           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                   JOSE REYNA,
                                     Appellant,

                                          v.

                               STATE OF FLORIDA,
                                    Appellee.

                                   No. 4D19-2306

                                 [August 26, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Cheryl    Caracuzzo,      Judge;   L.T.    Case    No.
502015CF004073A.

     Kristen A. Kawass of Law Offices of Kawass, P.A., Miami, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

    We reverse convictions for three counts of sexual battery because the
trial court abused its discretion in admitting evidence of a collateral crime.
We remand for a new trial in which the collateral crime evidence is
excluded.

   The state charged Jose Reyna with three counts of sexual battery under
section 794.011(5)(b), Florida Statutes (2015), by a person eighteen years
of age or older upon a person over eighteen. All three counts arose from
one encounter; count 1 alleged digital penetration of the victim’s vagina,
count 2 alleged oral penetration or union with the victim’s vagina, and
count 3 alleged penile penetration or union with the victim’s vagina.

   The state timely filed a notice of its intent to offer Williams 1 rule
evidence pursuant to section 90.404(2)(c), Florida Statutes (2015). The
state sought to introduce evidence of a separate incident that occurred in


1   Williams v. State, 110 So. 2d 654 (Fla. 1959).
October 2010, described in more detail below. After an evidentiary
hearing, the circuit court ruled that the testimony was admissible.

                         The Evidence at Trial

                             The State’s Case

   The victim testified that she met appellant through his wife, with whom
she worked. She vacationed with the couple and had stayed at their house
in a spare bedroom numerous times after socializing with them. Prior to
the night of the incident, nothing inappropriate had occurred between her
and appellant.

   On January 18, 2015, the victim made plans with the wife to socialize.
The game plan for the evening was to hang out, have fun, and help the
victim forget an unhappy personal matter. The victim went to the Reyna
home the evening of the incident with a packed bag because she was
planning on staying overnight.

   Using her car, the victim drove the Reynas to the Clematis Street area
of West Palm Beach. Their first stop was a wine bar, where they ordered
food, drinks, and a bottle of wine.

   The trio next went to a different bar where they ordered three rounds
of drinks, danced, and had a good time. By the time they left, the victim
testified that she was “buzzed.” Next, the three went to a restaurant,
owned by an acquaintance of the Reynas, for more drinks.

   After leaving the restaurant, the group returned to the Reyna home.
Because the house was being renovated, one of the bedrooms was
unavailable. The Reynas took the other bedroom, and the victim prepared
to sleep on the couch in the living room. The couch was an L-shaped,
sectional couch. Once they arrived at the home, the victim poured herself
a glass of red wine from a bottle in the kitchen and sat on the couch. She
spilled the wine on her t-shirt and changed into something else. Then she
had some tequila.

  The victim fell asleep on the couch. The victim was awakened by
someone kissing her on the mouth. She testified that

      it was kind of one of those like “What is happening?” Once I
      opened my eyes, it was dark. Like dark hair, dark skin. It
      didn’t feel familiar. It didn’t smell familiar. I mean, if that
      even—it just felt very strange and very disorienting. I

                                    2
      remember thinking—and then once I realized what was
      happening, I was just like “What are you doing?” It was just
      such a strange, almost shocking “What are you doing?”

The victim realized that it was appellant. She swatted at him and asked,
“What are you doing?” She told him he needed to go back to bed.

   The victim described the rest of the night as a series of “flashes.” She
kept falling back asleep, only to be awakened by different types of
touching.

  The next time she awoke to appellant kissing her chest, after having
unzipped her fleece pullover. She repeatedly swatted at him, asked him
what he was doing, and told him, “Go to bed with your wife.”

   The next thing the victim remembered was that appellant “put his
hands down my shorts and began to stick his fingers inside of me.” It was
uncomfortable and the victim pushed him away to make him stop. At
another time, she was awakened by appellant performing oral sex upon
her. Concerning the third form of assault, the victim testified that

      at some point, he was in front of me and in between my legs.
      And at some point, I did feel him—I felt him actually put his
      penis inside of me. . . . [When appellant was] on top of me and
      actually was having sex with me, I did finally get my feet up
      on his hips and push him away and say, “No.”

   The prosecutor asked the victim why she didn’t yell or scream during
the events on the couch. The victim explained:

      I mean, this is—this is my friend. This is somebody that I
      know. And also it was—I was completely humiliated that his
      wife was my really good friend. And I didn’t want her to know.
      I didn’t—it was just such a—it wasn’t even that terribly what
      I would call violent. It was just so inappropriate and so
      shocking and so unexpected. I’m not really the type of person
      that would scream or get that terribly emotional, anyway. But
      I—I mean, I didn’t want [the wife] to know what was going on.
      And I did not understand why he was doing it.

  After the final assault, the victim fell asleep. She woke up the next
morning and took a shower. While in the shower, the victim realized that
something was wrong. She had abnormal discharge and cramping in her
abdomen. She threw her clothes in her overnight bag and left the house.

                                    3
For the rest of the day, the victim hung out at home and reported the
incident to no one.

   The victim testified that her memories about the incident returned at
work the next day. She began panicking but continued working. When
she encountered appellant’s wife, she did not tell her what had happened
and insisted that she was busy with work.

   After the victim told her sister about the assault, the victim decided to
go to the hospital, where a nurse performed a rape exam and the incident
was reported to the police.

   Later, the police contacted the victim to participate in recorded,
controlled calls with appellant. On the calls, when confronted by the
victim, appellant repeatedly said he was sorry, but he also said he had no
memory of anything:

      . . . [T]o tell you the truth what I remember is . . . being told
      to go to bed by [my wife]. And then I—and then I went to bed
      and then I woke up and I had this massive headache.

At another point in the call he said “I don’t remember. And I apologize
because seriously, I don’t understand. I have to now figure out what the
hell’s now going on in my head.”

                       The Williams Rule Testimony

   At the admissibility hearing, the Williams rule witness identified herself
as a detective at a local law enforcement agency, assigned to a unit that
focused on sex crimes. She said she had socialized occasionally with the
Reynas.

    In October 2010, the witness made plans to attend the “Moonfest”
festival on Clematis Street with the Reynas and another person. They met
at the Reynas’ house for food and drinks before leaving for the festival. On
Clematis Street, they danced, talked, and drank “to the point of
impairment.”

    At one of the bars, the witness and appellant were in the back “just
talking [and] hanging out.” Somehow, they got pushed out the back door
into the alley and then the door closed. The door was flush with the wall
and there was no handle, so they could not get back into the bar from the
alley.


                                     4
   The witness and appellant walked to a bench and sat down. They tried
to call appellant’s wife. Appellant started trying to kiss the witness and
said she was beautiful. She protested that appellant was married and
pushed him off. At one point, the witness testified that appellant

      leaned over on top of me and started shoving his hand up
      under my skirt and ended up like touching in my vagina . . . .
      He just kind of like got on top of me. And then just shoved
      his hand—it was really quick. He just shoved his hand up my
      skirt.

Appellant’s sudden action ripped her pantyhose. The witness pushed
appellant to get out from underneath him and “took off running.” She ran
to a convenience store and used the phone to call her mother, who came
to pick her up. At trial, the witness testified consistently with her
testimony at the prior hearing, adding just a few details.

                              The Defense Case

    Appellant testified at trial. He claimed he had no memory of assaulting
the victim. On the night of the incident, he fell asleep on the couch in the
living room, which he often did when he had back problems. The next
thing he remembered was his wife waking him up and taking him to bed.
He said he was completely clothed when his wife came to get him.

    The wife testified that she never saw anything inappropriate occur
between appellant and the victim. Both Reynas testified that a key point
of the evening was to discuss the victim’s poor job performance and to alert
her that her job was in jeopardy. Both Reynas testified that appellant
suffered from a herniated disc and that he took a prescribed medication,
Flexeril, after he arrived back at home the evening of the incident

   Appellant denied the Williams rule witness’s allegations. He stated that
the witness kissed him once. He said no other sexual contact occurred.

   As to the controlled calls, appellant said he was in shock and disbelief.
He testified that the victim was a close friend in a fragile state of mind from
a breakup over the holidays. He did not know what was going on and he
wanted to calm both her and the situation down.

   Appellant was convicted of all three crimes. On appeal, he primarily
raises the Williams rule issue.



                                      5
The trial court abused its discretion by admitting collateral crime
 evidence under section 90.404(2)(c) because, under the McLean v.
   State analytical framework, there were insufficient points of
  similarity between the charged crime and the collateral crime

   For years, the admissibility of other crimes, wrongs, or acts was
evaluated under section 90.404(2)(a), Florida Statutes. The current
version of section 90.404(2)(a) provides:

      Similar fact evidence of other crimes, wrongs, or acts is
      admissible 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.

§ 90.404(2)(a), Fla. Stat. (2020).

   This section “restate[d] the Florida law as determined by Williams v.
State,” 110 So. 2d 654 (Fla. 1959). Charles W. Ehrhardt, Florida Evidence
§ 404.9 (2012 ed.). Applying this section of the evidence code, courts were
cautious when asked to admit collateral crime evidence in sexual battery
cases, so as not to run afoul of the statutory prohibition against admitting
such evidence “solely to prove bad character or propensity.” See, e.g.,
Feller v. State, 637 So. 2d 911, 916 (Fla. 1994) (addressing Williams rule
issue in order to offer guidance on retrial, explaining that sexual battery
on an underage child is not uniformly admissible under section 90.404(2),
and emphasizing that the acts at issue had only two things in common—
they involved the same type of offense and both victims were young girls);
Williams v. State, 621 So. 2d 413, 416 (Fla. 1993) (observing that “because
consent is unique to the individual the mere fact that the victim of an
unrelated assault did not consent cannot serve as evidence of nonconsent
by the victim of the charged offense”); Frieson v. State, 512 So. 2d 1092,
1093 (Fla. 2d DCA 1987) (in a sexual battery prosecution, it was error to
admit evidence that defendant had committed another sexual battery
where only similarity between the two offenses was that both were sexual
batteries).

   In 2011, the Florida Legislature enacted section 90.404(2)(c), Florida
Statutes, applicable when a defendant is charged with a “sexual offense.”
Ch. 2011-220, § 2, Laws of Fla. Section 90.404(2)(c) provides in relevant
part:



                                     6
      In a criminal case in which the defendant is charged with a
      sexual offense, evidence of the defendant’s commission of
      other crimes, wrongs, or acts involving a sexual offense is
      admissible and may be considered for its bearing on any
      matter to which it is relevant.

§ 90.404(2)(c)1., Fla. Stat. (2018). Subsection 90.404(2)(c)2. defines a
“sexual offense” as including the crimes charged in this case.

    The wording of section 90.404(2)(c)1. is strikingly similar to that of the
previously enacted section 90.402(2)(b)1., which applies in “child
molestation” cases. Because of this similarity, courts have applied the
admissibility framework of McLean v. State, 934 So. 2d 1248 (Fla. 2006),
to evidence introduced under 90.404(2)(c), even though McLean involved a
child molestation case falling under section 90.404(2)(b). See, e.g., Whisby
v. State, 262 So. 3d 228, 232 (Fla. 1st DCA 2018); Charles W. Ehrhardt,
Florida Evidence § 404.18 (2012 ed.).

   Like the statute at issue in McLean, the plain language of section
90.404(2)(c)1. is broad—collateral crime evidence is “admissible and may
be considered for its bearing on any matter to which it is relevant.” §
90.404(2)(c)1., Fla. Stat. (2018) (emphasis added). In McLean, the Florida
Supreme Court narrowed the broad sweep of section 90.404(2)(b)1. by
reading the statute in conjunction with section 90.403, Florida Statutes
(2005), which requires that the probative value of relevant evidence be
weighed against its potential for unfair prejudice. McLean, 934 So. 2d at
1251. The supreme court resolved a due process challenge to section
90.404(2)(b) by applying section 90.403 considerations to ensure that the
door is not opened “to introduction of any and all propensity evidence in
sexual molestation cases.” Id.

   Central to the section 90.403 analysis mandated by McLean is the
notion of similarity between the collateral act and the charged offense. In
upholding the constitutionality of the statute, the court noted that “[t]he
similarity of the collateral act . . . and charged offense is a critical
consideration for the trial court in conducting an appropriate weighing
under section 90.403.” Id. at 1259.

  The court explained that the similarity between the two acts is
important in determining admissibility 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

                                      7
      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.”

Id. at 1259 (quoting § 90.403, Fla. Stat.).

    McLean set forth a non-exclusive list of factors a trial court should
consider when determining whether the probative value of previous sexual
offenses is substantially outweighed by the danger of unfair prejudice:

      (1) the similarity of the prior acts to the act charged regarding
      the location of where the acts occurred, the age and gender of
      the victims, and the manner in which the acts were
      committed; (2) the closeness in time of the prior acts to the act
      charged; (3) the frequency of the prior acts; and (4) the
      presence or lack of intervening circumstances.

Id. at 1262.

   Since section 90.404(2)(c) was enacted in 2011, several cases have
interpreted the statute. For collateral sex crimes to be admissible, courts
have applied section 90.404(2)(c) to require significant similarity between
the collateral evidence and the charged crime, evidence so similar and
specific that it resembles a clear pattern of conduct. This is in contrast to
child molestation prosecutions where collateral crime evidence under
section 90.404(2)(b) is a common prosecutorial tool. See Pridemore v.
State, No. 4D19-1555, 2020 WL 4496072 (Fla. 4th DCA Aug. 5, 2020). The
law requires greater similarity under 90.404(2)(c) than in child molestation
cases because the adult cases can involve defenses—identification and
consent—that are not present in crimes against children. Evidence can
be more nuanced in adult cases and subject to different interpretations.

   For example, in Whisby, the First District held that collateral crime
evidence was admissible where it occurred less than twenty-four hours
from the charged crime and in an “almost identical fashion.” 262 So. 3d
at 232. In both instances, the defendant forced the victim into his car at
gunpoint, drove her to various locations while coercing her to engage in
sexual acts, and concluded the incident by using a tissue or napkin to
either clean himself or the victim. Id. Also, both incidents involved women
who had previously had intimate relationships with the defendant. Id.

   Courts find adequate similarity under 90.404(2)(c) when the
defendant’s conduct conforms to an identifiable pattern. See, e.g., Bruce

                                      8
v. State, 44 So. 3d 1225, 1229 (Fla. 5th DCA 2010) (“The victim’s and
[witness’s] testimony demonstrated a clear pattern of conduct.”). In Bruce,
the court pointed to the numerous and specific similarities present in both
instances in holding that the collateral evidence was admissible. See id.
The victims were both women of the same age, the defendant knew both
women from church, and he knew both were single and lived alone. Id.
The defendant befriended the women by performing handyman services
and commiserating with each about the hardship of caring for a loved one
with disabilities. Id. During the course of performing handyman services,
he not only made sexual advances but fondled the breasts of each. Id.
Afterwards, he called both women expressing his love, then anger when
they rejected his advances. Id. The court noted that the only difference
was that the defendant successfully completed the sexual battery against
the victim but was unable to with the collateral act witness. Id.

   Similarly, in Wade v. State, 265 So. 3d 677 (Fla. 1st DCA 2019), the
court found two prior acts similar to the charged crime, where in all three
instances the defendant approached the victims on a bicycle, threatened
them with a knife, and forced them to have sex with him. In Mann v. State,
281 So. 3d 503 (Fla. 4th DCA 2019), the court found the prior act was
sufficiently similar where both victims testified that the defendant
kidnapped then raped them, and where the crimes took place within one
month of each other. In Pitts v. State, 263 So. 3d 834, 840 (Fla. 1st DCA
2019), the court held that collateral crime evidence was admissible where
in both acts, the defendant was accused of digitally penetrating a female
victim while she was sleeping or passed out following a night of drinking.

   Here, the charged crimes were similar to that in Pitts, but the collateral
evidence involved a different criminal act. There is no clear pattern of
conduct between the charged crimes and the collateral act. The attack on
the Williams rule witness on a bench in a public place is only minimally
probative of the charged crime—repeated sexual batteries against a
passed-out woman on a couch in a residential living room. As the supreme
court observed in McLean, the less similar the prior acts are to the charged
crime, the less relevant they are to that crime. 934 So. 2d at 1259.

   In this case, there are some similarities between the charged crimes
and the collateral conduct; both cases involved the consumption of alcohol
on Clematis Street and an accuser who socialized with the Reynas.
However, these similarities are outweighed by the differences between the
two crimes, so there is no clear pattern of sexual misconduct:

      •   The victim was a close friend of the Reynas who regularly
          slept over at their home; the Williams rule witness was a

                                     9
          casual acquaintance who socialized occasionally with the
          Reynas.

      •   The charged crimes occurred on a couch in a private living
          room; the collateral act occurred on a public bench in an
          alley.

      •   The victim had a work relationship with the Reynas; the
          Williams rule witness had no such work relationship.

      •   The charged crimes were three sexual batteries that
          occurred over an extended period of time, with the attack
          occurring as the victim hovered between consciousness
          and sleep; the Williams rule witness was very much awake
          during the collateral act, a sudden groping of her genital
          area. 2

      •   There was a gap of over four years between the two
          incidents.

    Because of the significant disparities between the charged crimes and
the collateral act, that act is only weakly probative of the charged crimes.3
As the supreme court observed in McLean, where a collateral crime is so
minimally probative, it is “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’” under section 90.403. 934 So. 2d
at 1259. Moreover, in this case, the fact that the Williams rule witness
was a detective in a sex crimes unit carried an additional risk of undue
prejudice in a section 90.403 analysis, as juries often afford great weight
to the testimony of police officers. See, e.g., Salomon v. State, 267 So. 3d
25, 32 (Fla. 4th DCA 2019) (explaining that police officers “bring with their
testimony an air of authority and legitimacy,” and that a jury “is inclined
to give great weight” to such testimony).

2We do not blame the victim here. We are simply analyzing the manner in which
the acts were committed, as the law requires us to do under McLean.

3The dissent dismisses significant differences between the charged acts and the
collateral act as “immaterial.” However, the dissent’s view of similarity would
open the door too wide under section 90.404(2)(c)—any collateral act of sexual
battery would be admissible as Williams rule evidence in the prosecution of the
charged act, so long as both acts involved alcohol and an opportunity that arose
when the defendant was alone with the accuser.

                                      10
    Without the collateral evidence, the jury faced a difficult question in
this case—what to make of testimony of the two primary actors who had
consumed such large amounts of alcohol that their memories of the crucial
night were dim? In such a circumstance, evidence of the prior, dissimilar
conduct smoothed over the difficulties in the state’s case. In applying
section 90.404(2)(c), trial courts are gatekeepers in ensuring that evidence
of prior acts of sexual misconduct do not unfairly prejudice a defendant or
mislead the jury. Here, the trial court abused its discretion in admitting
the Williams rule witness’s testimony. Without adherence to the McLean
requirement of significant similarity, trials of sexual offenses would too
often descend into character assassination by the introduction of
marginally similar bad acts.

   The dissent uses a buffet approach to the law of evidence by combining
distinct portions of the evidence code to buttress its case for admissibility.
The dissent suggests that the collateral crime evidence was admissible to
prove the “absence of mistake,” a consideration under subsection
90.404(2)(a). However, mistake is not a defense to sexual battery—a
defendant cannot avoid criminal responsibility for attacking the victim by
saying that he thought he was having consensual sex with his wife.

    Under subsection 90.404(2)(a), collateral crime evidence is admissible
only “when relevant to prove a material fact in issue.” “State of mind is
not a material fact in a sexual battery charge, nor is intent an issue.” Coler
v. State, 418 So. 2d 238, 239 (Fla. 1982). As the Florida Supreme Court
has explained, “in rape prosecutions, it is clear that while a general intent
is involved in the crime, no specific intent is requisite other than that
evidenced by the doing of the acts constituting the offense.” Askew v.
State, 118 So. 2d 219, 222 (Fla. 1960). Whether appellant knew the
identity of the victim he attacked was not a material fact in issue in this
case, so the collateral crime evidence was not admissible to prove an
absence of mistake or accident under subsection 90.404(2)(a). See Hebel
v. State, 765 So. 2d 143, 144 (Fla. 2d DCA 2000) (in case involving
defendant’s sexual battery of “his then spouse,” evidence of other crimes
held inadmissible to prove the defendant’s state of mind); Killian v. State,
730 So. 2d 360, 362 (Fla. 2d DCA 1999) (in prosecution for sexual battery
of a child, holding that the state’s introduction of “dirty” books in the
defendant’s possession to show his state of mind and intent “was improper
because state of mind is not a material fact in a sexual battery case and
intent is not an issue”); Williams v. State, 619 So. 2d 487, 493 (Fla. 1st
DCA 1993) (holding that where the state sought to admit evidence of other
crimes to prove “absence of mistake or accident,” such evidence was


                                     11
inadmissible where “there was no material issue of fact relating to either
of these facts”).

   Finally, the dissent underplays the impact of the collateral crime
evidence by stating that the testimony “took up only ninety minutes” of
witness testimony. The prosecutor emphasized the collateral crime
evidence in closing argument to argue that appellant had the propensity
to commit the charged crimes. For example, the prosecutor argued:

      What we’re saying is we know that Jose Reyna, when
      presented with the opportunity of a woman who is intoxicated,
      who . . . is maybe a little disoriented, when is alone with her
      away from his wife, he will take the opportunity to do
      something to her without her consent. And it’s a sexual act.

                                    ***

      All of the evidence points to one conclusion. There is the
      testimony of [the victim]. The defendant on the controlled call
      supports what she sa[id] happened. The testimony of [the
      Williams rule witness]. This is not some mistake. This is not
      some confusion. This is what he does.

   On the remaining issue, we hold that the trial judge did not abuse her
discretion in allowing appellant’s prior convictions to be used for
impeachment.

   Reversed and remanded for a new trial.

WARNER, J., concurs.
GERBER, J., concurs in part and dissents in part with opinion.

GERBER, J., concurring in part and dissenting in part.

   I respectfully dissent from the majority’s holding that the trial court
abused its discretion by admitting evidence of appellant having committed
a sexual battery upon the Williams rule witness. My dissenting opinion
will be presented in two sections: (1) the state properly relied upon the
Williams rule sexual battery to prove the instant sexual battery; and (2)
the similarities between appellant’s sexual battery of the instant victim
and the Williams rule witness are not outweighed by the differences
between the two crimes.

         1. The state properly relied upon the Williams rule

                                    12
          sexual battery to prove the instant sexual battery.

    In the second controlled phone call between appellant and the victim
in the instant case, the victim confronted appellant for having kissed her,
licking her chest, putting his hands down her pants, performing oral sex
on her, and raping her. Appellant responded:

      Honey, I am so sorry. Please, I’m so sorry. I didn’t -- I didn’t
      mean to touch you. I was thinking maybe that you was [my
      wife] maybe, I don’t know. I’m so sorry. I apologize, I’m so
      sorry. Please. Please, I am so sorry. I’m trying to remember.

(emphasis added).

    Based on appellant’s statement, the state filed its notice of its intent to
offer Williams rule evidence pursuant to section 90.404(2)(c)1., Florida
Statutes (2015), to show that appellant’s sexual battery of the victim was
not an innocent mistake of thinking he was having consensual sexual
relations with his wife. Specifically, the state alleged:

      According to [the Williams rule witness], she met the
      defendant through his wife. On the date of the sexual battery,
      [the Williams rule witness] was hanging out with the
      defendant and his wife. While at a club in downtown West
      Palm Beach, the Defendant pushed [the Williams rule witness]
      through a door. The Defendant became aggressive and ripped
      her stockings and penetrated her vagina with his fingers. This
      evidence is relevant to issues of ... motive, intent, to show
      absence of mistake, and to show the defendant’s sexual
      interest in women he meets through his wife.

(emphasis added).

  Although the state’s Williams rule notice expressly referred to section
90.404(2)(c)1., which provides that evidence of the defendant’s other
sexual offenses are “admissible and may be considered for its bearing on
any matter to which it is relevant” (emphasis added), the state went a step
further by specifically identifying the material facts upon which the
Williams rule evidence was relevant, that is, to prove appellant’s motive,
intent, and absence of mistake, as permitted under the narrower section
90.404(2)(a).

   The probative value of this Williams rule evidence was not substantially
outweighed by the danger of unfair prejudice to appellant, based on the

                                      13
non-exclusive McLean factors. The manner in which the acts were
committed were extremely similar:

  •   Both the Williams rule witness and the instant victim were single
      adult females. The instant victim was thirty-seven years old at the
      time of the act charged. Although the Williams rule witness was
      never asked her age, other contextual clues in her testimony (years
      of work experience) suggest she was also in her thirties when the
      prior sexual battery occurred.

  •   Both the Williams rule witness and the instant victim had become
      friends with appellant’s wife and had socialized with appellant and
      his wife at their home.

  •   Both the night of the prior sexual battery and the night of the instant
      sexual battery began with the Williams rule witness and the instant
      victim drinking at the Reynas’ home.

  •   Both nights continued with the Williams rule witness and the
      instant victim going out with appellant and his wife for drinking and
      dancing at bars within the downtown West Palm Beach
      entertainment district.

  •   Both the Williams rule witness and the instant victim became very
      impaired while drinking at the downtown bars.

  •   Both the prior sexual battery and the instant sexual battery
      occurred in locations where no one else was present – the prior
      sexual battery occurred in a dark deserted alley, and the instant
      sexual battery occurred in appellant’s living room after appellant’s
      wife had gone to bed.

  •   Appellant’s first physical contact with both the Williams rule witness
      and the instant victim was kissing them on the mouth.

  •   Both the Williams rule witness and the instant victim reminded
      appellant he was married and attempted to physically resist him (the
      Williams rule witness tried to push appellant away, and the instant
      victim “swatted” at appellant), but appellant continued his sexual
      battery.

  •   Appellant physically got on top of both the Williams rule witness and
      the instant victim.

                                     14
   •   Appellant reached through the clothes of both the Williams rule
       witness and the instant victim to penetrate their vaginas with his
       fingers.

   The state properly relied upon the foregoing similarities to prove
appellant’s sexual battery of the instant victim was, beyond a reasonable
doubt, not an innocent mistake of thinking he was having consensual
sexual relations with his wife. The foregoing similarities further proved,
beyond a reasonable doubt, appellant’s motive and intent of committing
sexual battery upon his wife’s very impaired friends if an opportunity arose
when he was alone with the women long enough to commit the sexual
battery.

    This conclusion is consistent with other cases in which our sister
courts have admitted Williams rule evidence to prove a defendant’s modus
operandi of taking advantage of a relationship to commit sexual battery.
See Pitts v. State, 263 So. 3d 834, 837-39 (Fla. 1st DCA 2019) (evidence
that defendant had years earlier penetrated a woman after she passed out
following a night of drinking was admissible to prove the present sexual
battery of another woman who was sleeping after a night of drinking);
Bruce v. State, 44 So. 3d 1225, 1229 (Fla. 5th DCA 2010) (“The victim’s
and [the Williams rule witness’s] testimony demonstrated a clear pattern
of conduct. The women were the same age, Bruce knew both women from
church, and he knew both were single and lived alone. Bruce first
befriended the women by performing handyman services and
commiserating with each about the hardship of caring for a loved one with
disabilities. During the course of performing handyman services, he not
only made sexual advances but fondled the breasts of each. The only
difference was that he successfully completed the sexual battery against
the victim, but was unable to [complete the sexual battery with the
Williams rule witness who fought him off].”).

       2. The similarities between appellant’s sexual battery
         of the instant victim and the Williams rule witness
   are not outweighed by the differences between the two crimes.

   The majority cites five differences between appellant’s sexual battery of
the instant victim and the Williams rule witness to justify its ultimate
conclusions that the prior sexual battery was “only weakly probative of the
charged crimes” and thus “the trial court abused its discretion in
admitting the Williams rule witness’s testimony.” Maj. op. at 10. As
discussed below, each of those five differences are either factually or legally
mistaken or immaterial.

                                      15
   •   “The victim was a close friend of the Reynas who regularly slept
       over at their home; the Williams rule witness was a casual
       acquaintance who socialized occasionally with the Reynas.”

    In actuality, the Williams rule witness was more than a casual
acquaintance. Although she had not slept over at the Reynas’ home, she
had been to the Reynas’ home a few times and was a guest at the Reynas’
wedding. Thus, like the instant victim, the Williams rule witness’s
relationship was close enough that she was invited to the Reynas’ home to
begin a night of drinking, and then accompanied them to downtown bars
for a night of dancing and more drinking. When she became very impaired,
and no one else was present in the dark deserted alley, appellant took
advantage of the opportunity to commit a sexual battery upon her, just as
he did with the instant victim, another close friend, at the Reynas’ home.
Thus, the Williams rule evidence corroborated appellant’s motive, intent,
and absence of mistake in committing the sexual battery upon the instant
victim.

   •   “The charged crimes occurred on a couch in a private living
       room; the collateral act occurred on a public bench in an alley.”

   This difference is immaterial. Appellant’s motive and intent was to
commit sexual battery upon his wife’s friends when the opportunity
presented itself, that is, when his wife’s friends became very impaired and
no one else was present, regardless of location. Thus, appellant took
advantage of the dark deserted alley to commit a sexual battery upon the
impaired Williams rule witness, and later took advantage of the impaired
instant victim in his living room with while his wife slept in their bedroom.

   •   “The victim had a work relationship with appellant’s wife; the
       Williams rule witness had no such work relationship.”

   This difference is immaterial. As stated above, the Williams rule
witness’s relationship was close enough that she had been to the Reynas’
home a few times, socialized with them, and had been a guest at the
Reynas’ wedding.

   Also immaterial is the fact that the Williams rule witness was a detective
in a sex crimes unit. The majority argues that fact carried an additional
risk of undue prejudice in a section 90.403 analysis, as juries often afford
great weight to the testimony of police officers. See, e.g., Salomon v. State,
267 So. 3d 25, 32 (Fla. 4th DCA 2019) (explaining that police officers “bring
with their testimony an air of authority and legitimacy,” and that a jury “is

                                      16
inclined to give great weight” to such testimony). However, detectives in
sex crimes units can become sexual battery victims too, and should not
be excluded as possible Williams rule witnesses on that basis. Here, the
Williams rule witness’s only role was being another of appellant’s wife’s
very impaired friends whom appellant sexually attacked when the
opportunity presented itself, just as he did to the instant victim.

   •   “The charged crimes were three sexual batteries that occurred
       over an extended period of time, as the victim hovered between
       consciousness and sleep; the Williams rule witness was very
       much awake during the collateral act, a sudden groping of her
       genital area.”

    This difference is immaterial. The only reason why “three sexual
batteries … occurred over an extended period of time” to the instant victim
as she “hovered between consciousness and sleep,” is because she was so
much more impaired than the Williams rule witness, who was able to fight
back and get away. Cf. Bruce, 44 So. 3d at 1229 (the fact that the
defendant successfully completed the sexual battery against the victim,
but was only able to fondle the Williams rule witness’s breasts, was an
insignificant difference, because the Williams rule witness was able to
fight off the defendant before he could complete the sexual battery).

    That is why the majority’s attempt to distinguish the striking
similarities between the instant case and Pitts v. State, 263 So. 3d 834
(Fla. 1st DCA 2019), is ill-conceived. As stated above, in Pitts, our sister
court held that Williams rule evidence from years earlier was admissible
where in both acts, the defendant was accused of digitally penetrating a
female victim while she was sleeping or passed out following a night of
drinking. Id. at 837-39. Like the Williams rule notice in the instant case,
the Pitts notice had stated this collateral crime evidence would be
introduced “pursuant to Florida Statute 90.404(2) for purposes of proving
a material fact in issue: specifically the requisite elements of intent
(including absence of mistake or accident), modus operandi.” Id. at 837
(internal brackets and quotation marks omitted).

   Despite those striking similarities to the instant case, the majority
attempts to distinguish Pitts as follows:

       Here, the charged crimes were similar to that in Pitts, but the
       collateral evidence involved a different criminal act. There is
       no clear pattern of conduct between the charged crimes and
       the collateral act. Groping a woman on a bench in a public
       place is only minimally probative of the charged crime—

                                     17
       repeated sexual batteries against a passed-out woman on a
       couch in a residential living room.

Maj. op. at 9 (emphasis added). The majority’s reasoning is unfortunately
misguided. The only reason why the Williams rule witness was not also
the victim of “repeated sexual batteries” is because she was less impaired
than the instant victim, and thus more able to fight back and get away.
Thus, the majority ultimately understates the facts by claiming appellant
was merely “groping a woman on a bench in a public place.” In actuality,
appellant was taking advantage of being with the impaired Williams rule
witness in a dark deserted alley so he could attempt to rape her, just as
he was later able to rape the more severely impaired instant victim in his
living room when no one else was present.

   •   “There was a gap of over four years between the two incidents.”

    I recognize the McLean court identified “the closeness in time of the
prior acts to the act charged” as one of the factors which a trial court
should evaluate when determining whether the probative value of previous
offenses is substantially outweighed by the danger of unfair prejudice. 934
So. 2d at 1262. However, I do not consider “a gap of over four years
between the two incidents” to be material in this case, for three reasons.

   First, as mentioned above, in Pitts, our sister court held that evidence
that defendant had “years earlier” penetrated a woman after she passed
out following a night of drinking was admissible to prove the present
sexual battery of another woman who was sleeping after a night of
drinking. 263 So. 3d at 837.

    Second, permitting the state to have presented Williams rule evidence
from “years earlier” is consistent with section 90.610(1), Florida Statutes
(2015), which permits a witness’s credibility to be impeached by prior
convictions for felonies and crimes of dishonesty going back many years,
if appropriate. See Peoples v. State, 576 So. 2d 783, 789 (Fla. 5th DCA
1991) (noting that, although section 90.610(1)(a), “precludes evidence in a
civil trial of a conviction so remote in time as to have no bearing on the
present character of a witness,” section 90.610(1) does not otherwise
prohibit such evidence in a criminal trial). As our sister court stated in
Nehring v. State, 225 So. 3d 916 (Fla. 1st DCA 2017):

       The only test for the admissibility of a prior conviction is
       whether the conviction has any bearing on the witness’s
       credibility.  The remoteness of the conviction will most
       certainly be a factor in determining whether it bears on the

                                     18
      witness’s credibility, but there is no bright-line rule for when a
      conviction becomes too remote to bear on the witness’s
      credibility.  The determination is within the trial court’s
      discretion, and a trial court abuses its discretion only when its
      decision is arbitrary or fanciful.

Id. at 918 (emphasis added; internal citation omitted). Given that a trial
court’s section 90.404(2) determination has similar considerations to a
section 90.610(1) determination, no reason exists here why “a gap of over
four years between the two incidents” should be material in this case.

   Third, and most importantly, the method by which appellant committed
the sexual batteries against the Williams rule witness and the instant
victim was partially based on factors beyond appellant’s control and
partially based on opportunity, the combination of which may have
required years to develop before appellant could offend again. Appellant’s
modus operandi required four events to occur: (1) his wife would have to
become friends with another woman, (2) that relationship would have to
develop to the point when the woman would socialize often with the
Reynas, (3) an occasion would have to occur when the woman would drink
to the point of impairment, and (4) an opportunity would have to occur
when the woman was with appellant in a location where no one else would
be present for several minutes, if not more, so appellant could take
advantage of the woman. Given that this combination of factors may have
required years to occur, the fact that at least two incidents occurred just
over four years apart should not be surprising. Cf. LaValley v. State, 30
So. 3d 513, 515-16 (Fla. 5th DCA 2009) (trial court did not abuse its
discretion by allowing Williams rule evidence of another familial
molestation occurring eleven years earlier; “[A]lthough the molestations
occurred years apart, that appears more to be a function of opportunity
than anything else.”).

                                Conclusion

   Based on the foregoing, I respectfully dissent from the majority’s
holding that the trial court abused its discretion by admitting evidence of
appellant having committed a sexual battery upon the Williams rule
witness. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)
(“Discretion … is abused when the judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused
only where no reasonable [person] would take the view adopted by the trial
court.”) (emphasis added).



                                     19
   I also note the trial court read the cautionary Williams rule instruction,
that is, Florida Standard Jury Instruction (Criminal) 2.4, to the jury before
the Williams rule witness’s testimony. Further, this evidence did not
become a feature of the lengthy trial or overwhelm evidence of the charged
crime. The Williams rule witness and her mother were the last two out of
ten state witnesses to testify, and their testimony took up only ninety
minutes out of three full days’ of witness testimony in the trial as a whole.
During the state’s one hour closing argument, the state discussed the
Williams rule evidence for only three to four minutes. See Stubbs v. State,
275 So. 3d 631, 636 (Fla. 4th DCA 2019) (“On this record, the collateral
act evidence did not become a feature of the trial or overwhelm the
evidence of the charged crime.”).

   Lastly, and without further discussion, I concur with the majority’s
holding that the trial court did not abuse its discretion in allowing
appellant’s prior convictions to be used for impeachment.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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