact 
7

evidence properly admitted, we conclude that the trial court abused its discretion in

admitting evidence of the sexual battery committed upon L.G. 

Finally, we reject the State’s argument that the admission of this testimony was 

harmless error. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Accordingly, 

we reverse Taylor’s judgment and sentence and remand for a new trial.6 

REVERSED and REMANDED.

EVANDER and EDWARDS, JJ., concur.

 6 We do not foreclose the potential admissibility on retrial of Taylor’s alleged 

improper touching of L.G. prior to the sexual battery as similar fact or collateral crime

evidence under section 90.404(2)(b). This determination is best left initially to the trial 

court after hearing further evidence of the nature of the touching. Cf. Cotton, 176 So. 3d 

at 315 & n.5 (approving the admission of similar fact evidence of lewd or lascivious 

conduct committed by the defendant against the victim’s two sisters but finding that the

trial court abused its discretion in also permitting introduction of the defendant’s prior 

sexual batteries of the sisters).