DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSE LUIS LOPEZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-1859

[May 6, 2015]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; William L. Roby, Judge; L.T. Case No. 432012CF000134.

Margaret Good-Earnest of Good-Earnest Law, P.A., Lake Worth, for 

appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina 

Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for 

appellee.

FORST, J.

Appellant Jose Lopez was convicted of lewd or lascivious molestation 

under section 800.04(5)(b), Florida Statutes (2011), and sentenced to 

twenty-five years imprisonment. Appellant now challenges his conviction 

and sentence. Among other arguments, Appellant contends the trial court 

erred by giving an improper jury instruction concerning collateral crime 

evidence. For the reasons discussed below, we agree and hereby reverse 

Appellant’s conviction.

Appellant was alleged to have touched the clothed buttocks and pelvic

region of an eleven-year-old female friend of his niece. At trial, the State 

presented testimony from the alleged victim, as well as testimony from 

another girl who claimed Appellant also touched her inappropriately. Prior 

to the second girl’s testimony, the trial court read the standard Williams1

Rule instruction, explaining the jury could consider the second girl’s 

testimony only “for the limited purpose of proving intent, and the absence 

1 Williams v. State, 117 So. 2d 473 (Fla. 1960).
2

of mistake or accident on the part of the defendant.” See Fla. Std. Jury 

Instr. (Crim.) 3.8(a).

At the close of evidence, the trial court once again read a Williams Rule 

instruction. This time, however, the trial court read a modified 

instruction, provided by the State, allowing the jury to consider the second 

girl’s testimony for “showing the pattern of conduct with this child victim, 

proof of motive, opportunity, intent, absence of mistake or accident, 

propensity, and/or lustful state of mind.” This second, modified 

instruction was an incorrect statement of the law and, as such, erroneous. 

Section 90.404(2)(a), Florida Statutes (2011), allows for the 

introduction of collateral act evidence “when relevant to prove a material 

fact in issue, including, but not limited to, proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident, but it is inadmissible when the evidence is relevant solely to 

prove bad character or propensity.” This general rule is modified when a 

defendant is charged with a crime involving child molestation. In that 

case, “evidence . . . of other crimes, wrongs, or acts of child molestation . 

. . may be considered for its bearing on any matter to which it is relevant.” 

§ 90.404(2)(b)(1), Fla. Stat. (2011). 

The Florida Supreme Court elaborated on the statute’s criteria for the 

proper usage of collateral act evidence in child molestation cases in 

McLean v. State, 934 So. 2d 1248 (Fla. 2006). In that case, the Supreme 

Court held that the admission of collateral crime evidence under section 

90.404(2)(b) was constitutional when used to corroborate the victim’s 

testimony rather than to prove the identity of the perpetrator. Id. at 1248.

However, McLean also provided guidelines for when collateral crime 

evidence was appropriate. In addition to requiring the State to prove the 

collateral acts by clear and convincing evidence, weighing the probative 

value of the evidence against its potential unfair prejudice, and limiting 

the usage of the collateral act evidence so that it does not become “a 

feature of the trial,” the trial court is required, where appropriate, to give 

an instruction limiting the use of the collateral act evidence. Id. at 1251-

56. 

“Collateral crime evidence becomes an impermissible ‘feature’ where 

collateral act evidence ‘overwhelms’ evidence of the charged crime and 

becomes ‘an impermissible attack on the defendant’s character or 

propensity to commit crimes.’” Grier v. State, 27 So. 3d 97, 101 (Fla. 4th 

DCA 2009) (quoting Samuels v. State, 11 So. 3d 413, 418 (Fla. 4th DCA 

2009)). We acknowledge that there is a fine line the State must walk when 

seeking to introduce collateral act evidence. The approved use of such 
3

evidence to show corroboration of a victim’s testimony can very easily 

devolve into an impermissible attack on a defendant’s character or 

propensity to commit crimes. While it is imperative the State refrain from 

misusing collateral act evidence, the trial court also has an obligation to 

properly instruct the jury on the acceptable uses of the evidence. Here, 

the erroneous jury instruction (compounded by the State’s repeatedly 

calling Appellant a “child molester,” as discussed below) tainted what may 

have once been admissible evidence by explicitly allowing the jury to 

consider the collateral act evidence for propensity and/or lustful intent. 

This permitted the jury to infer Appellant’s guilt of the charged crime based 

on the accusation of an uncharged crime and asserted propensity to 

commit crimes of this nature.

We also caution future courts to be mindful of the use of inflammatory 

and prejudicial language during trial. In this case, the State repeatedly 

referred to Appellant as a “child molester.” The term child molester 

includes intrinsic negative connotations and is highly likely to evoke an 

emotional response from jurors. Describing a criminal defendant with 

such a loaded term encourages the jury to presuppose guilt. The use of 

such language is therefore unduly prejudicial and should be avoided. See 

Petruschke v. State, 125 So. 3d 274, 279-80 (Fla. 4th DCA 2013) (holding 

that the prosecutor’s use of the word “pedophile” to describe a defendant 

was reversible error).

Trials involving charges of this nature are inherently emotionally 

charged. In the instant case, the trial court’s second Williams Rule 

instruction improperly allowed the jury to consider collateral act evidence 

to show Appellant’s propensity to commit the charged crime and this error 

was exacerbated by permitting the State to refer to Appellant as “a child 

molester.” Consequently, Appellant’s conviction is hereby reversed and 

his case remanded to the trial court for a new trial. 

Reversed.

DAMOORGIAN, C.J., and CONNER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.