When Is Collateral Crime Evidence Admissible in Florida Sexual Battery Cases?

April 10, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In 1993, Florida’s 1st District Court of Appeal allowed admission of collateral crime evidence in a sexual battery by a person in familial or custodial authority prosecution – but was reversed by the Florida Supreme Court. A decade later, however, the Florida Supreme Court indicated that a new statute made the 1st DCA opinion applicable (again).

Sexual Battery by a Person in Familial or Custodial Authority in Florida

In Florida, sexual battery by a person in familial or custodial authority (Fla. Stat. 794.011(8)) is a very serious offense. For someone to be guilty, the State must prove all of the following beyond a reasonable doubt:

• The defendant engaged in an act that constituted sexual battery on the victim
• At the time, the victim was a minor (under age 18)
• At the time, the defendant was in a position of familial or custodial authority to the victim

Sexual battery by a person in a position of familial or custodial authority is a first-degree, PBL felony in Florida. This means it is punishable by up to life in prison. Moreover, a defendant is ineligible to avoid sex offender/predator registration if convicted. For more on this, click here.

The impact of the “familial or custodial authority” enhancement is especially significant if the victim was between 12 and 17 and “willingly participated” in (but could NOT legally consent) to the conduct. 

If an adult (18+) engages in sexual activity that the alleged victim willingly participated in, this is usually considered lewd or lascivious battery or lewd or lascivious molestation if the victim is 12 to 15. If the victim is 16 or 17, it is considered unlawful sexual activity with certain minors.

But if someone is charged as a person in a position of familial or custodial authority, the crime is automatically a PBL felony regardless of whether the victim willingly participated. The statute does not recognize the difference because of the power imbalance that exists between a person in familial/custodial authority and the victim. State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999) 

Note: Even though this enhancement automatically kicks in, courts have been clear that someone may (under rare circumstances) be eligible for a downward departure sentence (e.g. lighter than what is recommended by CPC scoresheet guidelines) on the basis of willing victim participation. For more, click here.

A common question if someone is charged (or knows someone charged) with sexual battery by a person in familial or custodial authority is – when is someone considered to be in a position of familial or custodial authority at the time of the act? 

For a defendant to be considered in a position of familial or custodial authority, at least one of the following must have been true at the time of the offense (Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986)): 

• They maintained a “close relationship” (like that of a parent or guardian) with the alleged child victim or other children of the specified age
• They lived in the same household as the alleged child victim

One of the most contentious issues in sexual battery by a person in familial or custodial authority prosecution is admission of collateral crime evidence. 

Generally, collateral crime evidence is admissible “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.” This is commonly referred to as “Williams Rule” evidence, and is codified by Fla. Stat. 90.404.

Collateral crime evidence is inadmissible when the evidence is relevant solely to prove bad character or propensity. Using “uncharged conduct” as a cudgel to beat down the character of a defendant (e.g. to make the jury think they are a bad person) when it is irrelevant to the charges is NOT permitted.

The reason for this is because every defendant has the right to due process. If evidence of crimes entirely unrelated to the prosecution of the defendant (but allegedly committed by the defendant) were admitted at trial, it would risk the jury improperly deciding the case based on this – not the evidence. Heuring v. State, 513 So.2d 122 (Fla. 1987)

As you may be able to guess, disputes over collateral crime evidence (also referred to as similar fact evidence) are quite common in the trial context. The State may attempt to offer what it tries to argue is admissible “collateral crime evidence” – but the defense is likely to argue this is not relevant to the charges and is truly being offered as bad character/propensity evidence.

One of the most intriguing areas of Florida’s Williams Rule (e.g. collateral crime evidence) case law has developed in response to defendants challenging sexual battery by a person in familial or custodial authority. 

A major case on this issue was decided by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court) in 1993: Saffor v. State, 625 So.3d 31 (Fla. 1st DCA 1993). There, the defendant (Saffor) was convicted of sexual battery on a minor under the age of 12. The victim was a 10-year-old boy whose relationship to Saffor was “tantamount to a stepson.”

At Saffor’s trial, the victim testified that he was sexually battered by Saffor after he was woken up in the middle of the night. The State then attempted to introduce the testimony of Saffor’s niece – who was 16 at the time of the trial and alleged that 4 years earlier, Saffor had reached into her pants towards her vagina as she was laying in bed, but stopped when she told him to.

Saffor argued that under Fla. Stat. 90.404(2) (governing similar-fact evidence), the testimony of his niece should be excluded from trial. Saffor asserted that the allegations of his niece were not similar enough to the charged crime against his “stepson” (son of his girlfriend). To distinguish them, he argued the following points:

• The sexes of the victims were different (boy in one case, girl in the other)
• The nature of the allegation from his “stepson” was of sexual battery, not just “reaching” as if to digitally penetrate the victim (as he allegedly did to his niece)
• Saffor was in a position of familial or custodial authority to his niece, but NOT to his “stepson”

Nevertheless, the judge ruled to admit the niece’s testimony (pursuant to Fla. Stat. 90.404(2)) – and Saffor was convicted. 

On appeal to the 1st DCA, Saffor argued that the judge erred as a matter of law in allowing the “collateral crime”/similar-fact evidence to be admitted. As the nature of the alleged offenses was quite different, Saffor claimed, he was entitled to a new trial that would not involve the niece’s testimony. 

Saffor further claimed that since he was not truly in a position of familial or custodial authority to the male victim (e.g. it was not Saffor’s actual stepson), this defeated the State’s claim that his niece’s testimony was similar-fact evidence (as Saffor WAS in a position of familial authority to her),

A divided 1st DCA did not agree – and affirmed Saffor’s conviction. Finding that a “less rigid standard of similarity” should be used to assess admissibility of collateral crime evidence (e.g. similar-fact evidence) in sexual battery cases involving minors by alleged family members or custodians, the 1st DCA wrote:

“In Heuring, supra, the court focused on the specific aspects of a sexual battery in a familial context in determining that a less rigid standard of similarity should be utilized in determining the admissibility of collateral crime evidence. The court stated that in cases where identification is not at issue and credibility is the focal issue, the less rigid standard should apply. These circumstances are present in all cases where there is a familial relationship between the victim and the perpetrator, and not just those cases where there is evidence of an authoritative relationship. The focus should be the relationship of the parties and the nature of the crime rather than the extent of the authority exercised by the perpetrator over the victim. Thus, in cases such as Heuring, supra; Calloway, supra; and Grant v. State, 577 So.2d 625 (Fla. 1st DCA 1991), collateral crime evidence was admitted without any discussion of the authority asserted by the alleged perpetrator.”

Concluding that Saffor was in a “similar enough” position to his “stepson” as he was to his niece at the time of that alleged offense, the 1st DCA ruled that the judge did not abuse his discretion by allowing the niece to testify. The 1st DCA majority wrote:

“Even if the appropriate test for application of Heuring required demonstration of an authoritative relationship, the facts in the instant case would meet this criteria. The courts have adopted a flexible standard in defining the necessary authoritative relationship. As pointed out by the third district in Bierer v. State, 582 So.2d 1230 (Fla. 3d DCA 1991), this district in Stricklen v. State, 504 So.2d 1248, 1250 (Fla. 1st DCA 1986), set forth a broad definition of the term “familial” in order to effectuate the statutory purpose of protecting minor children “from predatory influences of older persons who establish close family ties with them.” Additional cases have also eased the burden of proof under such circumstances. In Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), this court recognized that a blood relationship was not necessary.”

“The obvious legislative intent recognized by the court is to dissuade persons from taking advantage of a relationship which is perceived by the child as being one of authority. In the instant case, it is indisputable that a child who is in a vulnerable position, such as asleep in bed, could perceive that an adult member of the family who has access to the bedroom is in a position of authority. The trial judge’s exercise of discretion should not be disturbed. The opinion of the trial court is affirmed.”

Despite this finding, the 1st DCA majority urged the Florida Supreme Court to definitively rule on how “liberal” courts should be in admitting collateral crime evidence in sexual battery by a person in familial or custodial authority cases. The 1st DCA noted:

“We feel, however, that it is important for the supreme court to address the standard to be utilized in determining the admissibility of collateral crime evidence in cases involving sexual battery within the familial context. The issue is the main point raised on appeal in many serious cases brought before the appellate courts of this state, and the supreme court has not addressed this issue since Beasley, supra. In addition, while Heuring and Beasley indicate that a different standard may be utilized in these types of cases, the standard is never specifically addressed. We, therefore, certify the following question to be one of great public importance: WHAT IS THE CORRECT STANDARD TO BE UTILIZED IN DETERMINING THE ADMISSIBILITY OF COLLATERAL CRIME EVIDENCE IN CASES INVOLVING SEXUAL BATTERY WITHIN THE FAMILIAL CONTEXT?”

Judge Erwin of the 1st DCA authored a partially concurring, partially dissenting opinion that was cited by the Florida Supreme Court when it took Saffor’s appeal. Disagreeing with the 1st DCA’s characterization of the niece’s testimony as collateral crime evidence, Judge Erwin concluded the trial judge abused his discretion by admitting it. He wrote:

“I would reverse and remand on the ground that the similar-fact evidence was erroneously admitted because the record fails to establish the existence of a familial-type relationship, and, therefore, the collateral-crime evidence did not meet the “strikingly similar” test required for the admission of same by Heuring v. State, 513 So.2d 122 (Fla. 1987).”

“[N]owhere in the testimony of any witness is there evidence of a relationship between the defendant and victim which could be considered as custodial or familial, thereby affording the defendant with an enhanced opportunity to make sexual advances upon the child victim, who was made more susceptible to those acts by reason of such relationship. Because it appears that no evidence was introduced below showing the existence of a familial or custodial relationship, as discussed by this court in Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986), or Coleman, I would reverse the defendant’s conviction and remand the case for new trial on the ground that the similar-fact evidence admitted failed to meet the general rule of admissibility applied to such evidence outside the familial context, in that it did not comply with the requirement that the charged and collateral offenses not only be strikingly similar, but also share some unique characteristic or combination of characteristics setting them apart from other offenses.”

Judge Erwin essentially concluded Saffor was not in a position of familial or custodial authority to his “stepson.” As a result, he rejected the majority’s conclusion that the niece’s testimony was collateral crime evidence.

Two years passed before the Florida Supreme Court handed down its opinion reversing the 1st DCA: Saffor v. State, 660 So.2d 668 (Fla. 1995). Finding that Saffor’s alleged crime against his niece was so different from the one he was charged with that it could not have reasonably been viewed as collateral crime evidence, the Florida Supreme Court wrote:

“We find that although the collateral sex crime and the charged offense were both committed within the familial context, the evidence of similarity fell short of even the relaxed standard adopted in this opinion. The offenses bore little resemblance to each other. Not only were there obvious differences in the children’s ages and gender, but the acts also took place during different time frames, at different locations, and at different times of the day. The only real similarity was that both offenses were committed while the children were asleep in bed. By itself, this was not enough to meet the similarity requirement discussed above, especially in light of the numerous dissimilarities. We therefore hold that the trial court erred when it admitted the niece’s testimony as collateral sex crime evidence. Accordingly, we quash the decision below and remand the case for a new trial. It is so ordered.”

Over a decade after Saffor v. State, 660 So.2d 668 (Fla. 1995) narrowed the scope of admissible collateral crime evidence in capital sexual battery and sexual battery by a person in familial or custodial authority cases, its abrogation by statute was recognized in another Florida Supreme Court decision – McLean v. State, 934 So.2d 1248 (Fla. 2006).

In McLean, the defendant (McLean) was charged with capital sexual battery. At his trial, both the victim (J.N.) and another alleged victim who was molested by McLean fifteen years earlier testified. The Florida Supreme Court wrote:

“To corroborate J.N.’s testimony, the State sought to introduce evidence of McLean’s prior sexual molestation of another boy, whose last name was Chambers. The State relied on Williams v. State, 110 So.2d 654 (Fla. 1959), and its progeny, as well as recently enacted section 90.404(2)(b). Chambers, twenty-seven at the time of the trial, testified in a pretrial hearing on the admissibility of testimony that when he was twelve, McLean repeatedly molested him. Chambers stated that McLean worked with Chambers’ father in a factory and often spent time with the Chambers family.”

At that time (post-Saffor), the Florida Legislature had just passed Fla. Stat. 90.404(2)(b). That amendment to Florida’s collateral crime evidence statute reads as follows:

“In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.”

Finding the alleged incident to be similar enough to McLean’s charged conduct so as to warrant its admission under Fla. Stat. 90.404(2)(b), the judge effectively put aside Saffor v. State, 660 So.2d 668 (Fla. 1995) and ruled that even though Chambers’s testimony previously would not have been admissible (under Saffor), Fla. Stat. 90.404(2)(b)’s breadth allowed its introduction.

McLean’s appeal eventually made it to the Florida Supreme Court – where he argued the Court should rely upon Saffor in finding Chambers’s testimony DID NOT qualify as collateral crime evidence. 

But the Florida Supreme Court affirmed McLean’s conviction and wrote that the passage of Fla. Stat. 90.404(2)(b) had “changed the game” on this issue. The Court began by acknowledging its existing precedent (e.g. Saffor and its ancestors), writing:

“In sum, under this Court’s decisions, evidence of a collateral act of child molestation is relevant under the Williams rule to corroborate the victim’s testimony in both familial and nonfamilial child molestation cases. We have relaxed the requirement for strict similarity between the charged and collateral offenses in the familial context, but there must be some similarity other than the fact that both offenses occurred in the family. We have not extended the relaxed standard of admissibility to nonfamilial cases. However, in both familial and nonfamilial cases, the required showing of similarity must be made on a case-by-case basis, and the collateral act evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice.”

However, the Court found that Fla. Stat. 90.404(2)(b) broadened the admissibility of “collateral crime evidence” in sexual battery cases involving minors – abrogating (e.g. overruling by law) Saffor v. State, 660 So.2d 668 (Fla. 1995) and its ancestors:

““[L]egislative intent is the polestar that guides a court’s statutory construction analysis. In determining the Legislature’s intent, we look first at the “statute’s plain language.” Reynolds v. State, 842 So.2d 46, 49 (Fla. 2002) … Section 90.404(2)(b) broadly provides that evidence of the defendant’s commission of other acts of child molestation is admissible regardless of whether the charged and collateral offenses occurred in the familial context or whether they share any similarity. To this extent, section 90.404(2)(b) abrogates our decisions in Heuring, Rawls, and Saffor.”

“However, the statute goes on to qualify this general statement by specifying that evidence of other acts of child molestation “may be considered for its bearing on any matter to which it is relevant.” Thus, relevancy remains the threshold question. … Accordingly, the 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.”

Intriguingly, the Florida Supreme Court’s “new” attitude towards the admission of collateral crime evidence in capital sexual battery and sexual battery by a person in familial or custodial authority cases is almost identical to that of the 1st DCA majority’s in Saffor v. State, 625 So.3d 31 (Fla. 1st DCA 1993).

Rather than allowing admission of collateral crime evidence under very narrow circumstances (e.g. when factual allegations/position of the defendant to the victim align, as 1st DCA Judge Erwin advocated), Fla. Stat. 90.404(2)(b) essentially renders the victim-defendant relationship irrelevant so long as:

• The victim of the collateral crime was a minor at the time of the offense, and;
• The victim of the collateral crime was sexually targeted by the defendant in a “similar enough” way as the victim in the instant case – such that the probative value of admitting the testimony of the collateral crime victim is not substantially outweighed by the danger of unfair prejudice (Fla. Stat. 90.403)

Thus, although Saffor v. State, 625 So.3d 31 (Fla. 1st DCA 1993) was overruled by the Florida Supreme Court in 1995, it was effectively reinstated when Fla. Stat. 90.404(2)(b) was passed (though there are some differences between Saffor v. State, 625 So.3d 31 (Fla. 1st DCA 1993) and Fla. Stat. 90.404(2)(b)).

Since McLean v. State, 934 So.2d 1248 (Fla. 2006), the above “two-step test” is now applied to determine the admissibility of collateral crime evidence in sexual battery cases when a minor is the alleged victim. 

In a post-McLean v. State, 934 So.2d 1248 (Fla. 2006) world, what matters is not the relationship between the victim(s) and the defendant – but whether the prior acts (e.g. collateral crimes) are similar enough in nature to the charged crime(s) for the testimony of the collateral crime victim to be relevant.

In sum, Florida courts now apply a flexible standard when deciding if collateral crime evidence may be admitted in sexual battery cases involving defendants who were allegedly in a position of familial or custodial authority. 

Although evidence can’t be introduced solely to show bad character, courts recognize that sexual abuse within a familial context often occurs in private. Thus, testimony about similar acts may be admissible to demonstrate a defendant’s pattern of behavior, particularly if the defendant held a position of authority or trust over the victim (e.g. familial/custodial authority).

However, as McLean v. State, 934 So.2d 1248 (Fla. 2006) makes clear, Florida’s courts must still weigh the probative value of the evidence against the risk of unfair prejudice.

If someone is charged in a case involving alleged sexual battery by a family member or person in custodial authority, it is critical to seek out experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to hefty fines and prison time. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

---

  Social Share