Background
Logan Torbit was convicted by a jury of sexual battery on a victim who was physically helpless to resist. The case involved extensive sexual activity between Torbit, the victim (T.B.), and two other individuals, Brad Pasinski and J.D. At trial, Pasinski testified as a key witness for the prosecution.
Torbit’s defense strategy was to suggest that Pasinski, not he, was the one who sexually battered T.B. To support this claim, Torbit sought to introduce evidence of an alleged sexual battery Pasinski committed against another woman, B.B., ten months after the incident involving T.B. The defense argued that Pasinski had a “signature move” of trying to eliminate DNA evidence by bathing the victim. In T.B.’s case, Pasinski helped bathe the intoxicated victim. In the later incident, he allegedly told B.B. to shower after the assault.
The defense sought to admit this evidence under section 90.404(2)(c), Florida Statutes, which allows for the admission of collateral sexual offenses. The trial court excluded the evidence. Torbit was found guilty and, despite facing a much longer term, received a three-year prison sentence. He appealed the trial court’s decision to exclude the evidence concerning Pasinski’s alleged collateral crime.
The Court’s Holding
The First District Court of Appeal affirmed the trial court’s conviction, holding that the evidence of Pasinski’s alleged collateral sexual offense was properly excluded. The court rejected Torbit’s argument that the evidence was admissible under the “relaxed standard” of section 90.404(2)(c), Florida Statutes.
Writing for the court, Judge Winokur explained that the plain language of section 90.404(2)(c) explicitly applies only to “evidence of the *defendant’s* commission of other crimes, wrongs, or acts involving a sexual offense.” The statute does not create a “reverse Williams rule” that would allow a defendant to introduce such evidence against a third party, such as a prosecution witness. Because the evidence concerned an act by Pasinski—not the defendant Torbit—the statute was inapplicable.
Furthermore, the court noted that even if the statute could be interpreted to allow such evidence, Torbit had failed to properly preserve the issue for appeal. The defense did not make a sufficient proffer of the excluded evidence, for example, by presenting the testimony of B.B. This failure meant the appellate court could not speculate on the evidence’s admissibility or relevance. The court also observed that Torbit had expressly disclaimed reliance on the traditional “reverse Williams rule” under a different statutory provision, § 90.404(2)(a), which would have required a much higher degree of similarity between the acts.
Key Takeaways
- Section 90.404(2)(c), Florida Statutes, which allows evidence of a defendant’s other sexual offenses, applies only to acts committed by the defendant on trial and cannot be used by the defense to introduce evidence of similar acts by a third party.
- The statute does not create a “reverse Williams rule” for collateral sexual offenses; that defense theory must still rely on the more stringent requirements of section 90.404(2)(a).
- A failure to make a sufficient evidentiary proffer at trial (e.g., presenting what a witness would have testified to) can prevent an appellate court from reviewing the exclusion of that evidence.
- Constitutional arguments regarding the right to present a defense must be specifically raised and ruled upon at the trial court level to be preserved for appeal.
Why It Matters
This opinion clarifies the narrow scope of section 90.404(2)(c) of the Florida Evidence Code, establishing that it is a tool for the prosecution, not the defense. The court’s strict textual interpretation confirms that the relaxed standard for admitting evidence of prior sexual misconduct applies only to the accused, preventing defendants from using it to shift blame to a witness or other third party without meeting the higher “fingerprint” similarity standard of the traditional “reverse Williams rule.”
The decision serves as a critical reminder to defense attorneys about the importance of procedural precision. To challenge the exclusion of evidence on appeal, a comprehensive proffer must be made at trial. It also underscores that constitutional challenges to evidentiary statutes must be explicitly raised and preserved, as courts will not infer them from statutory arguments alone. This ruling solidifies the evidentiary framework in sexual offense cases, reinforcing the distinct rules governing evidence against a defendant versus evidence intended to incriminate a third party.